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J U D G M E N T
ANSAH, J.S.C.
The plaintiff sued the
defendants in the High Court,
Agona Swedru, for
(a)
a declaration of title and
recovery of possession of a
piece or parcel of land situate
lying and being at a place
commonly known and called
Ayensuako and bounded as follows
on the North by Kwa-Baa, Kobina
Dadzie, Okuta and Ayensuako
stream
On the North by Kojo Ahoro,
Kwa-Otuo, Kwaku Bu.
On the East by Kojo Ahoro,
Ofadaa lands.
On the West by Ayensu River.
(b)
¢20,000,000.00 general damages
for trespass.
(c)
Order for accounts, and;
(d)
Perpetual Injunction restraining
defendants and agents and
assigns from interfering with
plaintiff’s peaceful enjoyment
of the land in dispute.
In support of his case, the
plaintiff stated Nana Kofi Antwi
I, also known as Ofinam, first
settled on the land in dispute
as a tribute paying tenant to
the Duakwa Stool. In 1914 he
agreed to a request by his
brother Osimpo the herbalist and
his children, to join him to
till the land. They went to the
land acknowledging Nana Antwi I
as their overlord. Osimpo died
in 1925 but his children
remained on the land on the
leave and license of Nana Kofi
Antwi I.
Later in 1928, the Chief of
Duakwa, Nana Amuakwa I, offered
the land to Nana Kofi Antwi I
for sale. Nana Kofi Antwi I
accepted the offer, and the land
was sold to him for #465.10.
When the money was paid a
receipt was issued to
acknowledge payment. This was
tendered at the trial as Exhibit
A. The plaintiff tendered
Exhibit B dated 1930 prepared to
evidence the sale, to prove his
assertion of the sale of the
land to his predecessor in
title.
The plaintiff traced the
sequence of succession that when
Nana Kofi Antwi I died in 1930;
he was succeeded by Nana Kofi
Antwi II, till it got to the
turn of Nana Kofi Antwi V, the
present plaintiff at the
trial.
It was in 1976 when Nana Kofi
Antwi II died that a faction of
the Ayensuako elders enstooled
one Kwaku Arhin, a grand-child
of Osimpo, as the chief of
Ayensuako. Ofinam’s successors
brought an action at the Awutu
Traditional Council seeking an
order to destool Kwaku Arhin.
Kwaku Arhin himself conceded
that he was not a chief of
Ayensuako and therefore withdrew
his claim. Accordingly Nai
Awulabi was enstooled as Nana
Kofi Antwi IV and controlled the
lands of Ofinam until he died in
1997.
In 2000, the plaintiff was
enstooled as Nana Kofi Antwi V
and one Akyeampong slaughtered a
sheep to claim the land in
dispute, for it had been jointly
purchased by Ofinam and Osimpo
and he had come to claim the
portion that went to Osimpo his
ancestor. His action was opposed
by the plaintiff who reported
the matter to the Police.
It was after these events that
it came to light that the second
defendant had felled fifty palm
trees on the land; it was
further revealed it was the
first defendant who authorized
him to do that. The result was
the institution of the suit that
has traveled the whole distance
to this court.
On the other hand the defendant,
the respondent in this appeal
pleaded that the land was
acquired jointly by Ofinam and
his cousins, who only allowed
him to use his name in the
documentation for he was the
educated and eldest amongst
them.
The suit being one for a
declaration of title the
plaintiffs have an onerous
burden to discharge. This is
trite law. Akoto II v Kavege
[1984-86] 2 GLR 365, C.A,
decided in an action of
declaration of title in a
judgment read by Francois JSC
that:
“The suit being one for a
declaration of title, the
plaintiffs have an onerous
burden to discharge. This is
trite law and would have
necessitated no further comment
but for the procedure adopted by
the plaintiffs of throwing this
burden to the winds. No root of
title was disclosed. Neither the
tradition of acquisition of an
inherited estate nor the
incidents of purchase, if
acquired by sale were divulged.
No clear and positive acts of
unchallenged and sustained
possession or of substantial
user emerged from the evidence.
The boundaries of the land were
not established. No boundary
neighbors were called to testify
to the ownership of the
adjoining lands.”
Akoto II v Kavege
(supra) laid in pithy terms what
a plaintiff in an action for
declaration of title to land
must prove on the preponderance
of probabilities in order to
secure a verdict by the court in
his favor.
In the earlier case of Odoi v
Hammond [1971]2 GLR 375, CA,
Azu Crabbe JA, (as he then was),
said at p382 that:
“It is now common learning in
this country that in an action
for declaration of title to land
the onus is heavily on the
plaintiff tom prove his case,
and he cannot rely on the
weakness of the defendant’s
case. He must indeed ‘show clear
title’: per Yates Ag. C.J. in
Kuma v Kuma (1934) 2 WACA 178
at 179. In Kponuglo v Kodadja
(1933) 2 WACA 24 at 25, the
Judicial Committee of the Privy
Council observed that in an
action for a declaration of
title the first question
chronologically to consider in
the appeal is the traditional
evidence regarding the
acquisition of a title to the
disputed territory. For a stool
or family to succeed in an
action for a declaration of
title it must prove its method
of acquisition conclusively,
either by traditional evidence,
or by overt acts of ownership
exercised in respect of the land
in dispute.”
Before embarking upon
determining the success or
otherwise of this appeal, it was
necessary to dispose of a matter
of procedural importance, namely
the jurisdiction to hear and
determine the suit. In brief the
defendant attacked the
jurisdiction of the trial court
to hear and determine the suit
for even though it was initially
filed as a land suit it
metamorphosed into one in which
it became necessary to determine
whether the respondent was a
chief who had the requisite
capacity to sue or institute the
action. Section 66 of the
Chieftaincy Act, 1971, (Act
370), cause or matters affecting
chieftaincy are defined as:
“cause or matter affecting
chieftaincy means a cause,
matter, question or dispute
relating to:
a)
the nomination, election
appointment or installation of a
person as a Chief or claim of a
person to be nominated , elected
appointed or installed a chief
or,
b)
the enstoolment or abdication of
a chief.”
The distinction between
chieftaincy and the courts is
not hermetic. See In Re Osu
Stool; Ako Nortei II (Mankralo
of Osu) v Nortey Owuo III
(Intervener) [2005-2006] SCGLR
628, SC, where this court
held that the mere incidence of
an issue relating to chieftaincy
in proceedings in the ordinary
court did not constitute it as a
cause or matter affecting
chieftaincy. Whether or not a
genuine cause or matter
affecting chieftaincy had arisen
would depend on the facts of the
particular case. If the
submissions by the defendants
were to prevail, all a person
who has been sued by a chief in
say an action for defamation,
has to do is to challenge the
capacity of the chief and thus
preclude the court from
proceeding to hear the matter
for, it would metamorphose from
its ordinary humble beginnings
as a land suit, into a full
blown chieftaincy dispute. This
would be an absurdity pure and
simple.
In this case the court only made
a determination that plaintiff’s
enstoolment complied with the
Chieftaincy Act, 1971 (Act 370),
by relying on the Gazette (a
statutory publication and
extracts from the National
Register of Chiefs). Evidence of
gazzetation is enough for the
High Court to proceed with a
land dispute involving stool
land. It is not the duty of the
court to determine whether the
processes for installing one as
a chief have been met or not.
This case is different from
Avadali IV v Avadali [1992-93]
GBR 733 which held that the
claims therein were matters
affecting chieftaincy and
outside the courts jurisdiction
because the dispute was about
property ownership and the
chieftaincy claims were
ancillary to it.
In Avadali, the plaintiff
sought a declaration that he was
the head of the Anyigbe clan and
retraining the defendant from
holding himself out as such. The
court determined the plaintiff
sought headship of the clan and
not land-in contrast, the
instant case is about title to
property, pure and simple, with
no embellishments, trappings and
connotations of chieftaincy in
it. The trial High Court had
jurisdiction to hear and
determine it. Any submission it
was a cause or matter affecting
chieftaincy is rejected; any
ground of appeal on such a
ground is equally dismissed.
Issue as to joint ownership of
the land:
As stated the co-defendants
pleaded in paragraph 11 of their
amended statement of defence
that:
“In answer to paragraphs 13, 14
and 15 of the plaintiffs
statement of claim the
co-defendant says that the
purchase price of the land was
not solely furnished by Ofinam
but rather because Ofinam was
the elder brother and educated
he acted as leader and that
consequently his name was used
in all transactions and
documents.”
By this pleading who acquired
the land was thrown into issue
to be resolved by evidence. That
was more so as the plaintiff
denied this paragraph 11 of the
amended statement of defense in
his reply to the co-defendant’s
amended statement of defence.
The onus was on the plaintiff to
prove his assertion of sole
purchase, whilst the defendant
bore the onus of proving his
case of joint purchase by Ofinam
and Osimpo his predecessor in
title.
The plaintiff sought to prove
his case by tendering in
evidence the indenture and
receipt evidencing the sale, as
Exhibits B and A respectively.
These bore the name and recital
that the land was purchased by
Ofinam alone. It was a
transaction on an issue as
solemn as a sale of land.
On the other hand the defence
tendered no such documents to
support their case of joint
purchase. If their case of a
purchase were to be true such
evidence would be supported by
documents given to them at the
purchase. This robbed their
evidence of any credit and
belief.
Apart from that in his evidence
under cross-examination the
co-defendant contradicted his
pleadings referred to in his
amended statement of defence.
This was what transpired:
“Q I put it to you that he came
to settle on land which Nana
Kofi Antwi I had acquired.
-
It is not true he settled
there as his own land.
Q. From whom did he acquire the
land on which he came to settle
in 1916?
A. He Nai Osimpo, Kofi Antwi
and Akotia Larbi who bought this
land from Agona Duakwa.
Q. I put it to you the land the
subject matter into thereof
plaintiff’s suit was acquired by
Nana Kofi Antwi I alias Nana
Ofinam.
A. It is not true. The 3 of them
bought it together. They were
all cousins who came together
and bought the land.
Q. He acquired the land in
dispute in 1910 for (sic) Duakwa
Stool elders.
A No, he purchased it together
with 2 other cousins i.e. Nai
Osimpo and Akotia Larbi”.
I must observe the co-defendant
was supported to the hilt by his
witness Kofi Tetteh Abbey that
the three persons bought the
land from the Chief of Duakwa,
Nana Amoakwa in 1910.
As stated, available documents
had it that the land was sold in
1910, but there was evidence
Nana Osimpo I died in 1925,
which was to say, was more than
a decade after his death. It was
impossible for a dead man to
have been alive to take part in
buying property by the time it
was proved to have taken place.
That fact alone would belie the
truth in the assertion by the
co-defendant that Osimpo was a
joint purchaser with Nana Kofi
Antwi I. The co-defendant failed
to prove that assertion. The
reason was that it was trite
that
“where a party makes an
assertion capable of proof in a
certain way e.g. by mproducing
documents, description of things
reference to other facts,
instances or circumstances and
his averment is denied, he does
not prove it by merely going
into the witness box and
repeating that averment on oath,
or having it repeated on oath by
his witness. He proves it by
producing other evidence of
facts and circumstances, from
which the Court can be satisfied
that what he avers is true.” see
Majolagbe v Larbi & Ors
[1959] GLR 190.
In this case the plaintiffs led
evidence that Ofinam purchased
the land in dispute in or around
1910 for ...and produced
documents in the form of an
indenture as evidencing the sale
and who the vendors were: that
was in Exhibit B. He also
produced evidence of payment of
the purchase price by the
purchase price, to wit Ofinam.
That was Exhibit A. These
documents did not mention the
name of any person as having
made any payment in addition to
Ofinam. These documents spoke
eloquently for themselves on
these vital matters.
The defendants did not produce
any documentary evidence on the
purchase by the three other
persons and left it more
probable that Ofinam purchased
the land in dispute from the
Duakwa Stool represented by the
chief Nana Amoakwa and his
elders as vendors and Ofinam as
the purchaser. The plaintiff’s
claim was proved on the balance
of the probabilities whilst the
case of the defendants stood
unproved. The claim of joint
ownership was to be dismissed as
an unproven assertion.
I must observe that when the
defendants claimed the land was
purchased jointly by Ofianm and
Osimpo, they were effectively
admitting Ofinam bought it only
with others or another. It was a
confession and avoidance sort of
defence. When the contrary was
asserted, the defendants assumed
the burden of proving that the
land was purchased with the
contribution by Osimpo; in this
case that vital evidence was not
forthcoming and the assertion
must be dismissed as unproved.
Adverse Possession:
The plaintiff contended that
even if his deed was defective
he still acquired a legal
protection by virtue of the
Limitation Decree, 1972, NRCD
54, which provided that:
“10 (i) No action shall be
brought to recover land after
the expiration of twelve years
from the date on which the right
of the action accrued to the
person bringing it or, if it
first accrued to some person
through whom he claims, to that
person.”
The plaintiff contended the
statutory period began in 1976
when tenant farmers began paying
him tribute. However a claim of
an adverse possession cannot be
based on clandestine payments of
tribute alone. They must be
open, visible, unchallenged and
apparent so that it gives notice
to the legal owner that someone
may assert claim; for such
payments as were met with
opposition and were made
irregularly but were done only a
few times, could hardly support
a claim of adverse
possession.
Acts amounting to establishing
adverse possession are many and
may be in the nature of fencing
the property, posting signs
posts, planting crops, building
or raising animals in a manner
that a diligent owner could be
expected to know about them. The
list may be taller still.
In this case an adverse
possession claim could only
accrue when the defendant
slaughtered a sheep or the
timber was cut in 2000, an
insufficient amount of time to
satisfy the twelve year
statutory year.
Considering the above, the court
was within its jurisdiction in
resolving this claim as a
veritable property issue. The
defendants could not prove a
superior title to the land based
on original joint acquisition
and ownership or adverse
possession.
In the result the judgments of
the lower courts for the
plaintiff should be affirmed and
the appeal dismissed.
J. ANSAH
JUSTICE OF THE SUPREME COURT
DOTSE, J.S.C.
BACKGROUND
On the 17th of April
2008, the Court of Appeal
unanimously dismissed the appeal
of the Appellant against the
judgment of the High Court,
Agona Swedru in an action inter
alia for declaration of title to
land. Dissatisfied with the
judgment of the Court of Appeal,
the Appellants have appealed to
this court initially on the
ground that the judgment was
against the weight of evidence.
Subsequently the Appellants
filed and argued the additional
ground that “The learned
trial judge lacked the
jurisdiction to have heard and
determined the suit as the same
entailed a determination of a
cause or matter affecting
chieftaincy”
FACTS
The facts which gave rise to the
current dispute concerned a
piece of land at a place known
as Ayensuako/Osimpo. According
to the Plaintiff
/Respondent/Respondent
(hereinafter referred to as
Respondent) he is the Chief of
Ayensuako/Osimpo and brings the
action representing the stool.
The land in dispute was
originally acquired by his
ancestor Opanin Ofinam also
known as Nana Kofi Antwi I by
customary grant from the Duakwa
Stool in 1910 for settlement and
farming purposes. He paid yearly
tribute to the Duakwa stool in
the form of money, drinks and
sheep in recognition of his
grantors title.
Nana Kofi Antwi then brought a
couple of his relatives namely
Kwatia Larbi and Okuampa Larbi
to help cultivate the land. He
also placed them at strategic
boundaries to prevent
trespassers onto the land.
In about 1914, Opanin Kwadwo
Osimpo, a herbalist and relative
of Nana Kofi Antwi requested for
land at Ayensuako to work on.
Nana Antwi therefore granted him
portions of the land to work on.
According to the Plaintiff, the
area where Nana Osimpo occupied
became known as Osimpo because
when people were going to
consult him as a herbalist, they
simply said “I’m going to
Osimpo” hence the name.
In about 1925, Osimpo passed on
but his children were allowed to
continue working the land as
they were doing before their
father died, as he himself was
preoccupied with his functions
as a herbalist and could not
effectively farm the land.
In about 1928, the Duakwa Stool
decided to completely convey
their entire land and made this
known to Nana Kofi Antwi. Nana
agreed to purchase the land for
the agreed price of £465.10. A
receipt evidencing payment of
£450 was tendered in as Exhibit
A. In 1930, an Indenture was
executed between the Duakwa
Stool and Kofi Antwi.
This was tendered and accepted
as Exhibit B.
In 1938, Nana Kofi Antwi died
and he was succeeded by Nana
Kofi Antwi II who reigned from
1940 to 1976. After his death in
1976, Nana Kofi Antwi III aka
Nana Okai was installed as
chief. During his reign, a
grandson of Opanin Osimpo, Kweku
Arhin challenged him as to the
ownership of the land in dispute
but later withdrew his claim.
Nana Antwi III however abdicated
and was succeeded by Nana Kofi
Antwi IV. It was after the death
of Nana Kofi Antwi IV that the
present respondent was installed
as the chief.
It was further averred that in
September of 2000, a certain Mr.
Acheampong, who had styled
himself as Nana Osimpo III (the
present appellant) purported to
slaughter a sheep to claim the
land in dispute. This act was
stoutly resisted by the
Respondent and the matter went
before the police at Agona
Swedru, who advised that the
matter be settled at the
Traditional Council. It was
after this incident that
Respondent realised that about
55 oil palm trees had been
felled on portions of the land
in dispute and further
enquiries revealed that it was
the 1st
Defendant/Appellant who had sold
them to 2nd Defendant
Appellant. Respondent then
issued a writ in the High Court
for a declaration of title to
the land, damages for trespass
and an order for perpetual
injunction.
1st and 2nd
Defendants, in their defence
denied the title of the
Respondent and averred that the
land in dispute was acquired
jointly by Opanin Osimpo and
Nana Kofi Antwi I. They further
contended that at no time had
they or their ancestors been
licensees of
Plaintiff/Respondent. According
to the 1st Defendant
Appellant, he had been put in
possession of the disputed land
by Nana Osimpo II. Defendants
also relied on the plea of jus
tertii and further on a plea of
adverse possession against the
Plaintiff Respondent. They also
denied that the Plaintiff was a
chief and therefore had no
capacity to bring the action as
according to them, he had not
sworn the oath of Akito which
was an essential pre-requisite
to becoming a chief.
Co-Defendant later joined the
suit and also relied on these
same defences. At the trial
court, judgment was entered for
the Plaintiff on all his reliefs
and the Defendants appealed to
the Court of Appeal. The
judgment of the trial court was
upheld hence this present
appeal.
GROUNDS OF APPEAL
-
The learned trial judge
lacked the jurisdiction to
have heard and determined
the suit as the same
entailed a determination of
a cause or matter affecting
chieftaincy”
-
The judgment was against the
weight of evidence
The appellants argued that the
trial judge was wrong to have
gone into the matter as they had
raised the issue of capacity of
the Respondent and therefore
that since this was a cause or
matter affecting chieftaincy,
the High Court lacked
jurisdiction.
NATURE OF THE RESPONDENT’S CLAIM
It is perhaps pertinent at this
stage to reflect on the reliefs
the Plaintiff endorsed on his
writ of summons at the High
Court. The reliefs read as
follows:
-
Declaration of title and
Recovery of possession of a
piece or parcel of land
situate lying and being at a
place commonly known and
called Ayensuako and bounded
as follows on the North by
Kwa-Baa, Kobina Dadzie,
Okuta and Ayensuako stream,
on the North by Kojo Ahoro,
Kwa Otuo, Kwaku Bu, on the
West by Ayensu river
-
¢20,000,000 general damages
for trespass
-
Order for accounts
-
Perpetual injunction
restraining Defendants and
agents and assigns from
interfering with Plaintiff’s
peaceful enjoyment of the
land
It must be noted that it is from
the nature of a Plaintiff’s
claims before the trial court or
the Defendant’s counterclaim
that basically determines the
type of suit that is before the
court. Thus as in the instant
case, where the Appellants
decided to introduce incidents
of what is a cause or matter
affecting chieftaincy, that
alone by itself cannot be used
to change the character of the
reliefs before the High Court.
What the trial court did and
rightly in our view was to have
considered the nature of the
reliefs the Respondent claimed
before it as per the pleadings
in the statement of claim.
Considering the character of the
reliefs that the Respondent
claimed alongside the pleadings,
it is clear that the issue of
what is a cause or matter
affecting chieftaincy was never
a relief either directly or
indirectly. Thus, whenever a
court is faced with determining
whether it has jurisdiction or
not in a cause or matter, it
must not only look at the
endorsement on the writ of
summons, but the pleadings in
support of the endorsement. If
such an evaluation is done, the
decision of the learned trial
judge to proceed and determine
the case cannot be faulted.
DID THE HIGH COURT LACK
JURISDICTION?
Luckily for us, the Supreme
Court has in a number of decided
cases stated the above principle
which we have to apply in the
instant case.
Let us begin our excursus with
the following cases:
-
In the case of Republic v
High Court, Koforidua, ex
parte Bediako II [1998-99]
SCGLR 91
Sophia Akuffo JSC stated at
page 102 of the report as
follows”
“To my mind, the mere fact that
the question of whether or not a
person is a chief rears its head
during an application for
certiorari before the High Court
does not necessarily constitute
the matter as one affecting
chieftaincy for purposes of
Section 57 of the Chieftaincy
Act, 1971, where such a question
arises as a matter secondary to
the determination of the
fundamental question of whether
an inferior body had the
jurisdiction to do something,
and does not give rise to the
necessity to make a final
determination of such status and
whether or not such person has
been properly nominated, elected
and installed according to the
applicable custom or usage. In
order to constitute a matter as
one affecting chieftaincy, it
must in my view, be the
determination of which, unless
overturned on appeal, would
settle once and for all a
chieftaincy matter or dispute”
By parity of reasoning, and
borrowing her Ladyship’s words,
it could be said, that the mere
fact that the question of
whether or not a person is a
chief rears its head in the
course of a suit at the High
Court does not necessarily
constitute the matter as one
affecting chieftaincy.
As can be seen in the instant
case, the suit was instituted
over a disputed piece of land
and the reliefs endorsed on the
writ were for a declaration of
title, damages for trespass and
perpetual injunction. It is
therefore difficult to
appreciate Appellant’s
contention that the suit had
morphed into a cause or matter
affecting chieftaincy.
2.
We also quote with approval the
Supreme Court decision of
In re Osu Stool; Ako Nortei II
(Mankralo of Osu) v Nortey Owuo
II (Intervener) [2005-2006]
SCGLR 628 @ 633 and
cited by Respondent in his
statement of case where Atuguba
JSC stated thus:
“The mere incidence of an issue
relating to chieftaincy in
proceedings in the ordinary
courts does not constitute it as
a cause or matter affecting
chieftaincy. Whether it is so or
not depends on whether on the
facts of the particular case, a
genuine cause or matter
affecting chieftaincy had
arisen… It must be stressed that
the action in the High Court, ab
initio, concerned matters
relating to landlord and tenant
and not to a cause or matter
affecting chieftaincy”.
From the above Supreme Court
decisions, it is quite clear
that, the crux of the matter
before the High Court, Agona
Swedru, was a simple,
straightforward land suit. It
was therefore quite unfortunate,
that the learned trial judge
allowed volumes of material on
whether the Plaintiff or his
predecessors were chiefs or not.
Trial Courts must be very
cautious in navigating their
paths when evidence is being led
by parties and witnesses before
them.
In the instant case, the learned
trial judge lost control and
direction in the case by
allowing so many irrelevant and
extraneous material to be led
into evidence before him.
Indeed, it is our belief that,
it is the reception of such
pieces of oral and documentary
evidence that was led that
emboldened learned Counsel for
the Appellants, Charles Hayibor
to take the learned trial judge
to task for stating and or
commenting as follows in the
judgment:
“I find as a fact that the
Plaintiff is the gazetted chief
of Awutu Ayensuako and has the
capacity to institute this
action.
From the gazette and the
Registrar’s evidence before me,
I hold that the Plaintiff is
properly installed as a chief in
accordance with the customs,
practices and usages of the
Awutu Bereku Traditional Area.”
We doubt that the trial judge
overstepped his boundaries when
he made the above pronouncement
based on the evidence before
him.
The Supreme Court speaking with
one voice stated In
Republic v National House of
Chiefs; ex parte Akrofa Krukoko
II (Enimil VI Interested Party
[2007-2008] SCGLR 173,
Sophia Adinyira JSC, reading the
unanimous verdict of the court
stated as follows:
“It is settled law that entries
made or deleted from the
National House of chiefs do not
constitute adjudication or
determination as to who is a
chief or who is not, but rather
a purely administrative act…
However, it is our considered
opinion that any name on the
National Register of chiefs
raises a presumption that the
bearer of that name on the said
register holds the title of a
chief or Queen mother of that
particular traditional area to
which the title relates or
emanates.”
On the whole, it would be
observed that, the determination
as to whether or not the
Respondent was a gazetted chief
of Awutu/Ayensuako did not add
anything substantial to the
resolution of the issues as to
whether the disputed land was
acquired by his ancestor or not.
In the final analysis, it was
the hard facts of overt acts of
ownership and possession coupled
with recent and contemporaneous
acts by their predecessors which
decided the issue of declaration
of title and the other reliefs
in favour of the Respondents.
Once the issue of chieftaincy
did not as it were, influence
the resolution of the dispute in
favour of the Respondents, it is
clear the Appellants must fail
on this ground of appeal.
Having thus restated the law on
what “cause or matter affecting
chieftaincy” means, appellants’
counsel’s nifty formulation of
this ground of appeal cannot
stand, thus, the first ground of
appeal fails.
The Judgment was against the
weight of evidence.
It is now trite learning that
where the appellant alleges that
the judgment is against the
weight of evidence, the
appellate court is under an
obligation to go through the
entire record to satisfy itself
that a party’s case was more
probable than not.
As was held by their Lordships
in Tuakwa v Bosom
[2001-2002] SCGLR 61,
“an appeal is by way of
re-hearing, particularly where
the Appellant alleges in his
notice of appeal that the
decision of the trial court is
against the weight of the
evidence… In such a case, it is
incumbent upon an appellate
court, in a civil case, to
analyse the entire record of
appeal, take into account the
testimonies and all documentary
evidence adduced at the trial
before arriving at its decision,
so as to satisfy itself that on
a balance of probabilities, the
conclusions of the trial judge
are reasonably or amply
supported by the evidence”.
Further Appellant has to
properly demonstrate what lapses
he is complaining about. See
Djin v Musah Baako[2007-2008]
SCGLR 686.
What then was the evidence led
at the trial which made the
appellant’s case less
believable? The Appellant had
averred that his ancestor,
Opanin Osimpo had jointly
purchased the land with Nana
Antwi I. Apart from this
averment, they did not lead any
further evidence on this.
Respondent on the other hand
tendered in evidence Exhibits A
and B, which were a receipt for
payment of the land and an
Indenture respectively,
executed in favour of Nana Kofi
Antwi.
Further evidence was also led to
show that the transaction took
place in 1929-30, by which time
Opanin Osimpo had died, having
passed in 1925.
All these pieces of evidence
weighed heavily in Respondent’s
favour and the Appellant was not
able to rebut it with any
conviction.
The Appellant again also raised
the issue of adverse possession
and contended that the trial
judge had glossed over this
important fact.
It is difficult to appreciate
Appellant’s contention as the
evidence led showed that indeed
at all material times
Co-Defendant Appellant had been
a licensee of Respondent and
each time it came to the notice
of Respondent that his ownership
status on the land was
threatened, fierce resistance
was put up against such threats.
Appellants have failed to lead
credible evidence to establish
the plea of adverse possession
they are relying on and the
trial judge and the court of
appeal were right in holding
that no case of adverse
possession had been established.
In the case of KWAKU v
SERWAH AND OTHERS [1993-94] 1
GLR 429-456,
Hayfron-Benjamin JSC held that
“It is trite learning that the
equitable doctrine of laches and
acquiescence is founded on
claims to adverse title. In my
respectful view, the class of
persons mentioned in learned
counsel's submissions which I
have quoted above are deemed to
know the true owner and
therefore cannot set up any
adverse title to the claims of
the family or stool. In the case
of Suleman v Johnson (1951)
13 WACA 213 at 215, Verity
Ag President observed:
"It is clear that when the
original owners have granted
rights of occupation to another,
the possession of the other is
not adverse possession and the
owner's acquiescence therein is
part and parcel of the grant and
cannot affect the owner's
reversionary rights. It is only,
therefore, when it comes to the
owner's knowledge that the
tenant has alienated or is
attempting to alienate the land
that the question of
acquiescence can arise. The
owner is not in possession, and
has indeed no right to
possession and is not concerned,
therefore, with the acts of the
tenant unless and until he
becomes aware that those acts
are inconsistent with and,
therefore, a denial of the
overlord's rights."
Having thus decided all the
grounds of appeal in favour of
the Respondent, it follows that
the entire appeal herein fails,
and is dismissed. The judgments
of the High Court, Agona Swedru
dated 7th day of June
2006, which was affirmed by the
Court of Appeal on 17th
April, 2008 are accordingly
confirmed.
JONES V.M DOTSE
JUSTICE OF THE SUPREME COURT
I agree:
G.T. WOOD (MRS)
CHIEF JUSTICE
I also agree:
ANIN YEBOAH
JUSTICE OF THE SUPREME COURT
I also agree:
P. BAFFOE-BONNIE
JUSTICE OF THE SUPREME COURT
COUNSEL
CHARLES HAYIBOR FOR THE
CO-DEFENDANT/APPELLANT/APPELLANT
AKWASI OPOKU FOR THE
PLAINTIFF/RESPONDENT/RESPONDENT |
