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JUDGMENT
SOPHIA AKUFFO, J.S.C.
On February 14th 2001, we
unanimously allowed the appeal
herein but reserved our reasons,
which we now give as follows:—
In this appeal against the
judgment of the Court of Appeal
dated June 17th 1999, the
Appellant set out his grounds of
appeal in rather prolix terms.
These may however, be briefly
summarised as follows:—
a. The Court of Appeal erred in
not assessing the evidence
before the trial court to
ascertain whether or not the
evidence supported the trial
court's judgment.
b. The Court of Appeal erred in
proceeding on the assumption
that the matter before the trial
court turned solely on the facts
and thereby ignored issues of
law, which had been raised by
the evidence.
c. Since the appellant's claim
was for a declaration of title
and the respondent had not
counterclaimed for a similar
declaration, or at all, the
Court of Appeal erred in
upholding the trial court's
order that 'the status quo ante
should be maintained'.
The background to this appeal is
that, the appellant, on his own
behalf and as the Head of the
Aburadze family of Gwira
Akyinimu, claimed against the
respondent for declaration of
title to two pieces of land
known as Gwira Akyinimu, in the
Edina Traditional Area, and
orders for recovery of
possession and perpetual
injunction.
The appellant's case was to the
effect, that the disputed lands
were originally broken and
settled by his ancestor Kwesi
Gwira, the first Odikro, who had
been accompanied by his sister,
Tseasewa. In the course of time,
according to the appellant, a
member of the defendant's family
married the niece of the Odikro
and, as a result of the
marriage, Gwira promised that
farming land would be made
available to members of the
respondent's family who wished
to farm, and this became an
established practice. Also,
according to the appellant, when
the respondent himself needed
land for a salt industry, he had
approached Nana Gwira III and
requested an allocation, which
request had been granted after
the performance of custom.
However, the respondent had,
without the consent of the
Odikro, attempted to extend the
area of his allocation, and,
moreover, had been claiming
ownership of the entire land and
purporting to sell portions
thereof, thereby precipitating
the suit.
For his part, the respondent,
asserted that the lands were the
family's ancestral property and
that, therefore, he needed no
permission or consent from the
appellant to alienate any part.
The respondent also claimed that
the founder, Kwesi Gwira was his
ancestor who hailed from the
Adwenadze (Aowin) family of
Bantama near Elmina. According
to the respondent, Kwesi Gwira
married Tseasewa who was from
Anomabu and was the ancestress
of the appellant. After Kwesi
Gwira died, his children were
permitted to farm on the lands
and function as caretakers for
their father's Adwenadze family,
provided they paid annual homage
to the family's Stool at Bantama.
In further support of his
contention, the respondent
asserted that, during the time
of one of the appellant's
predecessors, Kofi Gin (or Kofi
Gyem), an attempt was made by
the appellant's family to
enstool a chief at Gwira
Akyinimu, without the requisite
prior reference to the
respondent's family, as a result
of which the Head of the
respondent's family swore the
Great Oath of Elmina on the said
predecessor. Consequently, the
matter was arbitrated upon and
it was made clear to the
appellant's family that it could
not enstool anyone at Gwira
Akyinimu without the prior
consent and permission of the
respondent's family. The
appellant's family then
slaughtered a sheep to appease
the respondent's family. The
respondent also contended that
his family, as the landowners,
had at various times made grants
of portions of the land and had
also, upon the request of the
appellant, made grants to the
Oman of Gwira Akyinimu and had
otherwise exercised acts of
ownership on the lands without
any protest from the appellant
or his family. Therefore, the
respondent contended further
that the appellant was estopped
by the arbitration award, by his
conduct and acquiescence and by
the respondent's long and quiet
possession, from claiming title
to the lands.
Subsequently, four other persons
successfully applied to be
joined as co-plaintiffs claiming
that, when the trial court
ordered a survey of the property
in dispute, the areas pointed
out by the respondent for
demarcation as his property
encroached onto their respective
properties. The co-plaintiffs
are not Appellants herein.
In the Court of Appeal, the
appellant's original ground of
appeal was simply that the
decision of the trial court was
against the weight of the
evidence. Subsequently, and with
the leave of the Court of
Appeal, he argued on additional
grounds to the effect that:—
a. The trial judge did not apply
any principle of law in his
judgement and thereby fell into
error.
b. The trial Judge failed to
appreciate that since the
appellant had been in
undisturbed possession of the
land in dispute for several
years, his possession was good
title against the whole world
except someone with better title
and because of this lack of
appreciation, the Judge
erroneously ignored the burden
on the respondent to prove his
title.
Afreh, J. A. read the judgement
of the Court of Appeal. In
respect of additional ground
one, the court held that, where
only issues of fact arise for
determination in a case and they
can be resolved without any
citation of law, then the judge
is not bound to refer to,
analyse or apply any legal
principles, provided the
decision is not contrary to the
law or can be supported in law.
Additional ground two was the
only ground the Court considered
to be worthy of its attention.
Their Lordships, however, found
that the trial judge had
adequately considered the
evidence and reached conclusions
that were reasonable in the
light of the evidence.
With regard to the third ground
of appeal, Afreh, J.A. stated
that the trial judge did not,
and was not bound to, direct
himself on the question of
burden of proof, and by the very
fact that he came to a
conclusion, it can be assumed
that he knew and applied the law
on burden of proof in a civil
case. Consequently, he held
that, unless the appellant could
show that there was insufficient
or no evidence to support the
judgement, there was hardly any
point in the appeal court being
asked to consider the question
of burden of proof.
With all due respect to the
learned judges of the Court of
Appeal, we find their
conclusions to be rather odd.
The adjudication process is
nothing if it is not a process
guided by law. Admittedly, a
judge is not required to cite
any particular law in every
case, particularly where it
turns essentially on the facts,
however, the evaluation of
evidence is a legal process and
the law of evidence is expected
to be and must be seen to have
been applied fully and without
any exception, save such
exceptions as are permitted by
the law. Thus, whether or not
the trial judge makes specific
reference to the particular
legal provisions he applies in
the evaluation of evidence, the
law of evidence must run as the
undercurrent guiding the flow of
his assessment and if the
outcome of the exercise is such
that it is alleged that the
trial judge's evaluation offends
against the applicable rules of
evidence, it is incumbent on an
appellate court to review the
record in the light of the rules
of evidence.
Furthermore, an appeal is by way
of a rehearing, 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,
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 it arrives at its
decision, so as to satisfy
itself that, on a preponderance
of the probabilities, the
conclusions of the trial judge
are reasonably or amply
supported by the evidence. It is
our view that the Court of
Appeal in this case failed to do
this.
In our opinion, neither the
trial judge nor the Court of
Appeal properly applied the
rules of evidence. The
appellant's main case before the
Court of Appeal was that, in
evaluating the evidence, the
trial judge proceeded on the
assumption that the appellant
"had a burden greater than
producing evidence which was
reasonably more probable than
that of the defendant." Part II
(dealing with the burden of
proof) of the Evidence Decree,
1975 (NRCD 323), Section 12
provides as follows:—
"12(1) Except as otherwise
provided by law, the burden of
persuasion requires proof by a
preponderance of the
probabilities.
(2) 'Preponderance of the
probabilities' means that degree
of certainty of belief in the
mind of the tribunal of fact or
the court by which it is
convinced that the existence of
a fact is more probable than its
non-existence."
Although the Decree makes
mention of the 'belief in the
mind of the court or the
tribunal of fact', it goes
without saying that such belief
must be founded upon and guided
by the totality of the evidence
on record.
In explaining the significance
of the innovations introduced by
the Evidence Decree,
particularly in the allocation
of the burden of proof in
actions, such as this one, for a
declaration of title, this
court, in Odonkor vrs. Amartei,
[1992-93] part 1 GBR, 59, held
that the principle that a
plaintiff in an action for
declaration of title must win on
the strength of his case and not
on the weakness of the
defendant' case no longer held
sway in Ghana. Rather, under the
Decree, the judge in all civil
cases, must consider the
relative merits of the case on a
preponderance of the
probabilities, rather than 'on
an archaic principle which might
not accord with reason or common
sense.'
The fundamental question before
the trial judge was 'who is the
owner of the lands in dispute?'
The trial Judge concluded that:—
"From the totality of the
evidence led, I find as a fact
that Gwira came from Bantama and
belonged to the Defendant's
family and he broke the virgin
forest. He was said to be Nana
Gwira I because he founded the
village. That is quite normal
since some heads of family are
titled "Nana" just like the
Plaintiff herein. I find
Tseasewa hailed from Anomabu and
was married to Kwesi Gwira. I
find Tseasewa's people also came
from Anomabu and were allowed to
occupy the land as caretakers
and were to pay annual tolls of
a sheep and eighteen shillings
cash to the Defendant's family.
I also find that the Plaintiff's
family were entitled to a
one-third share of anything
taken from any tenant placed on
the land. With this
relationship, it appears that
the Defendant had allowed the
Plaintiff complete control over
the land subject to their
observing these terms.
Therefore, the Plaintiff could
not claim absolute ownership of
the land however long they had
been on the land. In the same
vein, the Defendant could not
by-pass the Plaintiffs family
and without informing them grant
portions of the land to other
persons."
So, what was the totality of the
evidence as at the close of the
trial? It was not in dispute
that the original settler of the
land was Nana Gwira. The problem
was that both parties, although
they did not belong to the same
family, claimed Gwira as their
ancestor. The Appellant, in his
evidence-in-chief traced his
connection to Gwira as follows:—
"My ancestor Nana Kwesi Gwira
cultivated the land with his
sister Aberewa Aba Tseasewa, and
their mother was called Aba
Awen. Nana Kwesi Gwira and Aba
Tseasewa had other brothers and
sisters but they all died
leaving only the two survivors.
Aba Tseasewa had children
namely, Brodwemaba, Amoesiwa,
Aba Mansah. Brodwemaba begat
Akosua Tawiah, Kweku Ainoo,
Kobina Anowa and Ahema. Akosua
Amoesiwa begat Adwoa Praba and
Kwesi Gwira. Aba Mansah begat
Atta Panyin and Atta Kakra and
Madam Tawiah. I came from the
line of Aba Mansah. Madam
Tawiah begat my mother called
Nana Amma... On the death of
Nana Kwesi Gwira, he was
succeeded by Nana Kobina Essuon
who was also a member of the
family. Nana Kobina Essuon was
succeeded by Kwesi Tawiah on
whose death E.K. Osei succeeded.
E.K. Osei is still alive."
The Respondent did not
significantly challenge this
crucial portion of the evidence
on cross-examination. As for the
Respondent, apart from his bare
assertion that Gwira was his
ancestor, nowhere in his
pleadings or testimony, did he
establish any connection
whatsoever between his family
and Gwira. Nor did he produce
any witnesses to establish any
such connection. Thus, the
finding that Gwira hailed from
the Respondent's family had no
support from the evidence.
Rather his Lordship, in total
disregard of the stipulations of
the above-quoted provisions of
the Evidence Decree, took the
stance that, since P.W.2
testified that Aba Tseasewa was
from Anomabu and she was
doubtlessly the ancestor of the
Appellant, then it followed that
the Respondent's story was the
correct version. In the light of
the provisions of the said
Decree, this conclusion was,
with all due respect to the
learned trial judge, a
non-sequitor.
Additionally, the judge
completely disregarded the
glaring fact that:—
a. All the Plaintiffs (owners of
adjoining properties, whose
claims he found as established),
knew only the Appellant's family
as the owners of the land, and
did not know the Respondent's
family as such;
b. The Respondent clearly had
no,knowledge of the boundaries
of the subject matter in dispute
between him and the Appellant,
which lack of knowledge was the
catalyst for the joinder of the
co- plaintiffs to the suit;
c. Equally, the Respondent had a
total lack of knowledge of who
was the current Chief of the
village, even though according
to him, as a consequence of his
family's over-lordship of the
land, the installation of such a
Chief necessitated the prior
consent of his family;
d. According to P.W.l's
testimony, at the swearing in of
Nana Gwira IV, (at which time
he, the witness, was the acting
Omanhin of Edina Traditional
Area) the said chief (a member
of the Appellant's family) was
accompanied only by the elders
of his Abiradze stool family,
and although, according to
custom," ...The person who gives
the permission must also appear
before the Omanhin during the
swearing-in-ceremony ... nothing
of the sort happened, that
person has to inform the Omanhin
he gave the stool to the person
coming to swear the oath."
In such circumstances, the
preponderance of the
probabilities, clearly, stood in
favour of the Appellant and in
the absence of any cogent
evidence from the Respondent
shifting the probabilities in
his favour one is hard put to
find any justification for the
Trial Judge's finding that Gwira
belonged to the Respondent's
family.
Regarding the payment of tolls
to the Respondent, his Lordship
relied entirely on the testimony
of the Respondent's sole
witness, D.W.1, the bulk of
whose knowledge was derived from
what he was told by his father
nearly 90 years previously, even
though this witness' testimony
varied in many respects with
that of the Respondent. Other
portions of this witness's
evidence worthy of note are:—
All in all, what is most
apparent from the record is
that, the Judge simply chose to
disregard the evidence produced
by the Appellant, without any
serious evaluation, and
accepted, wholesale, the
assertions of the Respondent,
despite the dearth of adequate
supportive evidence.
Consequently, there is no doubt
in our minds that the Judge
erroneously placed the burden of
proof solely on the Appellant
and virtually assigned none
whatsoever to the Respondent.
After reviewing the record, it
was, therefore, our conclusion
that, on a preponderance of the
probabilities, the judgement of
the trial Judge 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.
We, therefore, set aside the
judgement and orders of the
trial court and enter judgement
for the Appellant on all his
claims.
JUSTICE SOPHIA AKUFFO (MS)
JUSTICE OF THE SUPREME COURT
JUSTICE EDWARD WIREDU
AG. CHIEF JUSTICE
JUSTICE KPEGAH
JUSTICE OF THE SUPREME COURT
JUSTICE ADJABENG
JUSTICE OF THE SUPREME COURT
JUSTICE ATUGUBA
JUSTICE OF THE SUPREME COURT
COUNSEL
Mr. Owusu Ansah for the
Appellant.
Mr. Ivan Quansah for the
Respondent. |
