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J U D G E M E N T
ANINAKWAH, J.S.C.:
This appeal is by the
Plaintiff/Respondent/Appellant
(hereafter referred to as the
plaintiff from the judgment of
the Court of Appeal dated the
15th day of June 2002 reversing
the Judgment of the High Court
Koforidua, dated the 25th day of
June 1998. The Defendant!
Appellants/Respondents shall
hereafter be referred to as 1st
and 2nd Defendants.
On or about
the 7th day of July 1988, the
plaintiff issued the writ of
summons at the Registry of the
Koforidua High Court, claiming
for:
(a) A declaration of
title to the land more
particularly described the
schedule hereunder.
(b) ¢5,000,000.00 -
General Damages for trespass
(c) An order of perpetual
injunction restraining the
Defendants,
Their agents/ servants and
privies from further entry unto
the Land.
The schedule heretofore referred
to being “ALL THAT PIECE OR
PARCEL OF LAND situate lying and
being at Senchi in the Akwarnu
Traditional Area and bounded on
the North by the Senchi Stool
Lands, on the South by the
properties of E. B. Otinkorang,
Daniel Tei, J. D. Awaitey, on
the East by the Volta River and
Abena Babla's property, and on
the West by the Senchi -
Atimpoku Motor Road.
The Writ of
Summons IS accompanied by a
statement of claim- the first
paragraph of which describes
plaintiff as the Son of the late
Opanin Kwame Amoaforo and brings
this action on his own behalf
and on behalf of his brothers
and sisters, the children of the
late Opanin Amoaforo.
The 1st Defendant is
the chief of Senchi while the
2nd Defendant is a native of
Senchi.
The Defendants through their
Solicitors filed their
appearance and statement of
Defence denying Plaintiff's
claims.
The
Plaintiff's case as gathered
from his pleading and evidence
at the trial is that his father
the late Opanin Kwame Amoaforo -
who in his lifetime lived at
Senchi in the Akwamu Traditional
area, hailed from Jekiti -
Akwamu aforesaid. His late
father died in 1962, survived by
five children including himself.
Plaintiff names his said
brothers and sisters as Kwaku
Agyekum, Kwadwo Sakyi, Sakyi
No.2 and Abena Adwoase.
In 1950, the plaintiff's father
with the active support of his
friends Opanin Dade Kofi and the
1st Defendant,
Chief/Mankrado of Senchi
acquired by purchase a piece and
parcel of land covering an area
of70.91 acres from one Isaac
Mensavi Dugbatey.
This Mensavi Dugbatey was a
citizen of Ada who had lived at
Senchi for .a long time and was
leaving for his hometown for
good and decided to sell his
land. The Mankrado of Senchi – 1st
Defendant herein and Opanin Dade
Kofi - a witness in this case
told Opanin Amoaforo of the
land. Opanin Amoaforo told them
he would buy the land but he
would first inform the
Traditional Council for their
approval. This was because as
Opanin Dade Kofi put it in his
supporting evidence, Mensah
Dugbatey was a stranger leaving
Senchi for his hometown, so
Opanin Amoaforo wanted to buy
the land publicly as he did not
want any shoddy deal. The Akwamu
State Council met and approved
of the sale. Among the elders
present at the State Council
meeting were Opanin Dade Kofi
and the Chief/Mankorado of
Senchi, the 1st
Defendant herein.
After the endorsement of the
sale by the State Council the
land was demarcated to Opanin
Amoaforo who bought it for £200.
Elders of Senchi including
Opanin Dade Kofi and the 1st
Defendant – Chief/Mankrado of
Senchi, witnessed the
demarcation.
Later a Deed of Conveyance was
executed between Issac Mensavi
Dugbatey and Opanin Kwame
Amoaforo to cover the sale
transaction.
The Omanhene of Akwamu
Traditional Area - Nana Kwafo
Akoto II and some of his elders,
endorsed the deed. After the
endorsement by the Omanhene,
same was stamped and registered
at the Land Registry in Accra
as Deeds Registry No.
2115/1960. The Registered deed
is in evidence as Exhibit ‘A’.
It is part of plaintiff’s case
that after his father had
purchased the land, the father
planted corn and oil palm
trees. He also granted portions
of the land to tenant formers on
tenancy basis. Plaintiff’s
father died in 1962, after
working on the land for 12
years. He was succeeded by his
nephew one Osei Kwaku who
continued from where his late
uncle had left off. He, too,
cultivated orn and yam. After
working on the land for
sometime, Osei Kwaku called the
plaintiff and his brothers and
sisters and told them that after
all the land belong to them and
that they should perform the
necessary custom for the formal
handing over of the land to
them. This statement was
repeated by P.W. 2 Elizabeth
Adwoa Amaoforo alias Adwoa
Adwoase – sister of the
plaintiff – in her unchallenged
evidence to support the gift by
Osei Kwaku formally gifted the
land to them. When plaintiff
and his brothers and sisters
were given possession of the
land they cultivated corn and
other food crops – until after
when Osei Kwaku died.
After Osei Kwaku’s death 1st
Defendant took over the land,
drove the children from the land
and cultivated Sugar Cane on it.
1st Defendant
destroyed all the crops, the oil
palm plantation and yam farms.
Some of the tenant farmers who
were given portions of the land
on sharing basis by plaintiff
and his brothers and sisters are
still on the land.
According to plaintiff, 1st
Defendant has now sold the land
to 2nd Defendant who
has planted mango, plantain and
other crops on it and has also
built a house on a part.
The plaintiff denies that the
Defendants have any title to the
disputed land. Plaintiff's case
is strongly corroborated by
firstly, the evidence of P. W. 1
- Opanin Dade Kofi, as to the
acquisition of the land by
plaintiff's father and secondly
the evidence of P. W. 2 - sister
to the plaintiff - Concerning
the gift of the land to them by
their father's nephew Osei
Kwaku, and also as to
plaintiff's capacity to
institute the action on behalf
of his brothers and sisters.
1st Defendant denies
Plaintiff's claim that their
father was the owner of the land
in dispute. He denies also that
he had anything or at all to do
with the alleged acquisition by
purchase or otherwise of the
land in dispute by the late
Opanin Amoaforo- plaintiff's
father. It is his case that he
became owner of Senchi lands
when he was made Chief/Mankrado
of Senchi. He says he knows the
land in dispute but mentions
boundary owners, who are
completely different from those
given by the plaintiff.
He admits being on the land in
dispute to the extent that he
has even given portions to
tenant farmers including 2nd
Defendant who have cultivated
Sugar Cane and other food crops
on the land. Save as he admits
virtually all allegations of
trespass made against him, he
denies all evidence of
acquisition of the land in
dispute made by plaintiff and
his witnesses.
1st Defendant rejects
completely the existence of any
document purporting to transfer
interest in the land in dispute
and says that if any such
document existed same would be
null and void, and could not
pass any interest to plaintiff’s
father.
2nd Defendant does
not claim personal ownership of
the land, but says that he
acquired where he is farming
from the 1st
Defendant in his capacity as the
Mankrado/chief of Senchi. He
admits that Dugbatey sold land
to Opanin Kwame Amoaforo, but
says that the said land was at
the Kotokoli Zongo.
1st Defendant's claim
to ownership of Senchi lands,
which he says is as a result of
becoming the Chief/Mankrado of
Senchi, cannot be free from
attack. The customary Law
principle has always been that
in traditional or orthodox
customary Law land belongs to a
stool or family. The interest of
the stool is not proprietary but
jurisdictional.
Assuming the land in dispute in
the instant case forms part of 1st
Defendant's stool land, which is
denied, 1st Defendant's claim
would be subject to the interest
of the subjects and other
individuals legally on the land.
There is also evidence on record
that Senchi lands enjoy multiple
ownership i.e. Mankrado/Chief of
Senchi, the Kotropehene who is
the Nifahene of Akwamu
Traditional Area and the Asebu
family of Senchi.
The learned High Court Judge
heard and considered the
evidence and gave judgment for
the Plaintiff. In her judgment,
the learned High Court Judge
made the following findings
after exhaustively evaluating
the evidence, which is
overwhelming.
" At the
hearing of the case the
Defendants and their witnesses
were not impressive at all. In
my opinion the stand they took
was simply to deny flatly
everything that the Plaintiff
said. As a result they were very
confused in their presentation
and their counsel found it
difficult to elicit simple facts
or evidence he wanted to support
their case. From their demeanor
and the way answers were
extracted from them we have no
option but to disbelieve them.
Weighing the evidence led by the
plaintiff as against that led by
Defendants. We find that of the
plaintiff to be the truth. "
The learned High Court Judge
then went on to deliver her
judgment thus;
"On the totality of the
evidence, the plaintiff has been
able to establish his case that
their father Opanin Amoaforo
bought the land in dispute by
customary sale, and the land was
demarcated for him; it was later
covered by a deed of conveyance
and that their father took
possession of it, and after
their father's death the land
was gifted to them by his nephew
and customary successor and they
also took possession of it until
the Defendants disturbed them.
We accordingly enter judgment in
favor of the Plaintiff for all
his reliefs. We hereby make a
declaration of title in favor of
the plaintiff and other children
of the late Opanin Kwame
Amoaforo in respect of the land
at Senchi particularly described
in the schedule in their writ of
summons".
Aggrieved by that decision the
Defendants appealed to the Court
of Appeal. The Defendants appeal
to the Court of Appeal was
allowed. Their Lordships
reversed the decision of the
learned High Court Judge and in
addition also found: - Per K.
Omari Sasu JA - reading the
judgment of the Court - " It is
my candid view that the
Respondent failed to discharge
his evidential burden to prove
title. He also had no capacity
to sue and was therefore not
entitled to a declaration of
title and the other reliefs
granted.
"
The plaintiff is aggrieved by
the judgment of the Court of
Appeal and has appealed to this
Court originally on two grounds
thus:
a) That the court of
Appeal was wrong in holding that
plaintiff/Respondent/ Appellant
had no capacity to give (sic)
the
Defendant/appellants/Respondents.
b) The court of appeal
failed to consider the
submissions of the Plaintiff/
Respondent/Appellant.
Later Plaintiff filed additional
ground which was argued with the
leave of the Court thus:- "The
Court of Appeal erred in
invalidating Exhibit "A" on the
ground that the Appellant failed
to call the stool occupant or
any of the principal members of
the Stool to testify on behalf
of the Appellant. "
It is pertinent at this stage to
re-examine the grounds filed by
the Appellants to support their
appeal at the Court of Appeal in
the light of the Court of
Appeal's reference to the
plaintiff s capacity and in fact
basing their judgment on it.
At the Court of Appeal, the
Defendants filed the following
original grounds
thus:
(a) The judgment is
against the weight of evidence.
(b) The judge failed to
consider the case of the
Defendant.
"
The Supreme Court per Acquah
J.S.C. (as he then was) in the
case of Koglex Ltd (No.2) v
field - 2000 SCGLR at page 184
held thus: - "Briefly, the
primary duty of an appellate
court in respect of a judgment
based on findings of facts is to
examine the record of
proceedings to satisfy itself
that the said findings are
supported by evidence on record.
Where there is no such evidence,
that findings ought to be set
aside. However, where such
findings of the trial court are
based solely on the demeanor and
credibility of the witnesses,
then the trial court that had
the opportunity of seeing and
hearing the witnesses, is in a
decidedly better position than
the appellate court. And
therefore the appellate court
should be extremely slow in
interfering with such findings.
"
The learned Judge quoted with
approval the observations of
Ollennu JA in this regard in the
case of Kyiafi v Wono (1967) GLR
463 at 466 thus:- "The
question of impressiveness or
convincingness are products of
credibility; a court becomes
convinced or unconvinced,
impressed or unimpressed with
oral evidence according to the
opinion it forms of the veracity
of witnesses. That being so the
Court of first instance is in
decidedly better position than
the appellate Court. "
In the instance case, the
findings of the Learned High
Court Judge are based of facts,
demeanor and credibility; and it
seems to me that their Lordships
at the Court of Appeal are
guilty of the caution imposed on
them. For in reserving the
decision of the learned High
Court Judge, Their Lordship were
obliged to satisfy themselves
that the findings are clearly
unsupported by the evidence on
record or that the reasons in
support of the findings are
unsatisfactory.
This, however, cannot be the
case in the instant case, for
the trial Judge painstakingly
reviewed the evidence and
supported every finding she
made.
We cannot, respectfully agree
with their Lordships attack on
Exhibit A. In their judgment,
Their Lordships state "The
property was said to be Senchi
stool property before it came to
the possession of Dugbatey yet
no stool occupant of Senchi
signed Exhibit A. The question
then is who gave or "sold" the
land to Dugbatey before he came
to sell it to late Amoaforo? The
record does not provide an
answer. The 1st Appellant is
said to have witnessed the
alleged sale of the disputed
property to Amoaforo but he
denies this and an examination
of Exhibit A shows that 1st
Appellant had nothing to do with
the transaction."
The answer to this attack is
contained in one of the findings
of the trial judge thus;- " We
find as a fact that Exhibit "A"
an indenture in writing
confirming the said customary
sale made in 1950 between the
same parties. The fact that the
1st Defendant as
Mankrado of Senchi did not sign
the indenture, does not
invalidate the deed, as the land
was not his to give out but
Dugbatey's. Even from P.W.1's
evidence, which was not
challenged, Dugbatey's land is
part of the stool land of the
Nifahene. Indeed as pointed out
by Counsel for the Defendants in
his address the Nifahene applied
to join this action as
Co-Defendant claiming the land
to be part of Nifa Stool land.
The Nifahene however did not
pursue the matter for reasons
best known to him alone. P.W.1
in his evidence said the
Nifahene did not sign the
indenture, as the Nifa stool was
vacant then. In any case the
endorsement of , the indenture
Exhibit "A" by the overall
landlord of Akwamu lands, Nana
Kwafo Akoto the Omanhene of
Akwamu and witnessed by Bamuhene
and the State Secretary is
sufficient evidence that the
sale of Senchi land by a
stranger was done with the
consent and concurrence of the
Akwamu State Counsel. "
In our respectful view, the
indenture Exhibit "A" satisfies
the provisions of Sec.25 (i) of
the Evidence Decree, 1975 (NRCD
323) which states - "Except as
otherwise provided by law,
including a rule of equity, the
facts recited in a written
document are conclusively
presumed to be true as between
the successors in interest."
Finally, the original ground (a)
"That the Court of Appeal was
wrong in holding that the
Plaintiff/ Respondent/Appellant
had no capacity to sure (sic)
the Defendant/
Appellant/Respondents. "
In their judgment, their
Lordships of the Court of Appeal
per Omari Sasu J.A. states
thus;- '" The Appellants contend
that even if late Amoaforo had
bought the land (which is
denied) on his death intestate
the land would become the
property of Amoaforo's family at
Jakiti and thus the customary
successor had no right of his
own to gift the land to
Respondent and his brothers and
sisters, without the consent
of Amoaforo's family and his
elders (emphasis mine) "His
Lordship goes on to state –
"Since on the death intestate
of late Amoaforo his family had
appointed his nephew Osei as
Customary Successor, the land in
dispute if it belonged to late
Amoaforo had become his family
property. The Head and principal
members must have approved of
the gift and the Acceptance must
have been followed by " Aseda "
which should have been given to
the family publicly and not to
Osei privately. " His Lordship
supports this statement of the
Customary Law with a host of
authorities.
In his opinion in support of the
judgment of the Court,
Amonoo-Monney JA ;- quoting from
the statement of case filed by
the appellants at the Court of
Appeal has this to say ;- " I
will refer to only one
additional ground namely, that"
The learned Judge erred in law
by her finding for the Plaintiff
that a customary gift inter
vivos of the over 70 (Seventy)
acres disputed land was proved
to have passed title to
plaintiff and his siblings when
the only evidence adduced before
the Court was that the said gift
inter vivos of the self-acquired
property of an intestate
deceased member of matrilineal
family was made to plaintiff and
his siblings (the deceased's
children) solely by the
Customary Successor. all by
himself without any publicity
whatsoever and more importantly.
without the knowledge. consent.
and involvement and concurrence
of the Abusuapayin (Head of
Family) AND/or the other members
of that matrilineal lineage
(emphasis mine) supposed to
have been directly and adversely
affected by the purported
transfer and alienation of the
70-acre land to the children (ie
the plaintiff and his siblings)
who were not members of the
matrilineal family."
His Lordship was prepared to
dismiss and / or disallow almost
all the additional grounds of
appeal and certainly the one
referred to above for sinning
against rule 8 (5) of the Court
of Appeal Rules (C.I. 19) whish
states that" The grounds of
appeal shall be set out
concisely and under distinct
heads the grounds upon which the
appellant intends to rely at the
hearing of the appeal without
any argument or. narrative and
shall be numbered consecutively"
All the same His Lordship
proceeds to consider his
additional ground and states
thus; - "The
Plaintiff/Respondent's father,
Opanin Kwame Amoaforo, is said
to have died in 1962 and there
is no evidence that his
customary successor Kwaku Osei,
was also Head of Opanin Kwame
Amoaforo' s family. Whether
customary successor or even as
Head of family, Opanin
Amoaforo's self-acquired
property on his death intestate
did not devolve on his Kwaku
Osei. Therefore even assuming,
once again, that Opanin
Amoaforo's title was valid,
Kwaku Osei did not acquire any
title to the property which
personally or by himself, he
could effectively, validly, and
lawfully transfer to anybody, be
he even a son of the deceased.
The late Amoaforo, by the
evidence, hailed from Jakiti and
if his nephew was his customary
successor then he belonged to
the matrilineal family". Based
these reasons His Lordship
agreed that the appeal be
allowed. There is certainly no
reason to challenge their
Lordships statement of the
customary Law, but what cannot
be the same is that, with the
greatest respect, these pieces
of evidence as stated by their
Lordships are not borne out of
the evidence.
What is in evidence is the
unchallenged evidence of
Plaintiff and his witness P.W. 2
The Plaintiff in his evidence
states;- "Kwaku Osei succeeded
my father. He was my father's
nephew.
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During Kwaku Osei' s lifetime he
called us the children and
gifted the land to us. "
Plaintiff s evidence is
corroborated by a more elaborate
evidence of his sister P.W. 2
thus;
" My father died in 1962. He was
succeeded by Opanin Kwaku Osei
who also planted palm trees and
other food crops on the land.
Opanin Kwaku Osei called us and
told us that the land was for
us, so we should perform the
necessary custom for him to give
the land to us formally. So we
bought a sheep and a bottle of
Schnapps and presented to him
and he formally gave the land to
us.
Opanin Osei called me and my
brothers and sisters and made
the gift to us. After the gift,
we offered Aseda "
These pieces of evidence are not
challenged, and what is admitted
requires no proof.
Again there is no evidence on
record that since the gift was
made there has ever been any
objection raised by any member
of the late Opanin Kwaku
Amoaforo's family.
When P. W. 2. stated that the
land was formally handed over to
them, in our view, the only
logical inference that could be
made was that the gift had been
customarily made.
The challenge to Plaintiff s
capacity does not end there. It
is also a challenge to the
status of the land in dispute.
It, therefore, assumes an issue
of mixed fact and law, which
required to be pleaded, but this
was not done. And as stated by
Counsel for Plaintiff in his
Statement of Case supporting the
Appeal - " It is significant to
note that neither in the
pleadings nor the evidence in
the Court below was the question
of Appellant's capacity to sue
raised except on Appeal in the
Court of Appeal. "
Rule 8 (8) of C. I. 19 Court of
Appeal Rules 1997 permits the
Court in deciding the appeal not
to confine itself to the grounds
set out by the appellant but in
so doing the court shall not
rest its decision on any ground
not set out by the appellant
unless the respondent has had
sufficient opportunity of
contesting on that ground. The
Plaintiff contends that he was
not given the benefit of this
rule.
Finally, counsel for plaintiff
submits in his statement of case
thus;
" It is also submitted that the
issue of capacity would have
been more meaningful if the
issue had perhaps been raised by
the family members of the late
Opanin Kwaku Amoaforo (sic) but
not total strangers who are not
aware of the arrangements within
the family.
In sum it is submitted that the
issue of capacity of the
appellant to sue is ill-
found." (Sic) This is a
submission we fully endorse, and
on the matters aforesaid the
appeal should be allowed.
Judgment of the Appeal Court is
hereby set aside. The Judgment
of the trial High Court should
be restored.
R. T.
ANINAKWAH
JUSTICE OF
THE SUPREME COURT
S.A.B.
AKUFFO (MS)
JUSTICE OF
THE SUPREME COURT
G.T. WOOD
(MRS)
JUSTICE OF
THE SUPREME COURT
DR. S.
TWUM
JUSTICE OF
THE SUPREME COURT
J. ANSAH
JUSTICE OF
THE SUPREME COURT
COUNSEL:
Mr. E. Narh
for Appellant.
Mr. Bob
Senyalah for Respondent.
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