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J U DG M E N T
ANINAKWA JSC
This is an appeal against the
unanimous decision of the Court
of Appeal confirming the
decision of the trial High Court
in a claim for: -
“ 1) Declaration of Title
to ALL THAT PIECE OR PARCEL LAND
situate lying and being at Boi
near Abokobi Accra and
containing an approximate area
of 87.68 acres and surrounded on
all sides and completely by land
belonging to Boi Stool.
2) Perpetual injunction
restraining the Defendants their
agents and privies from entering
the said land
3) General damages”.
In a terse pleadings as
contained in his statement of
claim, the
Plaintiff/Appellant/Appellant
(hereinafter referred to as the
Plaintiff) describes himself as
the Mantse of Boi, a village
near Abokobi and the lawful
representative of the Stool of
Boi and brings this action for
himself and on behalf of the
Stool of Boi. Plaintiff alleges
that the Stool land of Boi
village covers an approximate
area of 543.92 acres.
The Plaintiff alleges further
that the
Defents/Respondents/Respondents
(hereinafter referred to as
Defendants) are inhabitants of
Abladzei another village also
near Abokobi and about three
miles away from Boi.
According to Plaintiff, the
Stool of Boi gave the Defendants
predecessors leave and licence
to farm on the Northeastern
portion of Boi land, which
licence the Defendants were
enjoying.
It is contention of the
Plaintiff that, notwithstanding
as aforesaid, recently
Defendants started alleging
title to the land on which they
were granted leave to farm and
have even extended their claim
to a greater portion of Boi
land.
The plaintiff maintains that the
Defendants’ conduct constitutes
trespass on his ancestral land
and consequently warned them off
but they persist in their act of
trespass.
Later
Co-Defendant/Respondents/Respondent
(hereinafter referred to as
Co-Defendant) Numo Nmashie
family of Teshie, through its
lawful head of family Nii Azaria
Adjei Klu, was made to join as
Co-Defendant.
By their very elaborate
Statements of Defence, Defendant
and Co-Defendant deny the
Plaintiffs claim. They maintain
that the land in dispute belong
to the Nii Ashong Lomotey family
of which the defendant are
members. The said land was a
subject of a customary grant
made to their said family by the
original owners Numo Nmashie
family, the Co-Defendant herein,
some two (200) hundred years
ago, and they have been in
possession ever since.
The Defendant and Co-Defendant
maintain and contend that the
two area in dispute forms part
and parcel of and contiguous to
a larger tract of village lands
belonging to the Numo Nmashie
family of Teshie and confirmed
by the Court of Appeal judgment,
in Civil Case No.49/80 entitled:
-
“In the matter of the State
Lands Act,
In the matter of land Acquired,
for the Ghana broadcasting
Corporation Television Station
at
Adjancote.
And
-
The Berekusuhene Twafohene
of Akwapim –Nana
Adu-Mireku Agyemang II,
Claimant - Respondent.
-
The Numo Nmashie represented
by Nii Azaria Adjei Klu,
Teshie- Claimant-
Appellant.
-
The Dowuona family, Osu,
represented by Mr. G.B.N.
Dowuona-
3rd
Claimant.
where the Court of Appeal after
appointing an independent
surveyor to map all the villages
of the Numo Nmashie family
descendants, and tendered
without objection thereto, held
that the Numo Nmashie family
were the proper persons entitled
to the payment of the
Compensation in respect thereof.
The Numo Nmashie family were by
the said judgment declared
owners of what has become known
as Adjancote Hill acquisition
land.
The Defendant and Co-Defendant,
therefore, set up the Defence of
estoppel per rem judicatem
against the Plaintiff.
The trial Court after a full
trial and exhaustive evaluation
of the evidence, concluded that
the Plaintiff has failed to
prove his claim and dismissed
the same. The Plaintiff being
dissatisfied with the judgment
of the trial Court appealed to
the Court of Appeal.
On 12th November
2004, the Court of Appeal
dismissed Plaintiff’s appeal, as
it could find no merits in any
of the grounds of Appeal.
Plaintiff is still not satisfied
with the decision of the two
lower courts, has appealed to
this Court on a number of
grounds i.e.
(a)
That the judgment of the Court
of Appeal is manifestly against
the weight of the evidence
before the Court.
(b)
The Court of Appeal failed to
legally consider that the land
in dispute forms part of Boi
Stool land and that the subjects
of the Boi Stool and their
grantees have been in possession
of the said land since time
immemorial.
(c)
The Court of Appeal failed to
legally consider that the land
in dispute was not included in
the judgment of the Court of
Appeal in Civil Appeal No 49/80
and that the Appellants are not
in any way estopped thereby.
Plaintiff intimated that he
would file additional grounds
when the Recorded of Appeal was
made ready to him. However none
was filed.
(a) Plaintiff’s claim is for a
declaration of title, perpetual
injunction, and damages for
trespass. He therefore, assumed
the burden of proof by the
preponderance of the
probabilities as required under
sections 11 and 12 of the
Evidence Decree, 1975 (N.R.C.D
323) in order to obtain judgment
in his favour. See the cases of
ADWUBEN V DOMFEH (1996-1997)
SCGLR. 660 per Acquah JSC (as he
then was) and TUAKWA V BOSOM
2001-2002 SCGLR. 61 per Sophia
Akuffo JSC.
In his submission in the
Statement of case, in support of
the grounds that the judgment of
the trial judge was manifestly
against the weight of the
evidence, Counsel conceded that
the case was fought on
traditional evidence, Counsel
however made scathing attacks on
the trial judge that in his
opinion the trial judge failed
to do a proper evaluation of the
evidence. That after the trial
judge had rightly concluded that
the evidence adduced by both
sides to establish the root of
their title was traditional, her
subsequent finding and
pronouncements thereon were all
not supported by the evidence.
Counsels contention that it was
wrong for a trial judge to
reject the story of the
Plaintiff on the ground that
there were contradictions in the
testimonies of the witnesses of
the plaintiff as to why the was
acquired by the Plaintiff
ancestors. Counsel for Plaintiff
admits that the trial judge
properly appreciated the
principle enunciated in Adjei bi
Kojo v Bonsie (1957) 3 WALR 257
at 260, but accuses her of
misinterpreting the same thereby
misapplying it in Plaintiff’s
case.
It is true in Adjei Kojo v
Bonsie supra Denning L.J.
provided a solution in a
situation where there was a
conflict of traditional history
and where one side or the other
might be making a mistake and
yet both might be honest in
their beliefs.
In the instant case, the
contradictions are not between
the parties. They are
contradictions between Plaintiff
and his witness.
In his evidence, the Plaintiff
gave the history of the
acquisition of the land in
dispute by his ancestors thus: -
“ Our ancestors came by vacant
land not belonging to anyone and
so each took as much as he could
farm”
The P.W.2,a member of the
Dowuona family, testifies as to
the mode
of acquisition thus: -
“ Dowuona fought a war and
acquired the land by conquest”.
This Court agrees with counsel
for Defendant that – the
principles laid down in the
decided cases relating to
traditional evidence presuppose
rival parties each basing his
claim on traditional evidence
and the trial Court being urged
to accept one of the several
pieces of traditional evidence
given by each rival party. In
choosing to accept the
traditional evidence of one
party against that of the others
the Court will then be guided by
the principles laid down in the
cases as YAW v ATTA (1961) GLR
513, and Adjeibi Kojo V Bonsie
supra. These principles would
not apply to the conflicts in
one party’s traditional
evidence. Conflict between a
party and his witness’s is a
serious contradiction conceded
by the Plaintiff himself.
In a situation of this nature,
the principle of law applicable
is different. See the case of
Atadi v Ladjekpo (1981
GLR.)
p 219 where Wiredu
JA
(as he then was) stated thus: -
“ whenever the testimony of a
party on a crucial issue was in
conflict with the testimony with
his own witness on that issue
(as in the case of the
Respondent in the instant case)
it was not open to a trial Court
to gloss over such a conflict to
make a specific findings on that
issue in favour of the party
whose case contained the
conflicting evidence on the
issue …”.And in OBENG V BEMPOMAA
– 1992-93 3GBLR p 1029 Lamptey
JA. (as he then was) remarked
“Inconsistencies, though
individually colourless, may
cumulatively discredit the claim
of the proponent of the
evidence. The conflict in the
evidence of Plaintiff and his
witnesses weakened the merit of
his case and proved fatal to his
claim.”
Clearly, counsel for Plaintiff’s
interpretation put on the
protection provided by Denning
L.J in Adjei bi Kojo v Bonsie’s
case is misconceived. His
wanton attack on the trial
judge is misplaced.
Counsel for Plaintiff reminds
this Court of its duty as an
appellate Court where there is a
plea that the decision of the
trial Court is against the
weight of the evidence. He
quotes the sentiment expressed
by Sophia Akuffo JSC, in Tuakwa
v
Bosom (supra) thus: -
“ An Appeal is by away of
rehearing, particularly where
the Appellant alleges in his
notice of the Appeal that the
decision of the trial Court is
against the weight of evidence.
In such a case, although it is
not the function of the
appellate Court to evaluate the
veracity or otherwise of any
witness, 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
upon the preponderance of the
probabilities, the conclusions
of the trial judge are
reasonably or amply supported by
evidence”.
In Odonkor and others V Amartei
– 1992-3 1GBLR 59 Hayfron
Benjamin JSC speaking on
appellate court and concurrent
findings of facts stated –
“ Concurrent findings not to
inhibit second Appellate Court
from adjudicating issues
according to evidence on record
– second appellate Court not to
review evidence where evidence
thoroughly sifted in Courts
below”.
It is conceded that the Court of
Appeal failed to go into the
evidence by way of rehearing.
Gbadegbe, JA delivering the
judgment of the Court admitted
that he did not consider the
grounds touching the weight of
the evidence, but after reading
the judgment of the trial Court,
he was persuaded that the trial
judge has not misdirected
herself in coming to the
conclusion that the Defendants’
case
was preferable to that of the
Plaintiff.
Infact, it is observed that the
trial judge had been very
charitable to the Plaintiff.
Virtually all the evidence led
by Plaintiff had not been
pleaded, yet they were allowed
inn. Since the same had not been
used against the Defendant, it
cannot be said that the same had
occasioned any miscarriage of
justice.
(b) “The Plaintiff’s next
ground of appeal reads thus:
-“The learned trial judge failed
to legally consider that the
land in dispute forms part of
Boi Stool land and that the said
Stool or grantees thereof have
been in possession of the said
land since time immemorial”.
Having concluded that the
findings of the trial Court are
supported by evidence on record,
the other grounds become
redundant. It will however, not
be a wasteful exercise if a few
words were put down in reaction
to Plaintiff’s submissions.
In support of this ground
Counsel for Plaintiff states
that there is a basic
misconception in the finding of
the trial Court and as affirmed
by the Court of Appeal regarding
the ownership of the land in
dispute.
He said the learned judge in her
judgment at page 209-210 of the
record rejected the evidence led
by the Plaintiff in support of
the recent acts of possession
and this position according to
the Court of Appeal was tenable.
Counsel finds it
incomprehensible that Plaintiff
having challenged Defendants and
Co-Defendants evidence that Boi
was a Teshie settlement, the
trial Court and Court of Appeal
could erroneously determine that
the Plaintiff and his subjects
were new comers on the land
having settled after the
decision of the Civil Appeal No.
49/80.
Plaintiff feels very much
offended by an alleged
description of the village of
Boi as of recent settlement. He
refers to paragraph 10 of
Defendants Amended statement of
Defence where Defendant claims
that one Boi, a brother of the
founder of the neighboring
village of Akporman, founded the
village of Boi and contends that
even the Defendants never
describe Boi as of recent
settlements.
Plaintiff, therefore, invites
this Court to reverse the
finding that Boi is of recent
settlement, that the subject of
the Boi Stool have occupied the
land subsequent to the Adjancote
Acquisition.
On the totality of the evidence
on record, Plaintiff cannot be
credited with any merits in this
ground of Appeal. Contrary to
the Plaintiff’s contention, the
trial judge fully considered the
ownership of the village of Boi.
Having dismissed the history of
the Plaintiff’s ancestor’s
acquisition of the land in
dispute which included the
village of Boi, and after the
trial judge, had exhaustively
evaluated the evidence on
record, the trial judge made the
following findings: -
“ I am of the opinion that the
plaintiff failed to establish
their claim. It is trite
learning, plaintiff seeking
title, the onus rest upon him to
prove his case”.
It is admitted that the trial
judge directed herself on the
law before the coming into
operation of the Evidence decree
1975 NRCD 323, the evidence on
record supports the post
Evidence decree era. No
miscarriage of justice
therefore, is occasioned.
The trial judges findings
continue thus: -
“ The evidence they led in
support of their recent acts of
occupation
and possession, I have
demonstrated is at best most
unreliable. If anything at all
recent evidence show that the
person who have been in
possession of the disputed land
are the Defendants. First there
is the definitive finding of the
Court of Appeal in Suit No.
49/80, that the Numo Nmashie
family, the Co-Defendant and the
Defendants grantors were at
least, in 1982, in occupation of
all the villages within the
vicinity of Adjancote Hill.
Secondly, the answers given by
the Plaintiff to a series of
questions put by the Defendants
Counsel confirm the fact that in
1983, Defendants were in
occupation of these lands.
(c) The last ground by the
Plaintiff is that: -
“ The learned judge failed to
legally consider that the land
in dispute is NOT included in
the judgment of the Court of
Appeal in Civil Appeal No. 49/80
and that Appellant is in no way
stopped thereby”.
In his Statement of case
supporting this grounds of
Appeal Counsel unprofessionally
attacks Counsel for both
Defendants and Co- Defendants
for “in their usual
characteristics manner managing
in their evidence and also in
their written submissions, to
get trial Court to hold that the
land in dispute is included in
the judgment of the Court of
Appeal No. 49/80, so that the
said judgment operated as
estoppel per rem judicatem
against Plaintiff”. This
statement coming from Counsel
and whatever meaning that can be
put on it is very unfortunate
indeed.
Now coming to the ground itself,
there is so much evidence on
record in support of the trial
judge’s findings on this issue
that the ground is rendered
unmeritorious. Not only did the
trial judge legally consider
that the land in dispute is
included in the judgment of the
Court of Appeal in Civil Appeal
No. 49/80, but also she stated
her findings clearly in the
judgment. And for proper
appreciation of her said
findings on this issue, the same
is quoted in extenso hereunder
thus: -
“ The next pertinent issue I
would like to deal with is the
issue (1) whether or not the
land in dispute is included in
the judgment of Civil Appeal No.
49/80, forms only part of the
land in dispute in this present
proceedings. The land in the
former is a hill acquired by the
government of Ghana for the
purpose of building a TV station
for our national Television
Corporation. It is therefore, a
much smaller area. But the
uncontroverted fact is that it
is included in the much larger
area – 87/68 acres- which the
Plaintiff claims in these
proceedings. This leads us to
the more serious issue of
estoppel per rem judicatem. It
is plain that the parties in
this present suit are the same
as parties in CA 49 /80, the
subject matter are not exactly
the same. However an important
issue of fact, which was
determined in favour of the
Defendant (Appellants) in those
proceedings is that “ they are
in possession of the land and
villages almost contiguous to
the acquired land as owners”. It
was upon this prove fact that
the Court reasonably concluded
that the are in possession of
the disputed land- Adjancote
hill, and consequently adjudged
them owners of the subject
matter. The importance of the
determination of the issue of
who owns “ land and villages
almost contiguous to the land as
owners can not be
overemphasized. Firstly, that
issue having once been
determined cannot be relitigated
in these present proceedings.
Indeed, a careful look at the
evidence shows this issue reared
its heard again in these
proceedings. The Plaintiff
sought to lead evidence (and
indeed that form the basis of
their Counsel’s argument) that
since a greater number of
settler farmers on the disputed
land hails from Boi, (they are
thirty one out of a total number
of forty two) the natural
influence is that they must be
owners of the subject matter.
But the Defendant put up a
contrary argument. They
maintained that these farmers
are
trespassers who encroached onto
the land after the dispute
arose. In my view, the finding
in CA 49/80 that Defendants
owned villages and land
contiguous to the disputed land
would operate as estoppel as far
as: -
(1)
The Adjancote Hill land is
concerned and
(2)
As far as the issues of who owns
the areas contiguous to the hill
(which areas is clearly in the
disputed land in these present
proceedings) are concerned”.
The trial judge cites the case
of Akim Akroso Stool v Akim
Manso Stool 1989-90 1 GLR 100 in
support of her findings.
The findings of the trial judge
alone should be enough to
dismiss the Plaintiff’s third
ground of Appeal. However, his
own answers to cross examination
questions render the ground most
unreasonable. In answering
questions from Defence Counsel
Plaintiff made the following
admissions at page 59 lines 26
to 32 of the record of
proceedings.
“Q. You agree with me that
the description you have given
of your land includes the land
Government acquired for the T.V.
Transmission.
A. Yes.
Q. You did say that land,
which belongs to your family, is
called Adjancote.
A. Adjancote
Q. Your family in these
suits before the Lands Tribunal
and Court of Appeal claimed the
land you are now claiming.
A.
I am here litigating over
the same land.”
On the matters as aforesaid
Plaintiff’s Appeal is hereby
dismissed.
The judgment of the Court of
Appeal is hereby affirmed.
R. T. ANINAKWAH
JUSTICE OF THE SUPREME COURT
S.A.B. AKUFFO(MS)
JUSTICE OF THE SUPREME COURT
DR. S. TWUM
JUSTICE OF THE SUPREME COURT
DR. S.K. DATE-BAH
JUSTICE OF THE SUPREME COURT
J. ANSAH
JUSTICE OF THE SUPREME COURT
COUNSEL:
Mr. Kwame Gyan for the
appellants.
Mr. T.A. Tagoe for the
respondents
M. Apatu-Plange for the
Co-respondent
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