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JUDGMENT
BROBBEY, J.A:
This is an appeal from the
decision of an Accra High Court
in which judgment was given in
favour of the
plaintiff/respondent,
hereinafter referred to as the
respondent for short.
The facts that gave rise to the
litigation were these; the
respondent claimed that he
acquired the land in dispute
from Gomoa Nyanyanor in 1973 and
registered it at the Lands
Department as No. 1498/1977.
After acquiring the land, he
entered into possession by
constructing chalets on portions
of it. The defendant who shall
hereafter be referred to as the
first appellant claimed that he
acquired the land in dispute
from the chief of Kokrobite in
or about 1974. He added that on
enquiring from the Lands
Department, he discovered that
the land had been registered in
the name of the Bortianor stool.
He therefore repurchased the
land from the Bortianor stool in
order, as he put it in his
statement of defense, to hedge
his title. When the litigation
started, Bortianor stool joined
as co-defendant. That stool
shall hereafter be referred to
as the third appellant. It was
part of the case of the first
appellant that he had authorized
the Academy of African Music &
Arts Ltd. to undertake a massive
development project on the
disputed land. The Academy was
joined to the suit as the second
defendant. That Academy will be
referred to as the second
appellant.
At the trial court, the
respondent’s reliefs were for a
declaration of title, damages
for trespass, recovery of
possession and perpetual
injunction. Judgment was given
in favour of the respondent.
Dissatisfied with the judgment,
the defendant and co-defendants
appealed to this court initially
on one omnibus ground that the
judgment was against the weight
of evidence, after which five
additional grounds of appeal
were filed on her behalf.
At the trial court, the
respondent based his claim
principally on the fact that the
Stool Lands Boundary Settlement
Commission had conducted some
enquiries that were numbered as
14/75 and 10/76. The two
enquiries formed the basis of
another enquiry that was
numbered as 2/79 and was
tendered as exhibit G. The
evidence showed that the Stool
Lands Boundary Appeals Tribunal
set the decisions in enquiry
numbers 14/75 and 10/76 aside in
1994 and that was tendered as
exhibit I. The trial judge
however upheld and applied the
decision in inquiry number 2/79
for the simple reason that even
if the two earlier inquiries had
been set aside in exhibit I,
that exhibit I did not expressly
overrule exhibit G.
That argument is simply
untenable. The trial judge and
the parties were all agreeable
that the very basis of enquiry
number 2/79 was enquiry numbers
14/75 and 10/76. In exhibit I,
the appellate tribunal
specifically
“set aside the judgment relating
to zone one as described above
where all the six claimants are
claiming boundaries, i.e. the
area edged blue claimed by
Amanfro, James Town stools and
remit the same to the learned
Commissioner for retrial.
On receipt of the proceedings
after retrial we shall be in a
position to deliver the full
judgment to cover all the three
areas. The appeal is adjourned
sine die”
The obvious interpretation that
can be given to this passage is
that the appellate tribunal had
nullified the findings on zone
one. The parties in this case
are agreeable that zone one
covered the lands in respect of
which the two inquiries numbered
as 14/75 and 10/76 were decided.
If the basis of decisions had
been nullified, no amount of
legal technicality can revive
it. It was wrong to insist on
applying the decision in inquiry
no 2/79 which is a determination
of a trial tribunal knowing very
well that it has been nullified
by the appellate tribunal.
The trial judge based his
decision to apply the decision
in inquiry no 2/79 on the fact
that the appellate tribunal did
not directly nullify the
decision but did so by
implication. The reality of the
situation was that by the
appellate tribunal’s decision,
the decisions in numbers 14/75
and 10/76 had ceased to exist
because they had been set aside.
Since the two formed the basis
of 2/79, there was nothing for
that 2/79 to stand on. As
Denning L.J put it in MacFoy v.
U. A. C. [1962] A.C. 152
“You cannot put something on
nothing and expect it to stay
there. It will collapse”
Indeed, the decision in 2/79 had
collapsed and could not be
revived and applied merely
because the collapse was brought
about by implication.
By the trial judge’s own
analysis, the plaintiff’s case
was in the main based on the
decision in 2/79 and since that
decision had been nullified the
plaintiff’s case failed and
should have been dismissed.
The second point that militated
against the case of the
respondent was this; the
plaintiff obtained his land from
the Chief of Gomoa Nyanyanor.
The principal elders and joint
heads of the Abredze family of
Gomoa Nyanyanor who claimed to
be owners in possession of the
disputed lands witnessed the
transaction. The indenture that
evidenced the transaction was
tendered as exhibit A. In
exhibit A, the grantors of the
plaintiff based their claim to
the land by asserting that they
“Became seised absolutely in
possession free from all
incumbrances of all that piece
or parcel of land described in
the schedule hereto”
The respondent relied on exhibit
A by pleading the contents in
paragraphs 3 and 4 of the
statement of claim. In the
statement of defense of the
defendant, the appellants
specifically denied those two
paragraphs 3 and 4.
In the respondent’s summons for
directions, the main issue
raised was
“Whether or not the plaintiff is
the legitimate and rightful
owner of the land in dispute
having obtained it from the
Abredze family of Gomoa
Nyanyanor”
In the supplementary summons for
direction filed on behalf of the
co-defendant, the first issue
raised was
“Whether or not the transaction
referred to at paragraphs 3 and
4 of the statement of claim was
null and void and or did not
operate to vest title in the
land in dispute to the
plaintiff”
The reason for citing the
pleadings and the summons for
directions in extenso is to
demonstrate that the respondent
could not right from the
inception of the litigation have
been in any doubt that the claim
of his grantors to the disputed
land was vehemently being
contested by the defendants and
co-defendant.
In addition to that the
respondent was the plaintiff in
the case and therefore assumed
the onus of proof of his title.
The Evidence Decree, 1975(NRCD
323), s. 11(1) puts the issue
simply thus;
“The burden of producing
evidence means the obligation of
a party to introduce sufficient
evidence to avoid a ruling
against him on the issue.”
The defendants and the
co-defendants made no
counterclaim. Since the
plaintiff claimed the relief of
declaration of title to the
disputed lands and trespass, he
had the onus to lead evidence to
avoid a ruling being given
against him in respect of those
reliefs. It was imperative that
the grantors established how
they acquired the land because
if they had no title to it, they
could not logically grant what
they themselves did not have to
the respondent.
What evidence did he lead in
proof of his title? It was only
the tendering of exhibit A, the
indenture that evidenced the
transaction between him and his
grantors. The grantors
themselves were not called to
testify to show how they
“Became seised absolutely in
possession free from all
incumbrances”
Beside exhibit A., the
respondent tendered documents
that did not answer the
all-important question, “How did
the grantors acquire the land
they claimed to have been seised
absolutely in possession?” The
evidence led in support of the
respondent’s claim never
answered that question. Where a
party claims title to land and
he is challenged, is it enough
to tender his registered
document without more as proof
of his title? In our opinion,
the answer is obviously in the
negative.
The second issue which arises
out of the case is yet another
question; If a family claims to
be owners in possession of land
and that assertion is disputed,
is it enough proof to merely
issue an indenture to a party to
tender it in court as evidence
of that ownership or possession
without appearing to
substantiate that claim? Again
the answer should be in the
negative. The mere fact that an
indenture has been registered
does not ipso facto confer title
on the grantor or grantee in
that indenture. In any case, the
well-established rule is that
registration does not convey
state guaranteed title.
From his testimony in court, it
was evident that the respondent
was not a member of the family
of the chief of Nyanyanor or the
Abredze family. He could not
have testified on behalf of that
family and he did not claim to
have testified on its behalf.
The onus was on the family,
which asserted ownership and
possession to have gone to court
to establish that ownership and
possession. By failing to do
that, the respondent’s claim to
the land in so far as it was
based on the claim of the family
woefully remained unsupported,
unsubstantiated and unproved.
The claim therefore failed and
should have been dismissed.
Legally considered, the family
was in the position of essential
witness to the respondent; that
is to say, the essence of the
respondent’s case being the
alleged ownership and possession
by the family, that case
collapsed when that essence was
not established by evidence from
the family. The failure to lead
evidence on an essential aspect
of the respondent’s case should
have led to the dismissal of
that case.
A surveyor who later testified
as the court witness led
significant evidence. He
surveyed the disputed land and
its surroundings. In his
testimony, he tendered a plan as
exhibit H. That exhibit H showed
that the disputed land was close
to the boundary which separates
Central Region from the Greater
Accra Region but was situated
deeply inside the Greater Accra
Region. That fact was not
disputed by any of the parties.
Secondly, the grantors of the
respondent are Fantis from the
Central Region while the
grantors of the appellant are
Gas from the Greater Accra
Region. The view is held that
such boundaries are political
actions and at best delineate
cultural or traditional
allegiances. Regional boundaries
may or may not conclusively
settle issues of ownership of
lands. But they raise very
relevant questions that at the
same time cannot be ignored; one
such pertinent question is how a
person residing in one Region
can claim to own land in another
Region. In the instant case, the
evidence of the DW2, the eldest
chief of Kokrobite, indicated
without doubt that the lands of
the people of Amanfro, Oshieyie,
Bortianor and Aflakuie who are
all Gas surround the disputed
land. The respondent did not
challenge that evidence even in
cross-examination. Surely, the
respondent had the onus to have
called his grantors to establish
how people residing in the
Central Region could own lands
almost wholly surrounded by
people of different ethnic
group, namely Gas.
There is no doubt that people
living in border areas may have
lands spanning two Regions.
However, the instant case is not
one involving land starting from
one Region and continuously
extending to another Region.
Rather the disputed land as
stated already is situated
deeply inside the Greater Accra
Region and is surrounded on all
of its sides by other lands in
that Region. Exhibit H further
confirms that fact.
The obvious question that arises
to be answered is how Fantis
from Central Region can claim to
own land situated deeply inside
the Greater Accra Region in the
absence of any evidence of prior
acquisition. That, a fortiori,
is the reason why the respondent
should have called his grantors
to testify to show how they came
by the land.
For the avoidance of doubt, this
judgment should not be taken to
make any pronouncement that a
person from one tribe in one
Region cannot own lands in
another Region occupied
predominantly by people of
another tribe. What is being
harped upon is the evidence in
proof of title to the land being
claimed, particularly where
traditional evidence is required
to establish allodial title.
Counsel for the respondent made
analogies of people owning lands
across borders. Parties or
witnesses should have put those
analogies into the case as
evidence so that they could have
been cross-examined on them.
That was because they were
factual situations that could
not properly have come from
counsel who was not giving
evidence. Even if counsel were
right, no presumption of
regularity could be raised in
favour of the Nyanyanor people
because being people in one
Region claiming land in another
Region, their claim was
irregular. Again, the onus was
on them to have gone to court to
show how they could own land
situated in a Region different
from their own Region.
For two main reasons, the
respondent’s claims failed and
should have been dismissed.
These were that inquiry number
2/79 on which he based his
entire case had collapsed and
that meant that his case too
collapsed. Secondly he failed to
call his grantors whose claim to
ownership of the disputed lands
the appellants challenged. All
the other reliefs sought by the
respondent in his writ of
summons were based on the claim
for declaration of title to the
disputed land. Since that title
claim had failed, the other
claims for damages for trespass,
recovery of possession and
perpetual injunction similarly
failed.
The claim of the appellant to
the land was initially through
the Kokrobite stool and, in the
alternative, through the
Bortianor stool. In the main,
what was led by and on behalf of
the defendants was traditional
evidence. In the testimony of
the first defendant, he referred
to the Lanma Hill. That hill is
indicated on exhibit H as being
situated inside the Greater
Accra Region. His testimony was
that the significance of the
hill lies in the fact that it is
a boundary feature. He added
that that was where the Gas used
to have their military
accoutrements. That evidence was
not challenged. It confirmed the
claim of the appellants that the
disputed area could only be
considered as Ga area because on
exhibit H, the hill is in fact
positioned on the western side
of the disputed land and inside
the Western boundary of the
Greater Accra Region.
As already pointed out, Regional
boundaries are said to raise
allegiances but having regard to
the nature of the evidence led
in the case, allegiance cannot
be said to be irrelevant. This
case raises issues similar to
those raised in the case of
Anomabu Stool v. Acquah and
others (1957) 3 WALR 265, P.C.
where it was held that
“Although allegiance was not
itself the main issue between
the parties, it was relevant to
that issue. Where the ownership
of land is in issue, evidence as
to allegiance may therefore, in
the absence of other evidence,
be sufficient to establish the
ownership or attachment of the
land,”
In the instant case, even if the
reference to the Regional
boundaries of the Central Region
and Greater Accra Region raise
issues of allegiance, the
allegiance proves ethnic
attachment of the land and is
further proof of the kind of
people who are the probable
owners of the land.
In any case, since the
appellants did not file any
counterclaim, they assumed no
special onus of proof. The
respondent who applied for
specific reliefs had the onus to
prove all that he claimed but he
failed to do so.
From the foregoing, it is
obvious that the appeal succeeds
and is allowed.
The judgment given in favour of
the respondent is set aside and
judgment is entered for the
appellants.
S. A. BROBBEY
JUSTICE OF APPEAL
ADINYIRA, JA:
I agree that the appeal should
be allowed.
S.O.A. ADINYIRA
JUSTICE OF APPEAL
AMONOO-MONNEY, JA:
I also agree that the appeal
succeeds and should be allowed.
J. C. AMONOO-MONNEY
JUSTICE OF APPEAL
COUNSEL
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