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Land - Ownership -
Traditional evidence - Whether
or not the portion of the land
which had allegedly been
trespassed by defendant family
is the subject matter of
dispute. - Whether or not the
portion of the plaintiff land is
identifiable.- Wether or not the
Court of Appeal’s interference
with the findings of fact by the
trial judge is unjustified in
law.-
HEADNOTES
The parties pleaded two
contrasting stories of how each
of them acquired the land. The
case of
plaintiff/appellant/respondent,
hereafter referred to as
“plaintiff”, is that the land,
containing approximately 569
acres, was acquired through
settlement in 1854 by her
ancestor called Ayi Blaflatsi
who established a village on the
land which was named
“Krobiwoho”. She said her
family, the Adutso Family of
Osu, exercised rights of
ownership over the land from
that time to the time of the
litigation.
Defendant/respondent/appellant,
to be referred to as
“defendant”, on his part said
his family land, was first
settled upon by his ancestor
called Nii Odartey Sro over 200
years ago and that he
established a village on the
land and named it Adanse. He too
said his family exercised rights
of ownership on the land for
over 200 years. After a full
trial, the High Court, in a
terse two paragraph judgment
dated 4 December, 2010, held
that the plaintiff failed to
lead evidence to positively
identify the land she claimed
and that her star witness was
not credible. The court
therefore dismissed the case of
the plaintiff and granted the
counterclaim of the defendant
The plaintiff appealed against
the judgment to the Court of
Appeal. Whilst criticising the
trial judge for failing to give
full reasons in which he would
have stated his findings on the
primary facts in dispute in the
case, the court determined the
appeal on the evidence on record
and the submissions of the
parties since an appeal is a
rehearing. In its judgment the
Court of Appeal allowed the
appeal, entered judgment for the
plaintiff and dismissed the
counterclaim of the defendant
HELD
It would appear that when
PW2 testified and exposed
defendant as trying to suborn
him, defendant lost all hope in
his case hence his
representative’s testimony was
porous and he was evasive
throughout his cross
examination. On all the evidence
adduced at the trial, we hold
that the Court of Appeal was
right in preferring plaintiff’s
case to that of defendant.
Accordingly defendant’s appeal
fails in its entirety and same
is dismissed. The judgment of
the Court of Appeal dated 20th
November, 2014 is hereby
affirmed.
STATUTES REFERRED TO IN JUDGMENT
Limitations Act 1972 (NRCD54)
CASES REFERRED TO IN
JUDGMENT
Anane v Donkor [1965] GLR 188.
Laryea v Oforiwah [1984-86] 2
GLR 410 CA
Agbosu v Kotey [2003-2004] SCGLR
420 SC
Adjeibi-Kojo v Bonsie 1957 3
WALR 257;
Mmra v Donkor [1992-93] Part 4
GBR 1632
BOOKS REFERRED TO IN JUDGMENT
DELIVERING THE LEADING JUDGMENT
PWAMANG, JSC.
COUNSEL
KENNETH KUDZORDZIE ESQ. FOR
THE APPELLANT.
PROSPER NYAHE ESQ. FOR THE
RESPONDENT.
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JUDGMENT
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PWAMANG, JSC.
This case was commenced in May,
2006 in the High Court, Accra
whereby the two parties claimed
ownership of land near Abokobi
in the names of their respective
families. The parties pleaded
two contrasting stories of how
each of them acquired the land.
The case of
plaintiff/appellant/respondent,
hereafter referred to as
“plaintiff”, is that the land,
containing approximately 569
acres, was acquired through
settlement in 1854 by her
ancestor called Ayi Blaflatsi
who established a village on the
land which was named “Krobiwoho”.
She said her family, the Adutso
Family of Osu, exercised rights
of ownership over the land from
that time to the time of the
litigation.
Defendant/respondent/appellant,
to be referred to as
“defendant”, on his part said
his family land, which is about
593 acres, was first settled
upon by his ancestor called Nii
Odartey Sro over 200 years ago
and that he established a
village on the land and named it
Adanse. He too said his family
exercised rights of ownership on
the land for over 200 years.
After a full trial, the High
Court, in a terse two paragraph
judgment dated 4 December, 2010,
held that the plaintiff failed
to lead evidence to positively
identify the land she claimed
and that her star witness was
not credible. The court
therefore dismissed the case of
the plaintiff and granted the
counterclaim of the defendant.
The judge promised to give full
reason for his decision but he
never did.
The plaintiff appealed against
the judgment to the Court of
Appeal. Whilst criticising the
trial judge for failing to give
full reasons in which he would
have stated his findings on the
primary facts in dispute in the
case, the court determined the
appeal on the evidence on record
and the submissions of the
parties since an appeal is a
rehearing. In its judgment the
Court of Appeal allowed the
appeal, entered judgment for the
plaintiff and dismissed the
counterclaim of the defendant.
Being dissatisfied with the
decision of the Court of Appeal,
defendant has appealed to this
court as the final appellate
court on the following grounds;
a. The court of Appeal
erred when it considered the
evidence of
Plaintiff/Appellant/Respondent
star witness PW2 as reliable
contrary to the specific finding
of the trial judge that PW2 is
unreliable.
b. The Court of Appeal
erred by ignoring the
Defendant/Respondent plea of
statute of limitation and
awarded judgment in favour of
Plaintiff/Appellant thereby
occasioning a miscarriage of
justice.
c. The Court of Appeal
erred when it gave judgment to
Plaintiff/Appellant contrary to
the evidence on record.
d. The Court of Appeal
erred when confronted with
competing traditional evidence,
it ignored the recent acts of
ownership exercised by
Defendant/Respondent and awarded
judgment in favour of
Plaintiff/Appellant.
e. The Court of Appeal
erred when it ascribed meaning
to answer given by PW2 under
cross-examination in the absence
of any ambiguity on the record
thereby adorning PW2’s evidence
with cloak of credibility.
f. The Court of
Appeal’s interference with the
findings of fact by the trial
judge is unjustified in law.
g. The Court of Appeal
erred when it ignored the onus
on the
Plaintiff/Appellant/Respondent
to establish the identity of
land she claimed in a
declaration of title and
concluded that the issue of
identity is one of agreed fact.
In his statement of case in this
court the defendant made
reference to two issues he filed
as additional issues for
determination at the application
for directions and contended
that both the High Court and the
Court of Appeal did not resolve
them in their judgments. The
issues are as follows:
“2. Whether or not the
portion of the land which had
(sic) allegedly been trespassed
by defendant family is the
subject matter of dispute.
3. Whether or not the
portion of the plaintiff land is
(sic) identifiable.”
As a result, when this appeal
came on for hearing the court
drew the attention of the
parties to the issue of the
extent of land trespassed upon
by defendant and wondered
whether the court was properly
placed to determine the appeal.
The court adjourned hearing of
the appeal and requested the two
lawyers of the parties to study
the record and address it on the
issue. When the hearing of this
appeal resumed on the adjourned
date both lawyers were of the
view that the appeal could be
determined on the basis of the
record before the court. In any
event, upon a closer reading of
the pleadings it has become
clear to us that the plaintiff
did not limit her allegations of
trespass against defendant to
only a portion of the land she
claimed which she described.
Plaintiff pleaded as follows in
her latest amended statement of
claim filed on 26/8/2010
(p.261);
3.
Plaintiff avers that her
ancestor Ayi Blafasi acquired a
parcel of land through
settlement and a portion of the
land which shares boundary with
Ablor Adjei through purchase a
long time ago and same is
situate at Abokobi and stretches
between Boi and Ablor Adjei
villages and is bounded on the
North-West by Dr. Graham’s land,
Akporman land and Akoble family
land measuring a total distance
of 5119.88ft more or less, on
the North-West by Obedeka family
land measuring a total distance
of 828.75 more or less, on the
North-East by Obedeka family
land measuring a total distance
of 2648.75ft more or less, on
the North by Aboman village
land, Nyamekrom and Akokome
village land measuring a total
distance of 9495.19ft more or
less, on the south-East by Nii
Dua family land measuring a
total distance of 2096.64ft more
or less on the South-West by
Ablorh Adjei family land
measuring a total distance of
3513.2ft more or less, on the
south-west by Deikpei family
land measuring a total distance
of 1405.86ft more or less.
10. Without leave and licence
from the plaintiff and elders of
Adutso family, the defendant and
members of Odartey Sro family
recently trespassed on
plaintiff’s family land the
subject matter of this suit
commenced building projects and
also indiscriminately alienating
it to developers.
11. Notwithstanding several
repeated warnings by the
plaintiff to the defendants and
members of his family to desist
from their unlawful acts of
trespass they still continue
with same.”
From the above pleadings, the
additional issues filed by
defendant do not arise since
plaintiff’s case of trespass is
in respect of her whole land. In
any case the Court of Appeal did
not make an award of damages for
trespass in its judgment on
appeal before us. One of the
grounds on which defendant has
impeached the judgment of the
Court of Appeal is the alleged
failure by plaintiff to identify
the land she claimed and we
shall deal with it in our
judgment.
As has already been stated, an
appeal is by way of rehearing
and the appellate court is
required to peruse the whole
record and come to its own
conclusions on the evidence and
the law applicable to the case
and determine if the judgment
appealed against was justified.
If the findings and conclusions
of the court are supported by
the evidence on record the
appellate court would not
disturb those findings and
conclusions. However, if this
court as a final appellate court
comes to the conclusion that the
findings are not supported by
the evidence on record or that
the court below based its
judgment on a wrong proposition
of law, it will set aside the
findings and reverse the
judgment.
Though defendant himself placed
Ground G, the ground of appeal
dealing with the issue of
identity of the land being
claimed, as the last issue we
deemed it appropriate to start
our judgment with a discussion
of that ground. It is settled
law that a party who claims for
declaration of title to land,
injunction and possession must
clearly identify the land. The
rationale for this rule has been
explained by Ollenu JSC in the
case of Anane v Donkor
[1965] GLR 188. At page 192
of the report the eminent jurist
said as follows:
“Where a court grants
declaration of title to land or
makes an order for injunction in
respect of land, the land the
subject of that declaration
should be clearly identified so
that an order for possession can
be executed without difficulty
and also if the order for
injunction is violated the
person in contempt can be
punished. If the boundaries of
such land are not clearly
established, a judgment or order
of the court will be in vain.
Again, a judgment for
declaration of title to land
should operate as res
judicata to prevent the
parties relitigating the same
issue in respect of the
identical subject matter but it
cannot so operate unless the
subject matter thereof is
clearly identified.”
From the decision in Anane v
Donkor supra, the relevant
question to be answered in this
case is whether the plaintiff
adduced evidence to establish
clearly the identity of the land
she claimed such that if
declaration of title, injunction
and possession were granted her,
the reliefs will refer to an
identifiable land? The answer is
in the affirmative. Plaintiff
tendered a plan as Exhibit “B”
which is signed by a licensed
surveyor and the Regional
Surveyor for Greater Accra
Region. The plan clearly
identified the land claimed by
plaintiff and can easily be
identified for purposes of
contempt for breach of
injunction, recovery of
possession and res judicata.
Using plans to identify
subject-matter land for purposes
of declaration of title and
associated reliefs has been
approved by the courts in the
cases of Laryea v Oforiwah
[1984-86] 2 GLR 410
CA and Agbosu v Kotey
[2003-2004] SCGLR 420 SC. In
times past identity of land
claimed in litigation was
established by reference to
physical features such as
streams, prominent trees,
mountains and lands of
established boundary owners.
Those features cannot be more
accurate than plans prepared
with the use of modern
scientific instruments and
capable of being transposed unto
the ground with ease. A plan
tendered in evidence or
otherwise accepted by parties in
proceedings in court which
clearly delimits land claimed
constitutes sufficient proof of
identity of the land for
purposes of the reliefs of
declaration of title,
injunction, and possession.
The defendant who is holding
unto the trial court’s finding
that plaintiff did not
positively prove the exact
identity of the land she was
claiming is himself relying on
the site plan contained in the
statutory declaration he
tendered to establish the
identity of the land claimed in
his counterclaim and granted by
the High Court. Exhibit “D” is
the report of a search conducted
in the records of the Lands
Commission which showed
transactions by both parties in
respect of the land under
litigation in this case.
Furthermore, both parties in
their pleadings identified Dr
Graham as a common boundary
owner to the North-West of the
land each of them claimed and
led evidence of ownership in
respect of that land. Whereas
plaintiff’s evidence was that
the original Krobiwoho
settlement was on Adutso land,
defendant in cross examination
of PW2 contended that it was on
Nii Odartey Sro land. In the
circumstances, the land claimed
by the parties is sufficiently
identified and depending on
which party proved a better
title, the reliefs endorsed in
the claim or counterclaim can be
effectively granted by the
court. Ground G of the appeal
has no merit and same is
dismissed.
Apart from Ground B of the
grounds of appeal which deals
with the plea of the statute of
limitation, all the other
grounds involve an evaluation of
the evidence led at the trial
and they will be considered
together. To begin with, we
shall state the principle in the
case of Adjeibi-Kojo v Bonsie
1957 3 WALR 257;
which is applicable in this case
and has been relied upon by both
parties in their statements of
case. In that case it was held
at page 260 that:
“Where there is a conflict of
traditional history one side or
the other must be mistaken, yet
both may be honest in their
belief… The best way is to test
the traditional history by
reference to the facts in recent
years as established by evidence
and by seeing which of the two
competing histories is the most
probable.”
So where the traditional history
conflicts, the court is required
to examine the evidence and
consider acts of ownership and
possession of the disputed land
by each of the parties and their
grantees within living memory in
the form of farming, building
and other activities which are
consistent with title to the
land. We shall therefore review
the evidence led at the trial
and consider the acts of
possession and ownership by each
of the parties.
In this case, both parties live
at Osu in Accra where they hail
from. Plaintiff adduced evidence
through her sister and lawful
attorney; Margaret Adorkor
Akuffo, who, after narrating the
history of the acquisition of
the land as pleaded, tendered a
site plan made in 1955 by a
surveyor called Geo D. Plange,
in the name of Nitaku Holding
Industries. She stated that it
was a lease made by plaintiff’s
predecessor in respect of the
land being claimed by plaintiff
in this case. She however did
not tender the lease itself but
tendered a Search Report from
Lands Commission which was made
in respect of the land and the
report showed a registered grant
from Naa Shormey to Nitaku
Holding Ltd in 1973.
Plaintiff’s representative
testified that it was a renewal
of the 1955 lease by the then
head of the plaintiff’s family.
What these documents show,
particularly Exhibit “D”; the
Search Report, is that the
plaintiff’s family have been
dealing with the land as owners
at least since 1973. However,
Exhibit “D” also shows that the
defendant’s family made a
Statutory Declaration in 1974
claiming to be owners of the
land. What is therefore required
are acts of possession by the
parties in line with the
principle in Adjeibi-Kojo v
Bonsie .
PW1, Emma Lamiokor Borley, a
daughter of Shormey Dowuona who
was head of the plaintiff’s
family in the 1970s, testified
on oath and corroborated the
evidence of the plaintiff’s
representative. She confirmed
that the family had tenant
farmers on the land who
regularly delivered foodstuff to
them at Osu. One of the tenant
farmers who settled on the land
was Dzebu Xenyo also known as
Amega Dzebu. His son called
Edoe Dzebu who was aged 80 years
testified as PW2. Part of his
evidence was follows:
“It was he Blaflatsi who founded
the village Krobiwoho. After he
died my father took over the
said village. My father
cultivated the land with olive
pepper, cassava etc on the
land. The land in dispute now
is the land my father
cultivated. I together with my
siblings were born in the said
town of Krobiwoho… I know
Shormey Dawuona. She was an old
lady. She is dead now. During
her life time, after we
harvested the crops she was the
one who received the crops we
harvested…..Apart from farming
activities my late father had
Voodoo on the land. The Voodoo
is called Nana Atongo. That is
the god I worship.”
Under cross examination the
witness stated that the
defendant’s family members
visited him during the pendency
of this case with drinks and
money and requested him to
testify for them against Adutso
family in respect of ownership
of the land in dispute. He said
he told them that if he did so
he would be putting a rope
around his neck. He said he
refused defendant’s request as
the truth was that Adutso family
were owners of the land and used
to come and celebrate Homowo at
the village and he would drive
them in his father’s Morris
vehicle back to Osu. He
pointed out the old
Morris vehicle to members of
defendant family who came to get
him to testify in support of
their claim. He said he poured
libation to his deceased father
and told him enemies had visited
him.
Counsel for defendant did not
deny this piece of evidence
about the visit to PW2 by his
client and the interaction they
had. This means that what PW2
said concerning the attempt to
suborn him did happen. PW2 was
firm and consistent throughout
his evidence and cross
examination.
Strangely, the trial High Court
in its brief judgment criticized
PW2 in the following words:
“The evidence of the star
witness Doe Dzebu is most
unreliable since he moved from
saying that he and his siblings
are living on plaintiffs land to
end by saying, he lives on
Graham’s land and that Dr.
Graham is his Landlord.”
We shall set out the evidence of
PW2 on this matter which was
elicited through cross
examination.
Q. Do you know Rev.
Graham?
A. Yes, I do.
Q. How do you know
him?
A. Rev Graham
is the father of Dr. Graham and
their land is around the area we
are.
Q. In your
evidence you also stated that
Graham is not your landlord but
it is rather the Adutso family
who are your landlords.
A. I said
Krobiwoho was established on
Adutso family land but it has
expanded onto Graham’s now.
Q. Currently, where are
you leaving? Are you on Adutso
land or
Graham’s land?
A. Currently I am
on Graham’s land”
As the Court of Appeal observed
in its judgment, there is no
inconsistency in this evidence.
PW2 is saying his father lived
with them on Adutso family land
about 80 years ago but with the
expansion of the town they have
moved to live at the part of the
town which falls in Graham’s
land. His detailed evidence of
the possession of the land by
his late father and they his
children who were placed there
by Adutso family was not
impeached. If defendant thought
that it would be beneficial to
get PW2 on their side, then it
could only mean that he was
indeed knowledgeable about the
land. The Court of Appeal was
therefore right in accepting the
evidence of PW2 as proof of
possession and ownership of the
land by plaintiff.
In further proof of acts of
ownership and possession,
plaintiff led evidence through
PW3, Jacob Adjetey Adjei, 73
years old. He testified
positively as to his family’s
farming activities on the land
with the leave and licence of
Adutso family. He also talked of
an old soldier called Papa
Adanse who was settled on the
land by plaintiff’s family.
Another person settled on the
land by plaintiff family was
Ataa Laryea alias Masha Alahu
who established a settlement and
still lived there in the company
of some moslems. Part of his
evidence was as follows:
“I said my father as well as
myself farmed on the Adutso
family land. I grew up on the
land. I am still farming on the
land up to now. While farming on
the land around 1973 one Quaye
Ada from Ada who settled at Osu,
came with some people from
Benin, one of them is called
Adzaho who told us to pay
tribute to the landowners to
Quaye Ada after the harvest. We
refused to do so. Because of
this misunderstanding our farm
hamlets were all burnt down by
Adzaho and his people. Adzaho
is now deceased I know some of
his children whom I can identify
when I see them. We informed
the Adutso family of the burnt
down of our farm huts.”
The cross examination of PW3 was
brief and included the
following:
Q. Are you
aware that the man Adzaho has
established a village presently
called Adzaho village?
A. After they burnt
my place before Adzaho went to
settle there.
Q. Where is Adzaho
village located?
A. It is between
the boundary between Adutso land
and Abokobi.
In the cross examination of PW3,
lawyer for defendant did not
challenge his testimony that he
is farming on the land as a
tenant of Adutso family and his
testimony about Papa Adanse and
Ataa Laryea. These pieces of
evidence are deemed admitted by
defendant. However, defendant in
his statement of case has relied
on the evidence of PW3
concerning Quaye Ada and Adzaho
to argue that defendant was in
possession of the land in
dispute since 1974 to the
knowledge of plaintiff who did
not take any step to challenge
the possession.
PW3 never said Adzaho
village is on Adutso family
land. His evidence is clear
that Adzaho village is between
Adutso land and Abokobi and we
shall discuss this issue in
greater detail when we deal with
the plea of the statute of
limitations.
We shall now consider the
evidence defendant led in proof
of his case that the land is
owned by his family. Evidence on
behalf of Defendant family was
given on oath by Nii Odartey Sro
III who described himself as
Atofotse and one of the three
joint heads of Nii Odartey Sro
family of Osu. After narrating
their version of the history of
the land he tendered a
registered Statutory Declaration
made by representatives of his
family in 1974. He said that the
family made grants of the land
to third parties. He tendered
grants made to Frapsa Farms Ltd
dated 30th May, 1979,
Parakuo Estates Ltd dated 6th
December, 1993, and Desmond
Patrick Kotey Tay dated 20th
May 1980. A Deed of Gift dated
3rd March, 1983 made
to Madam Vida Arku Brown for one
plot of land was also tendered.
After tendering these documents
defendant ended his
evidence-in-chief.
Interestingly, the following
question and answer ensued in
cross examination of defendant’s
representation by counsel for
plaintiff.
“Q. I put to you
that it was only after 1974 that
your family got to know of the
fictitious statutory
declaration.
A.
It is not true. It is not the
declaration (Exhibit 3) which
makes us the owners of the
land. We own it over 200 years
ago.”
This answer of defendant is in
tune with the requirement of the
law that; in an action for
declaration of title to land a
statutory declaration by itself
does not confer title on the
declarant. A party relying on a
statutory declaration in an
action for title to land is
required to lead credible and
admissible evidence to prove the
acts of ownership and possession
referred to in the declaration.
See the cases of: Agbosu v
Kotey [2003 -2004] SCGLR 420.
Unfortunately the defendant’s
testimony did not refer to any
acts of possession by his family
in living memory. He did not
even allege that the grantees he
testified about ever took
possession of the land on
account of the documents he
tendered neither did he call any
of them to testify on his
behalf. If this case were to be
resolved only on the question of
who first made documentary
grants of the land to third
parties, then the plaintiff is
better placed than defendant.
Exhibit “D” shows a recorded
documentary grant by plaintiff
family in 1973 even before
defendant’s Statutory
Declaration made in 1974. From
the evidence on record it was
only Parakuo Estates Ltd who
tried to take possession during
the pendency of this case and
plaintiffs applied and joined
them to the suit. They
subsequently withdrew from the
case and undertook to
atone tenancy to whoever
is declared owner of the land by
the court.
Defendant called Dr. Eric Engman
Amonoo Graham as his only
witness. He testified that he
had land in the area and the
defendant family is his Eastern
boundary owner. Apart from his
bare statement, DW1 did not
mention any activity by
defendant on the land he claimed
they owned. He said he did not
know Adutso family. However, he
said there is a one-family
village on his land called
Krobiwoho inhabited by Doe
Dzebu, PW2 and his siblings and
that they witnessed his
Statutory Declaration of title
made in 1986 by thumb printing
it. He tendered his Statutory
Declaration as Exhibited ‘8’.
Under cross examination of DW1
by lawyer for plaintiff the
following transpired:
Q. Do you know
Amega Dzebu alias Dzebu Xenyo?
A. I never met
him but I know he is the father
of Doe Dzebu and Yao Dzebu.
Q. Do you know
that he established a village on
the subject land known as
Krobiwoho?
A. From the
history of our land the Dzebu
family was brought from an
adjoining land known as
Krobiwoho to our land.
Q. That
adjoining land also known as
Krobiwoho is the land which
shares boundary with your land.
A. I don’t
know. I have a short boundary
with Odartey Sro family land.
But their land goes further up
i.e. Odartey Sro family land.
Further cross examination was as
follows;
Q. Have you ever
heard of the name Adanse
village?
A. I have never
heard.
These answers given by DW1 tend
to corroborate the evidence of
PW2 that there is Old Krobiwoho
and New Krobiwoho which adjoin
each other. That Xenyo Dzebu
first settled at Old Krobiwoho
which does not belong to Dr
Graham, but they are now on
adjoining New Krobiwoho which is
on Dr Graham’s land. Whereas
PW2 was clear in his evidence
that Old Krobiwoho is on Adutso
land, Dr Graham said “I don’t
know.” He did not positively say
that Old Krobiwoho is on Odartey
Sro family land. So though DW1
says Odartey Sro is his boundary
owner in one breath, he was
unable to say that positively in
respect of ownership of Old
Krobiwoho land which he admitted
under cross examination forms a
boundary with his land. He
vacillated when he was
confronted with the obvious
factual conclusion arising from
his answers in cross
examination.
In this situation, the testimony
of PW2 is preferable to that of
Dr Graham and the proper finding
to make is that Old Krobiwoho is
on Adutso land. Defendant did
not mention Krobiwoho in their
pleadings and evidence. He
pleaded Adanse but his witness
has identified the settlement as
Krobiwoho and denied any
knowledge of a settlement called
Adanse. This is a case where the
evidence of defendant’s witness
tended to corroborate the case
of his opponent while leaving
his own case uncorroborated. In
such situations a court ought to
accept the corroborated case of
the opponent and reject the
uncorroborated case of the party
that called the witness unless
there are compelling reasons to
the contrary.
In that regard the defendant in
his statement of case has
referred to certain parts of
Exhibit ‘8’ which was allegedly
thumb printed by PW2 and his
siblings to say that they
contradicted his testimony on
oath that there was ever Old
Krobiwoho which was on Adutso
land.
Paragraphs 15 and 16 of Exhibit
‘8’ state as follows:
“15. To the best
of our recollection knowledge
and belief we (Pw2 and siblings)
grew on a farm situate at East
of Boi village and known as
Krobiwoho, the said farm being a
portion of Awula Dede’s Land.
16. We are
informed by our deceased father
that Awula Dede’s land which
shares common boundary on the
North East where Krobiwoho is
situate with Nii Akpor family
land is the property of Rev.
Graham and our deceased father
and mother always recognised and
accepted Rev Graham as owner of
the said land that it was by his
said leave and license that they
our parents were on the said
land and we have also
recognised, accepted and
acknowledged the ownership and
license to live on and to farm
that part of Awura Dede’s land
aforementioned.”
Defendant then argued as follows
in his statement of case.
“In exhibit “8” PW2 and his late
brother solemnly declared that
Krobiwoho is part of Awula
Dede’s land. The question is if
Krobiwoho is part of Awula
Dede’s land then where is
plaintiff’s land as established
by her ancestor Ayi Blaflasi?”
In the first place, PW2 was not
confronted with these paragraphs
in Exhibit “8” when he was
testifying so as to attack his
credibility. Defendant’s counsel
asked him in cross-examination
if he and his father signed a
declaration with Dr. Graham and
he said no. That was all he
asked him on that issue and,
true to his word, PW2’s father
was not on this earth in 1986
when exhibit “8” was allegedly
thumb printed.
Section
76 of the Evidence Act, 1975
(NRCD 323) provides as follows:
“76. Unless
the court in its discretion
determines otherwise, extrinsic
evidence of a statement made by
a witness that is inconsistent
with any part of his testimony
at the trial shall be excluded
unless
(a)
The witness was so
examined while testifying as to
give him
an opportunity to
explain or deny the statement;
or
(b)
The witness has not been
excused from giving further
testimony”
So an earlier inconsistent
statement is not by itself
evidence of the truth of its
contents but may only be used to
confront the witness and attack
his credibility as to the
veracity of his testimony. In
the case of Adwubeng v Domfeh
[1996-97] SCGLR 660 Acquah
JSC (as he then was) said as
follows at page 669 of the
report:
“…The earlier testimony or
statement used to contradict him
is not admissible evidence of
the truth of the fact stated
therein and is not evidence upon
which the court should act to
make findings of fact.”
What this means is that since
PW2 was not confronted with
Exhibit “8” in respect of the
portion relating to him, it does
not constitute admissible
evidence that may be used by the
court in making findings of fact
and they are to be excluded by
virtue of Section 76 of NRCD
323. That apart, it is not only
PW2 who said that Krobiwoho
stretches from an adjoining land
to Awula Dede’s land. DW1 also
said so.
Yet defendant has objected to
the judgment of the Court of
Appeal on a ground of law based
on limitation of actions which
he pleaded in the High Court.
The effect of this Ground of
Appeal is that even if plaintiff
were declared owner of the land
the court cannot grant her the
reliefs she seeks as same will
be contrary to the provisions of
the statute of limitations.
The Limitations Act
1972 (NRCD54)
provides as follows:
“Section 10
(1) No action shall be
brought to recover land after
the expiration of twelve years
from the date on which the right
of action accrued to the person
bringing it, or if it first
accrued to some person through
whom he claims to that person
(2) A right of action to
recover land does not accrue
unless the land is in the
possession of a person in whose
favour the period of limitation
can run ‘’
A party who seeks to rely on the
statute of limitation as a
defence in an action to recover
land must prove that he had been
in adverse possession of the
land subject-matter of the
action and that such adverse
possession has been continuous
for more than twelve years to
the knowledge of the true owner.
See the case of Mmra v Donkor
[1992-93] Part 4 GBR 1632.
In the instant case defendant
did not lead evidence of adverse
possession of the land. The
only evidence his counsel
referred to in his statement of
case is the answers given by PW3
in cross examination to the
effect that Quaye Ada and Adzaho
burnt down farms of tenants of
Adutso’s family on the land
around 1973. That might have
happened but did it end with
defendant taking possession of
the land? At the time PW3
testified he and other tenant
farmers were still on the land
farming and had been there since
1973 meaning the burning of
their farms did not dislodge
them from the land.
Besides, there is no evidence on
record that these persons were
acting on behalf of defendant
family. Defendant’s testimony
makes no mention of that and it
must be pointed out that
suggestions put to a witness by
counsel in cross examination
which are denied by the witness
do not constitute evidence of
proof of the matters suggested
by the cross examiner. When it
was suggested to PW3 that Quaye
Ada was from Nii Odartey Sro
family of Osu he flatly denied
it and stated that he was from
Ada. As for Adzaho, the evidence
on record is that he was a
Beninois.
Defendant’s counsel further
referred to the cross
examination of PW3 where he
mentioned the establishment of
Adzaho village and argues that
it was as an act of adverse
possession. However PW3’s
evidence is that Adzaho village
is outside Adutso land so
defendant cannot rely on that
testimony to found adverse
possession of plaintiff’s land.
Defendant pleaded the statute of
limitations in his defence but
failed to lead a scintilla of
evidence of possession which
could then be said to have been
adverse to plaintiff’s
ownership. That ground of appeal
also fails and is dismissed.
In sum the plaintiff led
evidence of overt acts of
possession and ownership of the
land for about 100 years through
the activities of her tenant
farmers. These activities were
within living memory as PW2 and
PW3 gave first hand testimonies
of their personal activities on
the land at the license of
Adutso family of the Plaintiff.
Defendant tried to induce PW2 to
testify in their favour but he
refused.
Defendant’s testimony on the
other hand did not refer to any
acts of possession in recent
memory. Though during cross
examination of PW3 the defendant
lawyer stated that Adzaho was a
representative of the defendants
on the land, he never pleaded
any such material fact and
defendant did not mention any
such caretaker in his testimony.
Dr Graham who defendant called
as his boundary owner in his
testimony ended up corroborating
the case of plaintiff to a large
measure. DW1 stated that his
family acquired its land in 1854
which coincides with the very
year plaintiff family said their
ancestor settled on the land.
That was the year of the bombing
of Osu by the colonialists when,
the natives in resistance of
colonial domination, refused to
pay tax to them. PW1, a retired
teacher, stated in her evidence
that Osu was bombed on 13th
and 14th September,
1854. The totality of the
evidence strongly supported the
case of the plaintiff family and
against defendant’s.
It would appear that when PW2
testified and exposed defendant
as trying to suborn him,
defendant lost all hope in his
case hence his representative’s
testimony was porous and he was
evasive throughout his cross
examination. On all the evidence
adduced at the trial, we hold
that the Court of Appeal was
right in preferring plaintiff’s
case to that of defendant.
Accordingly defendant’s appeal
fails in its entirety and same
is dismissed. The judgment of
the Court of Appeal dated 20th
November, 2014 is hereby
affirmed.
(SGD) G. PWAMANG
JUSTICE OF THE SUPREME COURT
(SGD) J. ANSAH
JUSTICE OF THE SUPREME COURT
(SGD)
ANIN YEBOAH
JUSTICE OF THE SUPREME COURT
(SGD)
P. BAFFOE - BONNIE
JUSTICE OF THE SUPREME COURT
(SGD)
A. A. BENIN
JUSTICE OF THE SUPREME COURT
COUNSEL
KENNETH KUDZORDZIE ESQ. FOR
THE APPELLANT.
PROSPER NYAHE ESQ. FOR THE
RESPONDENT. |
