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JUDGMENT
WOOD J.A.
The facts giving rise to this
appeal from a decision of His
Honour Julius Ansah as he then
was, sitting at the Agona Swedru
Circuit Court on the 16th of
August 1989 are very simple
indeed.
The respondent, who is a farmer
and a traditional ruler,
claiming that the appellant with
whom he shares a common boundary
has tresspassed onto his portion
of ancestral land, sued the
appellant for a number of
reliefs including a declaration
of the title to the disputed
land, general damage for
trespass and perpetual
injunction. The appellant, who
on the other hand claimed the
land to be his, denied all the
material allegations on which
the respondent founded his claim
and called him to strict proof
of them. Both sides led evidence
on their own behalfs and called
witnesses in proof of their
rival stories and what
constitutes their boundary
features. After rightly
identifying the nature of the
dispute between the parties as a
pure boundary dispute, the
learned trial judge carefully.
(1) Outlined the legal
principles governing the
determination of disputes of
this kind.
(2) Evaluated the evidence led
on both sides, made the
pertinent findings of facts, and
drew the necessary influences
and conclusions.
(3) gave reasons for opting for
the respondents version and
(a) Consequently gave judgment
for him.
The appellant, being
dissatisfied with the said
decision has appealed to us on
one general ground only, namely
that the evidence which he led
at the trial was not considered,
a complaint which in my humble
opinion cannot be justified
having regard to the evidence on
the record, the reasoned
judgement of the learned trial
judge in particular.
An even cursory look at the
reasoned decision reveals that
after posing the question “……..
how did the defendant meet his
case?”
The learned trial judge reviewed
the evidence of the appellant
himself as well as that of his
two witnesses who strangely are
his not his boundary owners but
tenant farmers with acquired
mere licence to farm on the land
he claims to be his. He then
gave his reasons for preferring
the respondents case to the
appellants.
Nonetheless, as happens in
appeal cases — both civil and
criminal when an omnibus ground
such as, the “judgement is
against the weight of evidence”
in civil case, or its equivalent
in criminal cases is being
urged, counsel has taken us
through the record and made a
number of submission which I
wish to consider in the same
order that they were presented.
It was first submitted that by
the respondents own admission
that the appellant had been on
the disputed land for some
twenty five years before the
respondents entry and adverse
claim to title, the learned
trial judge erred in not
adverting his mind to these
vital pieces of evidence and
concluding there upon that the
respondent was either caught by
laches and acquiescence or that
his claim was statute barred.
I however find no merit in this
argument. The appellant’s
statement of defence is very
short and straightforward. He
merely denied the facts pleaded
by his opponent and did not (as
he was required under the rules,
if he had intended these matters
to form part of his to defence
raise either the plea of statute
bar or laches and acquiescence
ground. Moreover, we find no
direct evidence from appellant
in proof of any of these
defences. In my view, had the
learned trial judge proceeded,
on these grounds to have
dismissed the respondents case,
he would have fallen into the
same trap as his learned brother
in DUAGBOR & OTHERS VRS. AKYEA
DJAMSON 1984 – 86 GLR 698. He
would have violated the
principle in DAM VRS. ADDO 1962
200 SC namely that it is wrong
for a court to proprio motuo
substitute a case or raise a
defence substantially different
from that which a party has of
himself put of. Indeed in the
DUAGBAR case, that unwarranted
intervention by the learned
judge led this honourable court
on the 29th May, 1986, speaking
with one voice through Abban
J.A. as he then was to hold
that:
“since ……….. the plaintiff did
not plead estoppel by laches and
acquiescence in any form or
shape and since no evidence was
given by the plaintiff to
support that kind of estoppel,
it was wrong for the learned
trial judge to have founded his
decision on the so called
estoppel by laches and
acquiescence to defeat the
co-defendants counter-claim”
It does follow that an appeal
based on this argument must
fail.
It was next submitted by
appellant counsel that having
regard to certain material
pieces of evidence from the
respondent and his witnesses, PW
2 and PW3, judgment ought not to
have gone in his favour. These
pieces of evidence it was urged,
completely destroyed his case.
My understanding of the
argument, is that since these
vita pieces of evidence of the
witnesses were contradictory of
the respondents own version of
them, the discrepancies favour
the appellant, coming as it did
and from his opponent, and
judgement for the appellant
amounts to failing to give due
consideration to the appellants
case.
The pieces of evidence referred
to are the following:—
“(1) The PW1’s version of who
the respondents boundary owners
are.
He identified them as the
defendant, Kwame Ansah and Kwasi
Etuah.
(2) The PW2’s express denial
that the respondent had any food
crops on his land.
(3) The testimony of the PW3
that it was Kwabena Nyarko who
sold the disputed land to the
defendant’s father.
Having regard to the sole ground
upon which this appeal is based
namely that the defence was not
considered, (not that the
judgment was against the weight
of evidence), I find it
difficult to understand the
appellant’s complaint, for as I
have already pointed out, the
judge duly considered his case.
Be that as it may, it is even
difficult to see how the PW3’s
testimony of who sold the
disputed land to the appellant’s
father is contradictory of the
evidence led by the respondent.
On the contrary, the position
that he had consistently
maintained, both in his pleading
and evidence is that the
respondent, with whom he shares
a common boundary acquired the
land from Kwabena Nyarko.
The only major complaint he has
against the appellant land for
which cause he instituted this
action, is the various acts of
trespass committed by him on
that part of his land known as
Dowandzi at Worasenten.
Again, the learned trial judge
did not hesitate to find against
the respondent that no food
crops belonging to him have been
destroyed and consequently that
he cannot be entitled to recover
damages in that regard. He did
however find in his favour that
Wawa tress and some cocoa trees
had been destroyed and
accordingly found for him on
that issue; even though he
conceded that the respondent and
his witnesses conflicted on the
issue of the number of cocoa
trees destroyed. The plain
meaning of the issues learned
trial judges findings on these
issue is that contrary to
appellant counsels contention,
the learned trial judge did
carefully consider whatever
discrepancies or conflicts
existed in the respondent’s
case. He found them, as he was
entitled to do, to be minor, not
material and so incapable of
detracting from the totality of
the evidence led by the
respondent at the trial. Under
these circumstances, we in this
appellate court would have no
power to interfere with these
primary findings of fact.
But perhaps the only substantial
matter raised is the fact that
PW1’s account of who the
respondent’s boundary owners
differ from respondent’s own
version. Having examined the
record, I do think the
differences in their account can
be satisfactorily explained. The
evidence dearly shows the PW1
had at the time of giving
evidence been on the land for
thirty years. He had worked on
the land for some fifteen years
before the respondent himself
entered the land. In an attempt
to prove she was an untruthful
witness it was suggested to her
that
Q “So if you went to the land
30 years ago and he says he went
there 15 years ago it would not
be true he gave the wood to you
(sic)” her answer was
A Plaintiff met me on the
land. It was his elder brother
who gave the land to me. When he
died the plaintiff came to meet
me on the land.”
Then, when she was questioned on
the more critical issue of the
persons she named as boundary
owners she gave the following
answers.
“Q Plaintiff does not mention
any Efuah as one of his Boundary
owners.
A Some of the boundary owners
are dead and I did not meet
them.
Q Plaintiff did not mention
any Kwame Ansah’s name as a
boundary owner.
A These are the names of the
people I came to meet.”
The respondent called other
witness at trial who evidence on
(1) who his boundary owners are
and (2) his boundary features
tallied in all material respects
with his own version.
Since the appellant concedes
that the PW1 does farm on the
respondent’s land this seeming
discrepancy in her evidence and
that of the respondent should
not in my view destroy the
respondent’s case. Her evidence
at worst, could be said not to
have added value to the
respondents cause, for without
it is the learned trial judge’s
findings would still have been
supportable by the evidence on
the record.
Other issues raised in this
appeal are that
(1) The respondent did not know
and failed to lead evidence on
the extent of his land and so
failed to succeed on the
strength of his own case.
(2) His failure to call the
vendor was fatal to his case and
he produced no credible evidence
such as a deed of conveyance in
proof of his title.
Appellant counsel’s further
contention is that on the other
hand, the appellant was more
consistent and reliable having
produced a conveyance on the
land and having by himself and
through his witnesses given a
vivid description of the land in
dispute. I respectfully disagree
with these views.
The record clearly shows that
the respondent satisfied all the
legal requirements that must be
met by persons who seek the
reliefs of declaration to title,
tresspass and injunction. These
are that
(1) He or she must identify the
land he claims see (I) Ehuran
vrs Atta 1960 GLR 224, (ii)
Nyikplorkpo vrs. Agbodotor 1987
– 1988 art 165
(2) He must succeed on the
strength of his own case and not
on the weaknesses of the
opponents – Odametey vrs. Clocuh
1989 – 90 GLR 14.
But indeed, as the learned trial
judge argue rightly found, this
case being a boundary dispute,
it was imperative that the
respondent who instituted the
action produce some independent
corroborative evidence of the
boundary features and of the
common boundary with his
opponent, the appellant.
Otherwise, he was bound to fail.
The most important witness he
produced at the trial was the 80
years old PW2 who the learned
trial judge justifiably
described as a witness of truth
“whose” truthfulness is as
gleaming as the mid day sun”.
“The court thus unhesitatingly
accepted his version of the
boundary owners and features.
Since his wife and children had
at the time of giving evidence
and for some thirteen years been
the appellants tenant farmers,
we see how weighty the evidence
which he gave is. Ordinarily,
with the appellant being his
wife and children’s benefactor,
one would have expected him to
be unduly favourable to the
appellant not the respondent.
As against his evidence, we have
that of the respondent whose
conveyance Exh 1 was not helpful
to the court for the simple
reason, as the learned trial
rightly found that it does not
describe the boundary features
of the land sold. The DW1 who is
also only tenant farmer on his
land devalued the evidence he
gave when he made the following
concessions under cross
examination
“Q Do you know the extent of
the defendant’s land
A No.
Q I am suggesting to you as you
don’t know the extent of
defendant land, you don’t know
when he trespassed to another
land.
A No, I don’t know”.
The evidence of the DW2 another
tenant farmers was again not of
much use to his case either, for
again, he conceded that the
defendant who asked him to weed
only up to an “Onyina tree” did
not show him the extent of his
land or all of his boundaries.
In effect then, the appellant
did not call any of his boundary
owners to help him establish the
full extent of his land. Neither
did he call any independent and
reliable witness to corroborate
his evidence on the boundary
features.
The learned trial judge reviewed
the evidence adduced on both
sides and found as a fact that
of all the witness called at the
trial, the respondents was on
the balance of the probabilities
more credible, it having been
corroborated by a truthful
witness. His acceptance of the
respondent’s description of
their common border in
preference to the appellants’,
namely that the Onyina, coconut
and colanut tree mark their
common border is unimpeachable
and the same ought not to be
disturbed. I find no merit in
this appeal and consequently
hereby dismiss it and affirm the
decision of the trial court.
G.T. WOOD (MRS)
JUSTICE OF APPEAL
BROBBEY J.A.:
I agree that the appeal fails
and should be dismissed.
S. A. BROBBEY
JUSTICE OF APPEAL
BENIN J.A.:
I agree
A. A. BENIN
JUSTICE OF APPEAL
COUNSEL
RAY KAKRABA-QUARSHIE for
Plaintiff.
O.K. IMEAH for Respondent. |
