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Evidence – Burden of persuasion – Weight of evidence – Corroborated evidence to be preferred to uncorroborated evidence.

Courts – Appellate – Findings of fact – Findings of trial judge not borne by evidence on record - Appellate court may interfere.

The land in dispute formerly belonged to A stool from which the predecessors of the appellant bought a large portion and occupied for nearly forty years since 1923. In 1963 the respondents entered portions of the land and the appellant instituted an action against them in the High Court. The respondents contended that the portion of the land sold to the appellant’s predecessors was much less than claimed. At the trial the appellant testified convincingly and was corroborated by the surveyor, the boundary owners and the co-defendant. At the end of the trial, the appellant’s case stood strongly corroborated by the co-defendant while that of the defendants was so conflicting that the judge described them as liars. Nevertheless the trial judge gave judgment for the defendants. On appeal by the plaintiff to the Court of Appeal,

Held: Where the evidence of a party on an issue had been corroborated, that party’s case ought to be preferred to that which had not been corroborated unless there were good reasons to be clearly stated in the judgement. In the instant case, the appellant’s case was corroborated by the court-appointed surveyor, adjoining land owners and his opponent, the co-defendant, but the trial judge assigned no valid reason for preferring the conflicting case of the respondents to the corroborated case of the appellant. If the evidence had been properly evaluated judgment would have been entered for the appellant. Accordingly the appeal would be allowed. Asare v Donkor and Serwah II [1962] 2 GLR 176 applied.

Case referred to:

Asare v Donkor and Serwah II [1962] 2 GLR 176, SC.

APPEAL from the judgement of the High Court.

Boadu for the appellant

BROBBEY JA. This is an appeal against the decision of Williams J sitting in the Koforidua High Court. The appeal followed a decision of the trial judge in which he awarded judgment for the respondents.

The original trial itself centred around a rather narrow issue concerning title to a portion of land which formed part of the Adasewase stool lands.

The undisputed facts of the case were the following: The land in dispute formerly belonged to the Adasewase stool. The predecessors of the appellant bought a large part in 1922 and occupied it for nearly forty years from 1923. In 1963 the respondents entered the portion of lands which the appellant claimed to have bought. The appellant consequently issued a writ against the respondents in the Koforidua High Court.

At the trial the respondents conceded that the appellant’s predecessors bought some portions of the Adasewase stool lands. They however contended that the portion sold to them was much less than the lands actually claimed by those predecessors.

The basic issue in the case turned, not on the entire land bought by the plaintiffs but on the portion of the purchased land which had been entered by the respondents.

The only ground of appeal in this case was that the judgment of the judge was against the weight of evidence. During the trial evidence was given by the appellant as to how the land was acquired. He gave a graphic description of the processes leading to the sale, the cutting of guaha and virtually all relevant customs which were performed to symbolise the purchase of the land. Most important of all, he vividly described the boundaries of the land bought by his predecessor. The features which he described in his testimony in court were pointed out when the parties visited the locus in quo with the court-appointed surveyor. Even the testimony of the surveyor confirmed the boundaries as described by the appellant.

Owners of lands adjoining the area in dispute were also called and they corroborated the boundaries as described by appellant. The most significant evidence in the boundaries came from the co-defendant. He too conceded that the correct boundaries were as described by the appellant.

At the end of the trial, the appellant’s case stood strongly corroborated while that of the respondents was so clearly conflicting that the judge himself described the defendants as liars.

The general rule is that the case of the party which has been corroborated should be preferred to that which has not been corroborated: See Asare v Donkor & Serwah II [1962] 2 GLR 176 in which the Supreme Court held that “where the evidence of the only independent witness on a vital issue corroborates the evidence of one party or the other, a court is bound to accept the case of the party so corroborated unless there are good reasons for discrediting the independent witness, in which case these reasons must be clearly stated in the judgment”.

In the instant case, the appellant’s case was corroborated by no less a person than his opponent the co-defendant during the trial and the trial judge assigned no valid reason for preferring the conflicting case of the respondents to the corroborated case of the appellant.

In the face of such weighty and preponderant evidence delineating the boundaries in dispute and distinguishing the appellant’s boundaries from those of his neighbours and other lands of the stool, it was surely wrong for the trial judge to have held that the appellant had failed to describe the boundaries of the land he claimed. The finding of the trial judge on the boundaries was clearly not borne out by evidence.

The judgment becomes all the more difficult to defend when one considers the fact that the trial judge himself described the defendants as liars and expressed the hope that they would quit the area occupied by them. Amazingly, he proceeded to enter judgment for the defendants after literally condemning their veracity, his main reason for giving judgment for them being that the plaintiff-appellant failed to identify the land in dispute. On the contrary, the record showed that there was ample evidence which established the appellant’s land and also described the areas of the land encroached upon by the respondents.

The findings of the judge on the all-important issue of the boundaries were clearly contrary to the evidence adduced before him as can be seen in his appeal record.

Another significant point which the judge glossed over was that the appellant and his predecessor were in undisturbed possession of the entire land for some forty odd years. This was not controverted by the respondent. If indeed the land truly belongs to the respondents, they would not have waited for forty years before attempting to re-take them from the appellant and his predecessors in title.

If the evidence had been properly evaluated, judgment should have been entered for the appellant instead of the respondents.

It was for these reasons that the appeal was allowed. The judgment of the trial judge is set aside. Judgment is consequently entered for the appellant against the respondents on the first relief in the writ of summons.

No evidence was led on the claim for ¢20 million damages for trespass. It was a figure named arbitrarily in the writ without particulars as to how it was arrived at. In the circumstances whatever figure that will be awarded as damages will be equally arbitrary.

The fact still stands however that the respondents occupied some portions of land properly acquired by the appellant’s predecessors by way of sale. Nominally at least, the respondents are liable to the appellant for damages for trespass brought about by their

occupation of the land. On the claim for damages, there will be nominal award as against the respondents and in favour of the appellant assessed at ¢300,000.