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Land - stool
land - Declaration of title -
Recovery of possession - General
and special damages for trespass
- Perpetual injunction - Whether
or not an additional 29 acres
was sold to the appellant
company -
HEADNOTES
In 1993, the
late Nana Amuah Gyebi XIV of
Apowa, the predecessor of the
respondent, acting with his
elders, granted a 61 acre piece
of stool land to the appellant
company. However, according to
the respondent, after his
enstoolment in 2001 as Chief of
Apowa, he discovered to his
utter dismay that Appellant, had
encroached on an additional 29
acres of land and was in the
process of constructing a wall
around this tract of land. When
challenged, appellant claimed
that they purchased this
additional 29 acres from the
grantor chief, the respondent’s
predecessor. Dissatisfied with
appellant’s conduct, the
respondent caused a writ of
summons to be issued against the
appellant company for the
following reliefs:
Declaration of title to all the
pieces or parcel of land
measuring approximately 29 acres
situate and lying at Apowa
Industrial Area, and contiguous
to a 61 acre land granted by the
plaintiff’s stool to the
defendant company in or about
September, 1993,
Recovery of possession of
the said 29 acre land,
General and special damages for
trespass,
Perpetual injunction
restraining the defendant either
by itself or its servants,
agents, workmen, assigns privies
etc. from interfering howsoever
with the said land. After a full
trial, the learned trial Judge
gave judgment in favour of the
respondent, a decision which was
substantially confirmed on
appeal
HELD
Interestingly, in this simple
case, in effect all three courts
have been faced with the
situation where the crucial
witnesses are all dead, one of
the living witnesses so ill, he
can be of no use to a court of
law, whilst the original
documents are lost. These are
the reasons which compelled us
not to disturb the findings and
conclusions of the two lower
courts, but rather endorse them
STATUTES
REFERRED TO IN JUDGMENT
Evidence Act,
N.R.C.D 323.
CASES
REFERRED TO IN JUDGMENT
Achoro v
Akanfela [1996-97] SCGLR 209;
Koglex Ltd
(No. 2) v Field[2000]SCGLR 175;
Ntiri v
Essien 2001-2002]SCGLR 459;
Sarkodie v F
K A Co Ltd [2009] SCGLR 79;
Jass Co Ltd v
Appau [20009] SCGLR 266
Awuku-Sao v
Ghana Supply Co Ltd [2009] SCGLR
713.
Thakur
Harihar Buksh v Thakur Umon
Parshad (1886) LR 141A7;
Allen v
Quebec Warehouse Co (1886) 12
App Cas 101
Robins v
National Trust Co [1927] AC 515
Duah v.
Yorkwa [1993-94] 1 G.L.R 217.
Fosua & Adu
Poku vs. Dufie (decd) Adu Poku
Mensah [2009-] SCGLR 310.
In Re: Krah
(decd) Yankyeraah and ors. vs.
Osei Tutu & Anor. [1989-90] 1
GLR 638.
Bisi v.
Tabiri [1987-88] 1 GLR 360.
In re; Gandy
v Macauly [1886] 31 Ch D 1
BOOKS
REFERRED TO IN JUDGMENT
DELIVERING
THE LEADING JUDGMENT
WOOD (MRS),
CJ: -
COUNSEL
SAMUEL DZIGBA
FOR THE
DEFENDANT/APPELLANT/APPELLANT.
JOHN MERCER
FOR THE
PLAINTIFF/RESPONDENT/RESPONDENT
______________________________________________________________________
J U D G M E N T
______________________________________________________________________
WOOD (MRS),
CJ:-
On the 28th
July 2010, we, as the second
appellate court, dismissed the
appeal against the judgment of
the Court of Appeal (Civil
Division) dated 23rd
July, 2009, and reserved our
reasons for coming to that
conclusion. We state those
reasons now.
Because the
facts leading to the
commencement of the original
action are indeed very simple,
the issues of fact or law that
arose for determination in the
two lower courts and indeed in
this court cannot by any stretch
of imagination be described as
complex. In 1993, the late Nana
Amuah Gyebi XIV of Apowa, the
predecessor of the
Plaintiff/Respondent/Respondent
(Respondent) respondent, acting
with his elders, granted a 61
acre piece of stool land to the
appellant company. However,
according to the respondent,
after his enstoolment in 2001 as
Chief of Apowa, he discovered to
his utter dismay that
Defendant/Appellant/Appellant
(Appellant), had encroached on
an additional 29 acres of land
and was in the process of
constructing a wall around this
tract of land. When challenged,
appellant claimed that they
purchased this additional 29
acres from the grantor chief,
the respondent’s predecessor.
Dissatisfied with appellant’s
conduct, the respondent caused a
writ of summons to be issued
against the appellant company
for the following reliefs:
(i)
Declaration
of title to all the pieces or
parcel of land measuring
approximately 29 acres situate
and lying at Apowa Industrial
Area, and contiguous to a 61
acre land granted by the
plaintiff’s stool to the
defendant company in or about
September, 1993
(ii)
Recovery of possession of
the said 29 acre land
(iii)
General and special damages
for trespass
Perpetual injunction
restraining the defendant either
by itself or its
servants, agents,
workmen, assigns privies etc.
from interfering howsoever with
the said land.
After a full
trial, the learned trial Judge
gave judgment in favour of the
respondent, a decision which was
substantially confirmed on
appeal, the only variation being
a reduction of the general
damages and costs awarded from
GH¢40,000 and GH¢10,000
respectively, to twenty
thousands and GH¢5,000
respectively. These reversals
were based on the grounds that
the damages awarded were too
punitive and the costs too
excessive and out of step with
what were fair and reasonable in
the particular circumstances of
the case.
But, the
appellant, still being
dissatisfied with the decision
of the appellate court, has
questioned the correctness of
the said decision on the oft
used omnibus ground of appeal
and some four other grounds.
These are:
(i)
The Court of Appeal fell
into the same error the learned
trial judge fell into when it
evaluated exhibit ‘C’ and its
effect on defendant’s case as if
it was introduced into evidence
by defendant and same
constituted the pivot of
defendant’s case.
(ii)
The decision of the Court of
Appeal in failing to fully
appreciate and accord the
necessary weight to the
documentary proof of the lease
(exhibit 1) between plaintiff’s
predecessor and defendant
regarding the 90 acres of land
(inclusive of the 29 acres in
dispute) occasioned a
miscarriage of justice.
(iii)
The reasoned opinion of the
learned justices of appeal that
the presence of J.B. Eshun was
crucial to defendant’s; case and
failure to call him spelt the
death knell of its case cannot
be supported given that in
evidence plaintiff himself had
said J.B, Eshun was dead at the
time of the suit.
(iv)
The learned Justices of the
Court of Appeal ought to have
determined whether the learned
trial judge could in law
‘rectify’ any mistake in his
judgment subsequent to the date
of its delivery with respect to
the amount of damages and costs
before substituting its own
award of damages and costs.
The
circumstances, under which a
second appellate court may
interfere with the concurrent
findings of fact of two lower
courts is so well established it
does not admit of any
controversy. The following
represent only a few of the long
line of cases on this important
legal point. These are
Achoro v
Akanfela [1996-97] SCGLR 209;
Koglex Ltd (No. 2) v
Field[2000]SCGLR 175; Ntiri v
Essien 2001-2002]SCGLR 459;
Sarkodie v F K A Co Ltd [2009]
SCGLR 79; Jass Co Ltd v Appau
[20009] SCGLR 266 and Awuku-Sao
v Ghana Supply Co Ltd [2009]
SCGLR 713.
That legal
proposition, which undoubtedly,
would be the main applicable
principle in this appeal is
articulated thus:
““(2) [I] In
an appeal against findings of
facts to a second appellate
court like… [the Supreme Court],
where the lower appellate court
had concurred in the findings of
the trial court, especially in a
dispute, the subject-matter of
which was peculiarly within the
bosom of the two lower courts or
tribunals, this court would not
interfere with the concurrent
findings of the two lower courts
unless it was established with
absolute clearness that some
blunder or error resulting in a
miscarriage of justice, was
apparent in the way in which the
lower tribunals had dealt with
the facts. It must be
established, e.g. that the lower
courts had clearly erred in the
face of a crucial documentary
evidence, or that a principle of
evidence had not been properly
applied; or, that the finding
was so based on erroneous
proposition of the law that if
that proposition be corrected,
the finding would disappear… It
must be demonstrated that the
judgments of the courts below
were clearly wrong.
Thakur
Harihar Buksh v Thakur Umon
Parshad (1886) LR
141A7; Allen v Quebec
Warehouse Co (1886)
12 App Cas 101 and
Robins v National Trust
Co [1927] AC 515
cited”.
The decision
of this court in the unreported
case of suit No. J4/8/10 Sylvia
Gregory v. Nana Kwesi Tandoh 1V
and another, dated 12th
May, 2010, provides further
grounds on which a second lower
court may disturb two previous
concurrent findings. In that
case this court held that:
“It is
therefore clear that, a second
appellate court, like this
Supreme Court can and is
entitled to depart from findings
of fact made by the trial court
and concurred in by the first
appellate court under the
following circumstances:
-
Where
from the record the findings
of fact by the trial court
are clearly not supported by
evidence on record and the
reasons in support of the
findings are unsatisfactory.
-
Where the
findings of fact by the
trial court can be seen from
the record to be either
perverse or inconsistent
with the totality of
evidence led by the
witnesses and the
surrounding circumstances of
the entire evidence on
record.
-
Where the
findings of the fact made by
the trial court are
inconsistently inconsistent
with important documentary
evidence on record.
-
Where the
first appellate court had
wrongly applied the
principle of law in Achoro
vrs Akanfela (already
referred to supra) and other
decided cases on the
principle, the second
appellate court must feel
free to interfere with the
said findings of fact, in
order to ensure that
absolute justice is done in
the case”.
In this
instant case, the only material
common ground between the
parties is the fact that the
original grant of land to the
appellant company was 61 acres.
What clearly was in contention
was
whether or not an additional 29
acres was sold to the appellant
company. In both courts, as
indeed in this court, the simple
but critical question for
consideration is that which was
clearly identified by the
appellate court in these terms:
“What is in
the issue is whether the stool
subsequent to that grant made a
conveyance of an additional 29
acres to the appellant. I think
that in the court below, the
learned trial Judge considered
this very question as the only
issue, which was raised before
him on the pleadings.”
Indeed, the
admission by the DW1 that the 60
acres land which was first
acquired by the company had been
completely fenced before the
disputed 29 acres was allegedly
purchased, reinforces the point
that this clearly is the only
pertinent issue for
determination. Further, given
the peculiar facts of this case,
it is an issue that must be
examined with utmost care.
Having
examined the record, I do not
think we ought to disturb the
findings and conclusions of the
appellate court which was that:
“After a
careful and anxious
consideration of the record of
proceedings, I have come to the
opinion that the appellant
herein was unable to discharge
the burden of proof that was on
it having regard to the state of
the pleadings. Having admitted
the respondent’s title to the
disputed land, the appellant was
obliged to introduce credibly
sufficient evidence that would
render the sale on which it
relied more probable than its
non-existence. There is no doubt
that on the state of pleadings
the burden to lead evidence on
the sale and or purchase of the
21 acres of land was on the
appellant having regard to the
provisions of sections 11, 12
and 14 of the
Evidence
Act, N.R.C.D 323. See: Duah v.
Yorkwa [1993-94] 1 G.L.R 217.
In my
thinking the appellant failed to
discharge the burden proof that
he assumed by virtue of his
claim for the following reasons.
While he relied on the part
payment in respect of the
additional 29 acres he was
unable for no apparent reason to
call the person who he alleged
received the payment on behalf
of the stool. I think that the
presence of J.B Eshun was
crucial to the case of the
appellant and as such it is
difficult to comprehend why not
having called him he offered no
explanation for his absence. As
it is the only reasonable
inference that one can make for
this default is that he thought
that when called the witness
would not be favourable to his
cause. It is more difficult to
appreciate the failure to call
the witness when it is known
that the stool occupant on whose
behalf the payment was received
was dead. In the circumstances
in line with settled judicial
opinion the appellant’s version
of the matter is required to be
scrutinized with suspicion.
Then there is
the evidence regarding the
statutory declaration that was
made by the appellant. The
explanation for its making was
that in the course of processing
a document that was made in
their favour by the stool it got
missing in the Lands Commission
in Takoradi and consequently
they had to rely on a self
serving deposition. I do not
find the explanation reasonable.
After all, the stool is a
corporate sole and if indeed
there was any transaction
regarding the 29 acres the
natural thing to do was for the
company to approach the stool
and ask for a replacement
document. I do not think that
the stool would have refused to
yield to such a request from the
appellant. I think that if there
was any such sale, there would
have been persons present in the
community that would speak to
the transaction such as to
enable those who might be
unaware of it to be so informed.
On the other hand by taking it
upon itself to swear to a
deposition and recite the facts
on which it relied in support of
the sale to it the appellant had
in my opinion behaved in a
manner that raised suspicion
about its claim to have
purchased the land in the life
time of the previous occupant of
the stool”.
In my
thinking, the appellant’s
attempt at proving the alleged
acquisition via a statutory
declaration (which was sought to
be tendered but rejected), and
not some other more reliable
document, was most unfortunate.
By paragraph 4 and 10, they
swore as follows:
(4) “That
sometime in January 1995 Mondial
Veneer (Ghana) Ltd. Purchased
from Nana Amua Gyebu XIV the
then Chief of Apowa and
Divisional Chief of Apowa in the
Ahanta Traditional Area plots
no. 84A, 84, 85, 86 and parts of
82, 83 and 87 all situate at
Apowa in the Apowa Industrial
Area”.
(10)
“Wherefore I make this Statutory
Declaration claiming ownership
of the subject plots as
properties of the Mondial Veneer
(Ghana) Ltd. by virtue of
purchase from the Apowa Stool”.
Their
Lordships of the Court of Appeal
properly concluded, in my view
that:
“Also strange
to relate is the fact that a
close examination of the
contents of the affidavit that
was being processed for
registration reveals that it
refers to a single grant of 90
acres whiles the evidence at the
trial on which there is no
dispute is that the appellant
obtained a prior grant of 61
acres and sought by the second
purchase to acquire extra land
to make up a total of 90 acres.”
The court was
right in its conclusion that
“these facts tend to cast doubt
on the appellants case.”
We cannot
fault the two lower courts for
their findings and conclusions
on this critical issue of
whether or not the appellants
acquired an additional 29 acres.
The court of first instance on
examining the evidence
painstakingly, found no
sufficient evidence in proof of
the purchase price, nor the fact
that same has been fully
settled. The learned trial judge
also rejected the claim that the
land had been fully utilised,
describing that assertion even
if true, as clear evidence of
tresspatory acts, rather than
evidence of proof of ownership.
These findings are supported by
the record. There is no legal
justification for disturbing
them.
Given the
nature of the pleadings, and the
duty cast on the appellants,
producing a self serving
statutory declaration is
definitely the most unreliable
mode of proving ownership of the
disputed property. The witnesses
the appellant produced in court
knew next to nothing about the
actual transaction. In the words
of the trial judge, they were in
no position to produce primary
evidence, which conventionally,
is the most credible evidence in
cases of this kind. Again, they
allege that one Joseph Andoh,
the man they claim has firsthand
knowledge about the transaction
is so ill he cannot testify. The
chief against whom this serious
charge is made is dead. J. B.
Eshun, the gentleman who is
alleged to have collected the
money on behalf of the chief is
also dead. True, the appellate
court wrongly decided he was
alive and consequently drew the
wrong inferences from their
failure to produce him as a
witness. But this erroneous
finding and inferences drawn
therefrom do not invalidate the
final decision of the court. The
important point is that Eshun is
also dead. Our jurisprudence
has examined the approach courts
must adopt when evaluating
charges and assertions made
against dead persons. We have
firmly established the principle
that real danger lies in
accepting without questioning or
close scrutiny, claims against a
dead person. The caution that
such claims must be weighed
carefully is based on plain good
sense and has consistently been
applied in a number of cases
including:
Fosua & Adu
Poku vs. Dufie (decd) Adu Poku
Mensah [2009-] SCGLR 310.
In Re: Krah
(decd) Yankyeraah and ors. vs.
Osei Tutu & Anor. [1989-90] 1
GLR 638.
Bisi v.
Tabiri [1987-88] 1 GLR 360.
The principle
as enunciated by Brett MR, in
the case of In Garnett,
In re;
Gandy v Macauly [1886] 31 Ch D 1
at 9 C.A. is that:
“The law is
that when an attempt is made to
charge a dead person in a
matter, in which if he were
alive, he might have answered
the charge, the evidence ought
to be looked at with great care;
the evidence ought to be
thoroughly sifted, and the mind
of any Judge who hears it ought
to be, first of all in a state
of suspicion…”
Given these
set of adverse facts - the death
of all the crucial witnesses,
coupled with the alleged loss of
the original document allegedly
prepared by the chief and
deposited for processing was
missing from the Lands
Commission - it certainly lies
ill in the mouth of the
appellants to urge that we rely
solely on their statutory
declaration and a proforma from
the Lands Commission, which
document is said to contain
nothing more than information
extracted from the lost
document, and so is not a
primary source document, to
reverse the findings of the two
courts.
In land
litigation, even where living
witnesses who were directly
involved in the transaction
under reference are produced in
court as witnesses, the law
requires the person asserting
title, and on whom the burden of
persuasion falls, as in this
instant case, to prove the root
of title, mode of acquisition
and various acts of possession
exercised over the subject
matter of litigation. It is only
where the party has succeeded in
establishing these facts on the
balance of probabilities, that
the party would be entitled to
the claim. We would be
committing a grievous error, if
we glossed over these critical
legal imperatives, proceed to
overturn the clearly supportable
concurrent findings of the two
lower courts and find for the
appellants on the threadbare
evidence they produced at the
trial. It is plain from the
evidence that the appellants
failed to establish the actual
mode of acquisition, since none
of the witnesses who testified
were involved in the actual
transaction.
The DW1 made
two interesting revelations
while being cross-examined. We
reproduce answers he gave to the
following questions asked under
cross-examination.
“Q. Apart
from Mr. Andoh whom you referred
to initially during your
evidence-in-chief and whom you
said is indisposed, do you know
of any other officer or official
of the defendant company who is
aware or was involved in the
transaction affecting the
additional 29 acres of land
which is in dispute in this
case?
A. Yes
Q. Who is
that person?
A. There are
two people, Mr. Biasi Sarafeno
and the late Amanor who worked
with the Lands Department.”
Yet again,
surprisingly, Mr. Biasis
Sarefeno never appeared to
testify. No explanation was
however given as to why he was
not produced at the trial. The
appellants alleged the man who
acted on behalf of the appellant
company in this transaction, Mr.
Joseph Andoh, the company’s
accountant at the time is very
ill; afflicted by that
unfortunate malady relating to
memory loss known as amnesia. In
the principal witnesses own
words, it is “very difficult for
him to recollect or recall any
of his actions at this point in
time.” This assertion was made
without any independent medical
evidence in support of the fact.
From every angle, this piece of
information throws doubt, great
doubt, if not suspicion on the
appellant’s case. Why? The court
was not given the opportunity to
see Mr. Andoh, who clearly is a
material witness, to check the
veracity of this allegation of
memory loss. What this means is
that in this case all the
persons allegedly connected to
the transaction are either dead
or ill and original documents
relating to it are completely
missing from the Lands
Commission, without any vital
official document from which the
crucial fact of the sale of some
29 acres at a subsequent date
could be cross-checked or
reasonably inferred.
Interestingly, when the
appellants discovered this great
loss, they did not go back to
their grantors to find out what
assistance they can offer, but
they rather chose to prepare for
themselves a statutory
declaration which in substance
is a self-serving document!
But we would
like to raise this question.
Wherein lies the wisdom in
keeping Mr. Andoh, this clearly
sole material living witness
away from the court? Is the
appellant company in all honesty
expecting the court to buy their
claims about Mr. Andoh on their
mere say so, and proceed to give
judgment in their favour based
on the non weighty evidence of
persons who did not directly
participate in the transaction,
and on a self serving statutory
declaration? In plain terms,
the failure to make the witness
available to the court to enable
the trier of fact make its own
independent judgment of whether
or not he was suffering from
amnesia, does militate against
their own case. Courts do have
inherent power to move to
locations outside of the court
room to take evidence from
prospective witnesses who for
one reason or the other cannot
make a physical appearance in
court. Indeed, the fact that no
medial report, let alone a
credible medical one was
produced in support of the facts
alleged, makes their claim about
the witnesses illness suspect.
It is trite learning that it is
the preserve of any court before
whom a prospective witness is to
appear, to determine the issue
of whether or not that person is
fit to testify or capable of
testifying. True, nothing
stopped the appellants from
testifying to that crucial fact
about memory loss, but the risk
or danger that lies in a failure
to provide corroborative
evidence of the fact is plain
and obvious. Very little or
indeed, no weight should be
attached to the assertion.
Interestingly, in this simple
case, in effect all three courts
have been faced with the
situation where the crucial
witnesses are all dead, one of
the living witnesses so ill, he
can be of no use to a court of
law, whilst the original
documents are lost.
These are the
reasons which compelled us not
to disturb the findings and
conclusions of the two lower
courts, but rather endorse them.
G. T. WOOD
(MRS)
CHIEF
JUSTICE
S.A.
BROBBEY
JUSTICE
OF THE SUPREME COURT
J. V. M.
DOTSE
JUSTICE
OF THE SUPREME COURT
ANIN YEBOAH
JUSTICE
OF THE SUPREME COURT
B.
T. ARYEETEY
JUSTICE
OF THE SUPREME COURT
COUNSEL:
SAMUEL DZIGBA
FOR THE
DEFENDANT/APPELLANT/APPELLANT.
JOHN MERCER
FOR THE
PLAINTIFF/RESPONDENT/RESPONDENT
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