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Land -
Customary law free hold title -
Usufractuary interest -
Declaration of title - Recovery
of possession - Perpetual
injunction -
General Damages for trespass –
Costs - Root of title – lease –
Res judicata - Non-compliance
with the rules - Forgery and
fraud - Whether or not the
parties have a common grantor -
Whether or not the
Plaintiff’s failed to prove that
case - Rules 6(4) of the Supreme
Court Rules 1996 (C.I.16) -
article 11(7) of the
Constitution 1992
HEADNOTES
Appellants as respective heads
of their families sued the
Respondent for
declaration of title of all that
piece and parcel of land at
South Nmai Dzovn in the Greater
Accra Region covering an
approximate area of 132.25
acres, the Appellants asserted
that their root of title was
ancestral, having acquired the
land by virtue of the settlement
of their great grandfather forty
years after the Katamanso war in
1866 and have been in
uninterrupted possession since
then. They further assert to
having obtained a confirmatory
grant of their parcel from the
Nungua Stool in 1993 by virtue
of a lease dated May 9, 1993.
The Respondent on the other hand
asserted in its statement of
defence that it has been in
lawful possession of the
disputed land since 1994 by
virtue of a grant from the same
Nungua Stool which conveyance
received statutory confirmation
by the Lands Commission by the
issue in its favour Land
Certificate in accordance with
the Land Title Registration Act,
1986 (PNDCL 152) The Respondent
denied the allegation of
trespass by the Appellants but
asserted that there being no
earlier conveyance by their
common grantor of the subject
matter, the document relied upon
by the Appellants i.e. Exhibit
‘A’ never existed as of the date
it was purported to have been
created. The Respondent alleged
that the Appellants have
backdated the said Exhibit ‘A’
in order to establish a
fraudulent claim to the land in
dispute. At the end of the
trial, the Trial Court found for
the Appellants having accepted
the Appellants’ testimony as
holders of a usufructuary
interest by virtue of the
settlement of their great
grandfather from time immemorial
and being subjects of the Nungua
Stool and proceeded to grant all
the reliefs sought by the
Appellants as per the
endorsement in the writ and
statement of claim On appeal to
the Court of Appeal, upon a
re-evaluation of the evidence on
record the Court of Appeal
concluded that the Appellants’
lease, Exhibit ‘A’, asserted by
the Appellants as confirmatory
of their usufructuary interest
could not have been executed in
1993. The Court of Appeal
further held that, the claim of
the Appellants of ancestral
settlement on the subject matter
by their great grandfather by
which they claim usufructuary
rights thereof had not been
proved and since the evidence
that the Nungua Stool only
started executing documents in
1996, The Court of Appeal thus
reversed the judgment of the
Trial Court and entered judgment
for the Respondent.
HELD
In our view therefore, the Court
of Appeal correctly applied this
settled principles of law
guiding the attitude to the
Trial Court’s primary findings
of facts and conclusions which
were inconsistent with the facts
and evidence adduced. In the
instant case, the Trial Court
not only misapprehended the
drift of the evidence in its
evaluation but erroneously
misconstrued the legal effect of
Exhibit ‘A’. The law is that a
Plaintiff must succeed on the
strength of his own case and not
on the weakness of the defence.
Where a Plaintiff’s evidence is
unsatisfactory as is the case of
the Appellants in the instant
appeal, the judgment should be
in favour of the Defendant on
the ground that, it is the
Plaintiff who seeks relief who
carried the statutory burden to
prove that he is entitled to the
reliefs claimedHaving found no
error on the part of the Court
of Appeal after it had
reevaluated the evidence on
record and ascribed to it its
own probative value, the appeal
wholly fails and it is hereby
dismissed. The judgment of the
Court of Appeal is hereby
affirmed.
STATUTES REFERRED TO IN JUDGMENT
1992 Constitution
Supreme Court Rules 1996
(C.I.16)
Land Title Registration Act,
1986 (PNDCL 152)
CASES REFERRED TO IN JUDGMENT
Tuakwa Vs. Bosom [2001-2002]
SCGLR 61
Osei (Substituted by) Gilard Vs.
Korang [2013-2014]1 SCGLR 221
F.K.A Company Ltd. Vs. Nii Teiko
Okine (Substituted by Nii Tackie
Amoah VI) Civil Appeal
No.J4/1/2016 dated 13/4/2016
Nii Amon Kotie Vs. Asere Stool
[1961]1 GLR 493
Owusu Domena Vs. Amoah
[2015-2016] I SCGLR 790
Awuah Vs. Adeitutu [1987-88] GLR
191
Majolagbe Vs. Larbi [1959] GLR
190
Nyamekye Vs. Ansah [1989-90]2
GLR 152
Kusi & Kusi Vs. Bonsu [2010]
SCGLR 60
Abbey & Others Vs. Antwi [2010]
SCGLR 17
Nortey (No.2) Vs. African
Institute of Journalism and
Communication & others (No.2)
[2013-2014] 1 SCGLR 703
Brown Vs. Quarshigah [2003-2004]
SCGLR 930
Adjei Vs. Grumah [1982-83] GLR
985
Obeng Vs. Marfo [1962]1 GLR 157
Awuku Vs. Tetteh [2011]1 SCGLR
366
Odoi Vs. Hammond [1991]1 GLR 375
at 372 CA
Appeah Vs. Asamoah [2003-2004] I
SCGLR 226
Amuzu Vs. Oklikah [1998-99]
SCGLR 141
Okofoh Estates Ltd. Vs. Modern
Signs Ltd. [1996-97] SCGLR 233
Sasu Bamfo Vs. Sintim [2012] I
SCGLR 136
Effisah Vs. Ansah [2005-2006]
SCGLR 945
Fofie Vs. Zanyo [1992]2 GLR 475
Barclays Bank Ghana Ltd. Vs.
Sakari [1996-97]SCGLR 639
Frempong II Vs. Brempong 14 WACA
13,
In Re Ashalley Botwe Lands,
Adjetey Agbosu & Others Vs.
Kotey & Others [2003-2004] SCGLR
420
BOOKS REFERRED TO IN JUDGMENT
Ghana Land Law and Conveyancing
by
B.J da Roda and C.K. Lodoh
DELIVERING THE LEADING JUDGMENT
AMADU JSC:-
COUNSEL
ARCHIE DANSO FOR THE
PLAINTIFFS/RESPONDENTS/APPELLANTS.
BELINDA PWAMANG FOR THE
DEFENDANT/APPELLANT/RESPONDENT
AMADU JSC:-
(1)
In the High Court Accra, the
Plaintiffs/Respondents/Appellants
(hereinafter referred to as
‘Appellants’) obtained
judgment against the
Defendant/Appellant/Respondent
(hereinafter referred to as
‘Respondent’) for all the
reliefs endorsed in their
statement of claim. The Trial
Judge further ordered that the
registration of the subject
matter in dispute by the Land
Title Registry in the name of
the Respondent herein be
expunged from the records. On
appeal to the Court of Appeal,
the judgment of the High Court
was wholly reversed. It is the
judgment of the Court of Appeal
which is the subject matter of
the instant appeal.
(2)
The question for our decision in
this appeal therefore is which
of the two lower courts came to
the right conclusion on the
evidence placed before them in
the matter. This is because
whereas the Learned Trial Judge
accepted the case of the
Appellants on the strength of
the evidence before him, the
Learned Justices of the Court of
Appeal unanimously upon a
reevaluation of the entire
record, arrived at their own
finding that the Trial Judge
failed to appreciate that on the
preponderance of the totality of
the evidence the Appellants who
carried the burden of proof had
failed to discharge their
statutory burden.
(3)
In the circumstances, our duty
in the determination of this
appeal largely depends on our
own reevaluation of the record
of appeal by which we should
arrive at our own conclusion on
the evidence adduced by the
parties so as to justify where
appropriate an interference with
the decision of either of the
two lower courts when satisfied
from our consideration of the
totality of evidence that, one
of the verdicts was either
unreasonable, perverse or
unsupported by the evidence such
that appellate interference
would be authorized and
justified.
(4)
It is instructive to refer to
the decision of this court in
Tuakwa Vs. Bosom [2001-2002]
SCGLR 61 a classicus which
justifies the interference by
this court to set aside the
decisions of lower courts. In
her statement on the law which
authorizes the attitude of this
court Sophia Akuffo JSC (as
she then was) held in that
case that:-“After
reviewing the record, it was
therefore our conclusion that on
the preponderance of
probabilities, the judgment of
the Trial Judge in favour of the
Defendant i.e. the Respondent
was not supported by the
totality of the evidence and the
Court of Appeal erred in
confirming the same without any
scrutiny of the record”.
This position has been
reiterated in several subsequent
cases including Osei
(Substituted by) Gilard
Vs. Korang [2013-2014]1 SCGLR
221 at 226
to 227 where
Ansah JSC citing Tuakwa
Vs. Bosom (supra) with
approval, said:- “It is
trite learning that an appeal to
this court is by way of
rehearing and the appellate
court has the duty to study the
entire record to find whether or
not the judgment under appeal
was justified as supported by
the evidence on record. An
appellate court is entitled to
make up its mind on the facts
and draw inferences to the same
extent as the Trial Court could
do”.
(5)
Where therefore, upon a
reevaluation of the evidence of
the Trial Court, the findings
and conclusions of the said
court and for that matter the 1st
Appellate Court, may be reversed
where they are based on a wrong
proposition of the law or rules
of evidence, or where those
findings and/or conclusions are
inconsistent with the mass of
evidence on record such that
further appellate interference
is necessary.
(6)
BACKGROUND FACTS
By writ issued from the High
Court Accra issued on 15/9/2003
the Appellants as respective
heads of their families sued the
Respondent for:
(a)
A declaration of title of all
that piece and parcel of land
lying
and being at South Nmai Dzovn in
the Greater Accra Region
covering an approximate area of
132.25 acres bounded on the
North-West by Lessor’s Land
measuring 4.310 feet more or
less, on the North-East by
Lessor’s land measuring 6.998
feet more or less, on the
South-East by Lessor’s Land
measuring 2.100 feet more or
less, and on the South-West by
Lessor’s land measuring 3,500
feet more or less which piece of
land is more particularly
delineated on the site plan
attached.
(b)
Recovery of possession of all
that portion of Plaintiff’s
132.25 acres of land Defendant
has trespassed upon and
developing and transferring
without the Plaintiff’s family’s
knowledge, consent and approval.
(c)
Perpetual injunction to restrain
the Defendant, his agents,
assigns, privies and workmen and
anybody claiming through him
from entering, transferring and
or developing any portion of the
Plaintiff’s family parcel of
land measuring about 132.25
acres described above.
(d)
General Damages for trespass.
(e)
Costs”.
(7)
In their Statement of Claim, the
Appellants asserted that their
root of title was ancestral,
having acquired the land by
virtue of the settlement of
their great grandfather forty
years after the Katamanso war in
1866 and have been in
uninterrupted possession since
then. They further assert to
having obtained a confirmatory
grant of their parcel from the
Nungua Stool in 1993 by virtue
of a lease dated May 9, 1993.
(8)
The Respondent on the other hand
asserted in its statement of
defence that it has been in
lawful possession of the
disputed land since 1994 by
virtue of a grant from the same
Nungua Stool which conveyance
received statutory confirmation
by the Lands Commission by the
issue in its favour Land
Certificate in accordance with
the Land Title Registration Act,
1986 (PNDCL 152) The Respondent
denied the allegation of
trespass by the Appellants but
asserted that there being no
earlier conveyance by their
common grantor of the subject
matter, the document relied upon
by the Appellants i.e. Exhibit
‘A’ never existed as of the date
it was purported to have been
created. The Respondent alleged
that the Appellants have
backdated the said Exhibit ‘A’
in order to establish a
fraudulent claim to the land in
dispute.
(9)
At the end of the trial, the
Trial Court found for the
Appellants having accepted the
Appellants’ testimony as holders
of a usufructuary interest by
virtue of the settlement of
their great grandfather from
time immemorial and being
subjects of the Nungua Stool and
proceeded to grant all the
reliefs sought by the Appellants
as per the endorsement in the
writ and statement of claim.
(10)
APPEAL TO THE COURT OF APPEAL
On appeal to the Court of
Appeal, upon a reevaluation of
the evidence on record the Court
of Appeal concluded that the
Appellants’ lease, Exhibit ‘A’,
asserted by the Appellants as
confirmatory of their
usufructuary interest could not
have been executed in 1993. The
Court of Appeal further held
that, the claim of the
Appellants of ancestral
settlement on the subject matter
by their great grandfather by
which they claim usufructuary
rights thereof had not been
proved and since the evidence
that the Nungua Stool only
started executing documents in
1996, the credibility of Exhibit
‘A’ upon which the Appellants’
claim had been further anchored,
having been discredited and
tainted with forgery, the
Appellants could not hold any
interest in the subject matter
inconsistent with the
Respondent’s interest. The Court
of Appeal thus reversed the
judgment of the Trial Court and
entered judgment for the
Respondent.
(11)
APPEAL TO THE SUPREME COURT
By their notice of appeal to
this court, the Appellants have
set out the following grounds:-
“1. The judgment is against the
weight of evidence.
2. The Court of Appeal erred
in law in holding that the
parties have
a common
grantor when the Plaintiff’s
title was customary free
hold title.
3. The Court of Appeal erred
in law in holding that the
Plaintiff’s
failed to prove that
case.
4. The Court of Appeal erred in
law in relying on the evidence
of
the Defendant’s only
witness who had no actual
knowledge of
the matters he testified
to
5. The Court of Appeal erred in
holding that the Learned Trial
Judge’s conclusion on the
issue of Defendant’s Exhibit ‘1’
were
not borne out by the
evidence on record.
6. The Court of Appeal erred in
holding that Exhibit ‘A’ was
executed after 1994.
7. Further grounds could be
filed on receipt of the record”.
We need place on record that at
the time this appeal was heard
no further grounds had been
filed nor argued by the
Appellants.
(12)
PROPRIETY OF GROUNDS OF APPEAL,
Before we consider the grounds
of appeal filed and argued by
the parties to the appeal there
are crucial issues with respect
to the improper formulation of
grounds of appeal by the
Appellants which are in
contravention of the ground
rules of this court. This court
cannot overemphasize the
position it had stated severally
that, where grounds of appeal
are formulated in a manner
contrary to the mandatory rules
of court, they will not be
considered as proper grounds as
they are inadmissible and
unarguable because they are
incompetent. Akamba JSC in the
case of F.K.A Company Ltd.
Vs. Nii Teiko Okine (Substituted
by Nii Tackie Amoah VI)
Civil Appeal No.J4/1/2016 dated
13/4/2016 restated our position
in the following words:-
“It is important to state that
the adjudication process thrives
upon law which defines its scope
of operation. It is trite to
state for instance that, nobody
has an inherent right of
appeal. The appeal process is
the creature of law. Any
imitative within the context of
the adjudication process must be
guided by the appropriate,
relevant provision be it
substantive law or procedural
law. As courts, if we fail to
enforce compliance with the
rules of court, we would by the
lapse be enforcing the failure
of the adjudication process
which we have sworn by our
judicial oaths to uphold”.
In other words, the appellate
jurisdiction being statutory,
the power to adjudicate on any
appeal by allowing or dismissing
it, includes the power to
decline to adjudicate on the
merits where an appeal is not
properly before the court or
based on incompetent grounds.
(13)
It is provided in Rules 6(4) of
the Supreme Court Rules 1996
(C.I.16) as follows:-
“The grounds of appeal shall 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 seriatim; and
where a ground of appeal is one
of law the Appellant shall
indicate the stage of the
proceedings where it was first
raised”. From the
Appellants’ grounds of appeal,
grounds 2, 3, 4 allege errors of
law without setting out any
particulars of the error
alleged, nor the stage of the
proceedings it was first raised
in compliance of Rule 6(4) of
C.I.16 aforesaid. Grounds 5 and
6 allege errors simpliciter
without indicating to this court
and the Respondent how the error
alleged was occasioned. The said
grounds are therefore not only
in vague terms and but are
general in nature which
contravene Sub-rule 6(5) of
C.I.16.
(14)
It must be reiterated that,
rules of court are not mere
rules but subsidiary
legislations by virtue of
article 11(7) of the
Constitution 1992 and therefore
have the force of law. That is
why rules of court must be
respected and obeyed. When
there is non-compliance with the
rules especially those in
mandatory terms, the court
cannot remain passive and
condone same.There must be
sanctions, otherwise the purpose
of enacting those rules will be
defeated. In formulating
grounds of appeal which are
intended to comply with the
provisions of Rules 6(4) and (5)
of C.I.16, the grounds must
contain precise, clear
unequivocal and direct
statements of the decision
attacked. They must in other
words, give the exact
particulars of the mistake,
error or misdirection alleged.
As such, any ground of appeal
alleging error of law or
misdirection without
particulars, except an omnibus
ground, is defective and
incompetent and they are liable
to be struck out.
(15)
In the context of the instant
appeal, all but the omnibus
ground set out in ground one of
the notice of appeal fail the
mandatory test. They are
incompetent and therefore
unarguable. They are
accordingly struck out. Having
so ordered, it is observed that
all the impugned grounds are
founded upon the improper
evaluation of evidence and which
can be conveniently subsumed
under the only surviving ground
of appeal in that the judgment
is against the weight of
evidence. Consequently, the
Appellants are fortuitous as the
entire statement of case will be
considered as if the appeal is
anchored on one ground of appeal
which is on the question of
weight of evidence. In doing
so, we are mindful of the
decision of this court in the
case of Owusu Domena Vs.
Amoah [2015-2016] I SCGLR 790
in which this court held
that, where an appeal is based
on the sole ground of appeal
that the judgment is against the
weight of evidence, both factual
and legal matters arise for
consideration. Guided by this
practice therefore, we shall
examine any legal issues
articulated by the Appellants in
their statement of case in order
to determine the appeal on the
entire merits of the case of
either party to the appeal.
(16)
APPELLANTS’ STATEMENT OF CASE
In the judgment of the Court of
Appeal, there was a clear
departure from and reversal of
the findings and conclusions of
the High Court. Consequently,
the Court of Appeal substituted
its own findings with those of
the Trial Court and entered
judgment in favour of the
Respondent. The Court of
Appeal’s position is founded on
the following findings and
conclusions:-
i.
That the Respondent successfully
rebutted and contradicted the
Appellant’s claims of
acquisition and continuous
possession of the subject matter
in dispute as the Appellants
failed to adduce credible,
cogent and admissible evidence
that the subject matter was
vacant Stool land which was
subsequently granted to their
family by a lease in 1993.
ii.
The Trial Court failed to
evaluate the competing and
conflicting evidence of the
rival claimants with respect to
their possessory rights.
Therefore, there was nothing on
record to justify why the Trial
Court preferred the evidence of
the Appellants to that of the
Respondent. Thus, the findings
by the Trial Judge were perverse
as they were not consistent with
the totality of the evidence on
record.
iii.
The Court of Appeal found as
improbable the assertion of
uninterrupted possession and the
contention by the Appellants
that until they presented their
document to the Land Commission
for registration, they were not
aware that there had been prior
registration of the entire
parcel by the Respondent who had
thereafter transferred various
portions of the subject matter
to third parties.
iv.
That Exhibit ‘A’, the
confirmatory deed tendered by
the Appellants lacked
credibility as it was forged by
backdating same in order to
overreach the Respondent’s title
and possession which has been
properly documented.
v.
The issue of usufructuary
rights and the customary
interest relied upon by the
Appellants was not applicable as
the mass of evidence on record
pointedly show that the
Appellants’ family has no
interest whatsoever in the
subject matter having failed to
discharge their evidential
burden on same to warrant a
determination in their favour.
vi.
The plea of res judicata raised
by the Appellants against the
Respondent while relying on the
ruling of Asare Korang J.A dated
26th July 2002 in the case of
Isaac
B. Tawiah Vs. Hausbauer Ltd.
was not applicable to the facts
and issues for determination the
instant case.
(17)
APPELLANTS’ SUBMISSION IN
STATEMENT OF CASE
The Appellants have assailed the
judgment of the Court of Appeal
on the grounds set out in their
notice of appeal. As we have
earlier indicated, all the
grounds on which this appeal is
mounted will be compositely
discussed under one main ground
of appeal in that the judgment
is against the weight of
evidence. In arguing the
appeal, counsel for the
Appellants has drawn our
attention to the general
principle of law and rule
regulating appeals in this court
which confers on this court the
power of rehearing once an
Appellant pleads the omnibus
ground of appeal.
(18)
According to the Appellants in
setting aside the judgment of
the Trial Court, the Court of
Appeal erred in basing its
conclusion on three grounds.
First, the Appellants challenged
the conclusion of the Court of
Appeal that, they failed to
prove their case. The Appellants
recounted their ancestral
history and contended that,
contrary to the conclusion
arrived at by the Court of
Appeal, there was evidence on
record with respect to their
ancestral acquisition of a
customary freehold title of the
subject matter in dispute. The
Appellants contend further that
in accordance with customary
law, the subject of a stool or
members of a family have an
inherent right to occupy any
vacant Stool land for his use
and such acquisition assumes the
character of a holder of a
customary freehold title.
Relying on
B.J da
Roda and C.K. Lodoh in their
academic title: “Ghana
Land Law and Conveyancing”
and the Privy Council decision
in Nii
Amon Kotie Vs. Asere Stool
[1961]1 GLR 493
at 495 as well as the
case of
Awuah Vs. Adeitutu [1987-88]
GLR 191, the
Appellants submit that the
evidence of PW1 meets the
standard of evidence required in
the principle laid by the cases
cited and notwithstanding
that, the Court of Appeal still
found the evidence adduced by
the Appellants as unreliable to
support their case.
(19)
The Appellants further contend
that they held a
customary
law free hold title by
virtue of the settlement of
their ancestors and had relied
on witnesses who testified to
same. Consequently, having
satisfied the principle of law
of evidence in the
Majolagbe Vs. Larbi
[1959] GLR 190, the
Court of Appeal was wrong in
setting aside the findings and
conclusions of the Trial Court
founded on that evidence. The
Appellants submit that the
findings and conclusions of the
Trial Court were not perverse to
warrant the interference by the
Court of Appeal. It is
submitted further by the
Appellants that, as holders of a
customary law title, it stands
good against the whole world and
could not be defeated by a
subsequent registered title from
another source as argued by the
Respondent in the instant
appeal.
(20)
In concluding their submission,
the Appellants contend that
since on the totality of the
evidence before the court, the
Appellants’ family held a
usufractuary interest in the
land, the Nungua Stool could not
legally make a grant of the same
parcel to the Respondent. In
support of this contention, the
Appellants rely on the case of
Nyamekye Vs. Ansah
[1989-90]2 GLR 152.
They submit further that,
the issue of the respective
documents of the parties and
their authenticity is therefore
irrelevant.
(21)
Unless, we have misapprehended
the Appellants’ submission, they
appear to suggest that the
finding of forgery with respect
to Exhibit ‘A’ which they
tendered in order to prove their
interest as earlier in time
before the Respondent’s land
Certificate was issued in
November 1995 is irrelevant in
the instant appeal. If Exhibit
‘A’ was indeed irrelevant and
thus of no consequence to the
interest of the Appellants, why
did they procure it in the first
place? And indeed as the Court
of Appeal rightly deduced from
the attack on its credibility
mounted by the Respondent, why
was it backdated to appear as if
it is first in time before
Respondent’s Land Certificate
was issued. These matters shall
be exhaustively dealt with in
the course of this judgment when
the effect and consequence of
forgery
and fraud is discussed.
(22)
RESPONDENT’S SUBMISSION IN
STATEMENT OF CASE
The Respondent in support of the
judgment of the Court of Appeal
submits that the Appellants’
evidence in totality was a mere
repetition of the pleadings
which contained no evidence of
prior possession of the subject
matter by the Appellants. The
Respondent has referred to the
previous decisions of this court
in
Kusi & Kusi Vs. Bonsu [2010]
SCGLR 60 at 72 and Abbey
& Others Vs. Antwi [2010] SCGLR
17 at 23
where the principle of the
burden of proof was further
elucidated upon. The Respondent
contends that, whereas, it is
the Appellants who carried the
burden of proof, they failed to
successfully discharge same on
the preponderance of the
evidence. Their reliance on
Exhibit ‘A’ as a confirmatory
deed also failed the test of
credibility upon scrutiny by the
Court of Appeal. Consequently,
the two grounds on which the
Appellants claim were founded
being the ancestral acquisition,
occupation and possession as
well as the confirmation by the
Nungua Stool were found
respectively as unsubstantiated
and devoid of credibility.
(23)
In further attack on Exhibit ‘A’
the Appellants’ purported
confirmatory deed, the
Respondent has referred to the
holding No.(4) in the case of
Nortey
(No.2) Vs. African Institute Of
Journalism and Communication &
others (No.2) [2013-2014] 1
SCGLR 703 at 707
and has urged us to disregard
Exhibit ‘A’ as the site plan
which was intended to confirm
the size of land claimed by the
Appellants’ was neither signed
nor authorized by the Director
of Surveys or his
representative. The Respondent
submits that, not only did the
Appellants fail to prove their
ancestral acquisition, they also
failed to prove their claim of
continuous unchallenged
possession from time immemorial.
The Respondent prays that the
judgment of the Court of Appeal
ought not to be disturbed.
(24)
DETERMINATION OF THE APPEAL
Two key issues arise for
determination. Did the
Appellants sufficiently
discharge their statutory burden
of proof to entitle them to the
reliefs sought as the Trial
Court held, or that the Court of
Appeal was right in setting
aside the findings and
conclusions of the Trial Judge
and entered judgment for the
Respondent? From the evidence on
record, the basis on which the
Appellants mounted their action
for declaration of title and
other consequential reliefs is
contained in the evidence of the
2nd Plaintiff at
pages 26 to 28 of the record. In
that testimony, the Appellants
had testified that their family
originated from Borketey Laweh
who was the first to settle in
Nungua and traced his family
ancestral interest in the
subject matter from the period
of 40 years after Katamanso war
of 1866.
(25)
According to the 2nd
Appellant, upon the death of
their father in 1986, he and the
1st Appellant became
caretakers of the subject
matter. However, when in 1990
he noticed that some persons
were developing parts of the
land, they decided to prepare
land documents which they sent
to the elders of the Nungua
Stool whereupon Exhibit ‘A’ was
created and dated 9th
May 1993. The Respondent denied
these assertions which are
intended to demonstrate prior
possession of the subject matter
by the Appellants.
(26)
Notwithstanding the weakness of
the evidence of possession
proferred by the Appellants, the
Trial Judge was impressed and
without scrutinizing Exhibit ‘A’
in order to establish its
authenticity and probative value
in relation to the time it was
created and regularized, found
in favour of the Appellants and
granted all the of reliefs they
sought. The 1st
Appellate court found
otherwise. As the Court of
Appeal was entitled to analyze
the evidence and arrive at its
own findings and conclusions,
the Court of Appeal accepted the
grounds on which the Respondent
attacked the credibility of
Exhibit ‘A’ which it placed on
record as follows:-
“1. The date “9th
May 1993” was typed into the
documents Exhibit
‘A’ in a type face different
from the rest of the document.
Whereas the main body of the
document was typed using manual
type writer with carbon paper
the “9th May 1993”
was typed using an electronic
typewriter. This shows that the
date was typed at a different
time from the main document.
2. The commencement date of
the lease appearing at paragraph
1 of the document is clearly
made after some erasures and
cancellation. These have not
been authenticated by the
signatories to the document as
is legally required for
amendments and interlineations.
3. The document is
expressed to have been witnessed
by Nii
Abotsi Borlabi but he neither
signed nor thumprinted it.
4. The site plan is
undated.
5. The oath of proof is
dated 9th May 1987
and the document
itself is 1993”.
(27)
These observations by the Court
of Appeal clearly destroyed the
credibility of Exhibit ‘A’ and
ipso facto the
credibility of the proponents of
the evidence. Significantly in
this appeal, the Appellants
failed to contest the findings
of the Court of Appeal on the
very document on which they had
sought to anchor their case of
prior acquisition and
possession. In their statement
of case, the Appellants
significantly failed to contest
the findings of the Court of
Appeal with respect to Exhibit
‘A’ by simply stating that since
the Appellants’ family held a
usufructuary title in the
subject matter the Nungua Stool
could not grant same to the
Respondent, just as they
abandoned the issue of res
judicata raised against the
Respondent which the Court of
Appeal found to be inapplicable.
However, irrelevant as the
Appellants now contend the
respective documents of the
parties are, the Trial Judge
made a finding on Exhibit ‘A’
at page 129 of the record as
follows:- “…The grant as
in Exhibit ‘A’ is just evidence
of … usufructuary right. The
usufructuary interest is a right
acquired by virtue of the fact
that the usufruct is subject of
the stool or a member of the
family or clan. Exhibit ‘A’ in
the view of this court is just
evidence of the usufructuary
interest of the Plaintiff
whether made before or after the
grant of the Defendant…”
(28)
With all respect to the Learned
Trial Judge, the issue raised by
the Respondent with respect to
Exhibit ‘A’ which the Court of
Appeal upheld was not merely one
of dates and events but one of
bad faith and forgery on the
part of the Appellants who
procured Exhibit ‘A’ and
inserted particulars thereon
intended only for the purposes
of the litigation in order to
overreach the Respondent and
mislead the courts on the issue
of prior possession and
documentation. The Court of
Appeal cannot therefore be
faulted on the findings and
conclusions it arrived at with
respect to Exhibit ‘A’ and the
consequential effect on the
Appellants’ case.
(29)
Now, in the Appellants statement
of case, counsel for the
Appellants presented a case as
if, even as claimed the
Appellants that they are holders
of a customary freehold title,
that interest was indefeasible
and not impeachable by
subsequent conduct on the part
of the Appellants. As the Court
of Appeal rightly found, the
Appellants failed to adduce any
credible evidence of prior
possession as the pieces of
evidence they purported to
adduce did not pass the acid
test. Indeed, the Court of
Appeal found that, the
Appellants from the evidence
held no usufructuary interest in
the subject matter having failed
to prove that their great
grandfather had acquired the
land in dispute and that their
family had been and remained in
uninterrupted possession from
time immemorial. For, it is now
well settled that where title or
interest in land is derived by
either grant, sale, conquest or
inheritance etc., the pleadings
ought to aver facts relating to
the founding of the land in
dispute and the person or
persons who founded the land and
exercised original acts of
uninterrupted possession.
(30)
In the instant case, the
Appellants having pleaded that
their great grandfather founded
the disputed land through
settlement from time immemorial,
failed to produce evidence of
the intervening period during
which the Respondent lawfully
acquired interest from the
Nungua Stool from whom the
Appellants themselves sought a
confirmatory deed of a purported
customary free hold interest.
(31)
In the case of
Brown
Vs. Quarshigah [2003-2004] SCGLR
930, this court
reiterated the position of the
law that, customary law knows no
writing. It is the Appellants
themselves who opted to change
the status of their purported
interest into writing by
procuring Exhibit ‘A’ which
failed to pass the test of
credibility. With respect to
their claim to a customary
freehold title which the
Appellants have in their
statement of case urged us to
uphold as a prior in time and
which cannot be taken away by a
subsequent grant by the Nungua
Stool to the Respondent, the
position of the law as held by
the Court of Appeal in the case
of
Adjei Vs. Grumah [1982-83] GLR
985 at 988 is
that:- “The Principle of
customary law that a subject of
the stool acquires a
determinable or usufructuary
title in the stool land he
occupies does not apply to
virgin forest land on which he
expended no labour - Notice of
reentry to such areas may be
desirable but failure to do so
is not fatal nor can it defeat
the customary right of the stool
to reenter and reallocate virgin
forest land where there has been
a default in development (by the
customary freeholder)”.
(32)
With particular relevance to the
in the instant case, granted the
customary usufructuary interest
claimed by the Appellants were
credible, the evidence clearly
points to a situation of
abandonment of the interest. See
Obeng
Vs. Marfo [1962]1 GLR 157
where the then Supreme Court
in determining the effect of
land acquired by a Plaintiff
under customary law but was
abandoned after cultivating it
for forty (40) years held that:-
(1) the stool, having
become owner of the farm on its
abandonment, was able to make a
valid transfer of title
regardless of who originally
cultivated the farm”.
From the evidence, the
Appellants attempted to
establish their possessory
rights by evidence of some
farming activity through the
testimony of the 2nd
Appellant and PW1, who described
himself as the Chief of Nmaijor.
That evidence of possession was
vehemently rebutted by the
Respondent whose case has
consistently been that, at the
time it acquired its interest in
the subject matter, there was
nothing on the land to indicate
any prior interest by any person
including the Appellants.
(33)
The situation of the Appellants
in our view is at best one of
abandonment if at all they held
any customary interest as they
claimed. Thus, besides the
failure to establish on the
preponderance of the evidence
that their presumed customary
freehold title was never
abandoned and therefore the
Nungua Stool could not convey
any portion of the land to the
Respondents, the Appellants
attempt to prove their case by
the use of Exhibit ‘A’ also
failed to pass the test of
credibility and thus offered no
value at all to the entire
testimony of the Appellants. In
paragraphs 9 and 10 of the
Appellants statement of claim
(page 4 of the record), the
Appellants pleaded as follows:-
“9. The Plaintiffs say that
sometime in 1993, they
approached the
Nungua Stool to ask for a formal
conveyance to confirm the
customary title of the
Plaintiff’s family.
10. The Plaintiffs say that
by a lease dated May 9th
1993, the
Nungua Stool confirmed the
title, right and interest of the
Plaintiff’s family in the said
land”.
(34)
From a careful examination of
Exhibit ‘A’ the purported
confirmatory deed referred to in
Appellants’ pleadings
aforementioned, the recitals do
not confirm any prior customary
interest held by the Appellants’
family in the subject matter.
Thus, even if Exhibit ‘A’ were
to pass the test of credibility
which the Court of Appeal found
it did not, the Appellants’
claim of a preexisting customary
interest earlier in time before
the Respondent acquired its
interest from the Nungua Stool
and subsequent certification
thereof is therefore without
foundation as the purported
confirmatory deed not only
lacked credibility but it
confirmed nothing.
(35)
In
Awuku Vs. Tetteh [2011]1 SCGLR
366 this court held per
holding (1) as follows:-
“In an action for a declaration
of title to land, the onus was
heavily on the Plaintiff to
prove his case; he could not
rely on the weakness of the
Defendant’s case. For a Stool
or family to succeed in an
action for 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. (Odoi
Vs. Hammond [1991]1 GLR 375 at
372 CA
applied)”.
In all these material respects,
based on the evidence on record,
the Appellants failed to prove
their claim. The Court of Appeal
was therefore not in error when
upon a reevaluation of the
totality of the evidence and
application of the relevant law,
it reversed the judgment of the
Trial High Court and entered
judgment in favour of the
Respondent.
(36)
In the instant case, once the
Court of Appeal arrived at the
conclusion upon the examination
of Exhibit ‘A’ that it is
tainted with forgery of
particulars, the judgment
obtained by the Appellants which
was founded on evidence
including Exhibit ‘A’ was
correctly set aside. We take
notice that in the Respondent’s
pleadings at the Trial Court
neither fraud nor forgery was
pleaded nor particularized.
Indeed the propriety of Exhibit
‘A’ was not even settled as an
issue for determination at the
trial. However, in
Appeah
Vs. Asamoah [2003-2004] I SCGLR
226 this court held
that:- “fraud will vitiate
everything. And ordinarily
fraud should be pleaded. It had
not been pleaded in the instant
case. Notwithstanding the rules
on pleading, the law was that
where there was clear evidence
of fraud on the face of the
record, the court could not
ignore it…” In the
above case, this court cited
with approval the case of
Amuzu
Vs. Oklikah [1998-99] SCGLR 141
where Brobbey JSC said:
“Ordinarily, fraud should be
pleaded. It was not pleaded in
the instant case.
Notwithstanding the rules on
pleading, the law is that where
there is a clear evidence of
fraud on the face of the record
the court cannot ignore it. That
was the decision of this court
in Amuzu Vs.
Oklikah [1998-99] SCGLR 141. In
that case, fraud was not pleaded
but when it was raised, it was
upheld by the Trial Court and in
the Supreme Court. In the same
way, failure to plead the issue
of fraud at the Trial Court did
not prevent the Trial Court and
this court from endorsing it
when it was raised. Indeed
fraud vitiates everything. A
relevant statement on that will
be found in
Okofoh
Estates Ltd. Vs. Modern Signs
Ltd. [1996-97] SCGLR 233 at
253 reads:- “An
allegation of fraud goes to the
root of every transaction. A
judgment obtained by fraud
passes no right under it and so
does a forged document obtained
by fraud pass no right”.
(37)
On the same subject of forgery
and consequential fraud, in
Sasu
Bamfo Vs. Sintim [2012] I SCGLR
136 at 151 this
court unanimously said:-
“We have carefully perused,
examined and scrutinized the
totality of the evidence in the
record of appeal and we have no
doubt in my mind that Exhibit
‘A’ is a forged and fraudulent
document. This finding is amply
supported on the face of Exhibit
‘A’…Admittedly, the Defendant
failed to prove any of the
particulars of forgery or fraud
as pleaded but if after
evaluating and scrutinizing the
whole of the evidence including
documents exhibited, there was
evidence of fraud, the appellate
court i.e., Court of Appeal
could draw its own inference
from the evidence and was in
that regard in the same position
as the Trial Court, rightly
found that Exhibit ‘A’ was
fraudulent”.
(38)
By the same parity of reasoning
therefore, in the instant case,
notwithstanding the fact that
the Respondent did not plead
fraud, as was patently
discovered and placed on record
by the Court of Appeal, the
finding of forgery which is
apparent on the face of Exhibit
‘A’ intended to overreach the
Respondent could not be
ignored. The Court of Appeal
cannot be faulted for the
finding on same. That barge of
fraud on Exhibit ‘A’ on which
particulars were clearly forged
tainted the case of Appellants
and irredeemably damaged it.
(39)
The attitude of the appellate
court to primary findings and
conclusions of a Trial Court has
been stated in a number of rich
line of judicial decisions. In
summary the intervention of the
appellate court will arise in
the following circumstances;
where the primary judge’s
conclusion was wrong or
inconsistent as demonstrated by
incontrovertible facts or
uncontested testimony; where the
conclusion was based on evidence
wrongly admitted occasioning a
substantial miscarriage of
justice; where the reasons for
the conclusion go beyond
credibility and indicate a
consideration at the trial of
irrelevant matters or a failure
to weigh all relevant issues and
also, where notwithstanding a
finding of credibility by the
Trial Judge, the overwhelming
pressure of the rest of the
evidence not properly evaluated
at the trial was such as to
render the conclusion expressed
either glaringly improbable,
perverse, or contrary to
compelling inferences of the
case that it justifies and
authorizes appellate
disturbance of the conclusion
reached at the trial and the
judgment giving it effect as the
Court of Appeal proceeded to do.
(40)
In the instant case not only did
the Trial Judge erroneously
apprehend the facts, he
evaluated the evidence placed
before him superficially and
treated Exhibit ‘A’ with the
wrong perception by glossing
over the particulars and the
effect thereof. Thus in the
judgment, the Trial Judge
attempted to discount its effect
as if it was irrelevant in
relation to the purported
customary usufructuary interest
the Appellants claim to hold
over the subject matter when
infact Exhibit ‘A’ was purported
to be a confirmatory deed of
that interest which the
Appellants had failed to prove.
(41)
The well-established judicial
attitude to erroneous findings
and conclusions by the Trial
Court was elucidated upon in
Effisah Vs. Ansah [2005-2006]
SCGLR 945 where Wood JSC
(as she then was) at page
959 restated the position of the
law with respect to the approach
of the appellate courts to
findings of fact of the Trial
Court as follows:- “The well
settled rule governing the
circumstances under which an
appellate court may interfere
with the findings of the trial
tribunal, has been examined
times without number by this
court in a number of cases as
for example,
Fofie
Vs. Zanyo [1992]2 GLR 475 &
Barclays Bank Ghana Ltd. Vs.
Sakari [1996-97]SCGLR 639.
The dictum of Acquah JSC (as he
then was) in the Sakari case is
for our purposes, highly
relevant. His Lordship observed
(at page 650 of the report) as
follows:-
“…where the findings are based
on undisputed facts and
documents,… the appellate court
is in decidedly the same
position as the lower courts and
can examine those facts and
materials to see whether the
lower courts’ findings are
justified in terms of the
relevant legal decisions and
principles”.
It is thus well settled that
specific findings of fact might
properly be said to be wrong
because the tribunal had taken
into account matters which were
irrelevant in law; or had
excluded matters which were
relevant in law; or had excluded
matters which were crucially
necessary for consideration or
had come to a conclusion with no
court, instrumenting itself on
the law would have reached; and
where the findings were not
inferences drawn from specific
facts, such findings might
properly be set aside…”
(42)
In our view therefore, the Court
of Appeal correctly applied this
settled principles of law
guiding the attitude to the
Trial Court’s primary findings
of facts and conclusions which
were inconsistent with the facts
and evidence adduced. In the
instant case, the Trial Court
not only misapprehended the
drift of the evidence in its
evaluation but erroneously
misconstrued the legal effect of
Exhibit ‘A’. The law is that a
Plaintiff must succeed on the
strength of his own case and not
on the weakness of the defence.
Where a Plaintiff’s evidence is
unsatisfactory as is the case of
the Appellants in the instant
appeal, the judgment should be
in favour of the Defendant on
the ground that, it is the
Plaintiff who seeks relief who
carried the statutory burden to
prove that he is entitled to the
reliefs claimed.
See the cases of
Frempong II Vs. Brempong 14 WACA
13, & In Re Ashalley Botwe
Lands, Adjetey Agbosu & Others
Vs. Kotey & Others [2003-2004]
SCGLR 420 per Brobbey
JSC.
(43)
Having found no error on the
part of the Court of Appeal
after it had reevaluated the
evidence on record and ascribed
to it its own probative value,
the appeal wholly fails and it
is hereby dismissed. The
judgment of the Court of Appeal
is hereby affirmed.
I. O. TANKO AMADU
(JUSTICE OF THE SUPREME COURT)
P. BAFFOE-BONNIE
(JUSTICE OF THE SUPREME COURT)
Y. APPAU
(JUSTICE OF THE SUPREME COURT)
A.
M. A. DORDZIE (MRS.)
(JUSTICE OF THE SUPREME COURT)
C. J. HONYENUGA
(JUSTICE OF THE SUPREME COURT)
COUNSEL
ARCHIE DANSO FOR THE
PLAINTIFFS/RESPONDENTS/APPELLANTS.
BELINDA PWAMANG FOR THE
DEFENDANT/APPELLANT/RESPONDENT.
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