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GHANA BAR REPORT 1993 -94 VOL 1

Odonkor and others v Amartei

SUPREME COURT

WUAKU, AMUA-SEKYI, OSEI-HWERE, WIREDU, HAYFRON-BENJAMIN JJSC

26 MAY 1992

Land law and Conveyancing - Declaration of title - Nature of action for, - Action for trespass and injunction - Title not in issue - Whether action for declaration of title.

Customary law - Land - Abandonment - Circumstances in which land deemed to be abandoned - Abandonment a question of mixed fact and law.

Customary law - Land - Licence - Licensee in possession without payment of toll for a long time - Licensee acquiring usfructuary title alienable to strangers without any obligation to licensor.

Damages - Trespass to land - Punitive award - Trespass to land in fast developing middle-class residential area of rising property values - Whether exemplary or punitive damages proper.

Land law and Conveyancing - Declaration of title - Burden of proof - Burden on claimant to prove title on the balance of probabilities.

Estoppel - Per rem judicatam - Judgment - Plaintiff’s predecessor testifying in support of the title of defendants’ predecessor in a land suit with a third party - Judgment given in favour of defendant’s predecessor - Whether plaintiff estopped by judgment.

Estoppel - Conduct by, - Testimony - Plaintiff’s predecessor testifying in support of the title of defendants’ predecessor in a dispute with a third party - Judgment given in favour of defendants’ predecessor - Whether plaintiff estopped by conduct - Evidence Decree 1975 (NRCD 323) s 26.

Courts - Appellate court - Concurrent findings of fact - 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.

The plaintiff-respondent brought an action against the defendants-appellants, before the High Court, Accra, for damages for trespass and injunction to restrain the appellants and their privies from committing acts of trespass to the disputed land. It was not in dispute that the plaintiff had been in possession of the lands for over two hundred years. The defendants contended that until 1904 the plaintiff’s ancestors were paying tolls to them. It was however not in dispute that since 1904 the plaintiff’s ancestors had paid no toll for the use of the lands. At the hearing the 2nd defendant gave evidence on behalf of all the defendants and the notice of appeal included the 3rd defendant as an appellant. The learned High Court gave judgment for the plaintiff against the defendants including the 3rd defendant who had entered appearance but filed no defence and awarded ¢1,000,000 damages against them. The defendants appealed to the Court of Appeal but the appeal was dismissed. On a further appeal to the Supreme Court they submitted that, though framed as a claim for an injunction and damages for trespass, the action was for a declaration of title and the courts below erred in not treating it as such; that the burden lay on the plaintiff to prove his title and in discharging this burden he ought to have relied on the strength of his case and not on the weakness of the defendants’ case. It was submitted also that the courts below ignored the evidence on abandonment of the disputed land by the plaintiff and that they erred in not holding that the plaintiff was estopped by the case of Bosompem v Martey in which the plaintiff’s predecessor, the head of family, testified on behalf of the defendants’ head of family in a claim by a third party in respect of the disputed lands. The appellants contended further that no evidence was adduced on damages nor did the plaintiff suffer any loss and therefore the award of damages was arbitrary, excessive, unreasonable and ought to be set aside. Lastly, the defendants invited the court to review the concurrent findings of fact made in the courts below.

Held - (1) On the facts the action was for trespass simpliciter. The appellants had encroached upon land which did not belong to them and it was wrong for them to contend that the action sounded in a claim for a declaration of title. An action was for a declaration of title if it was between adjoining land owners for trespass, more properly described as a boundary dispute, or where a party had been dispossessed of land by reason of adverse claims thereto or where there had been a sale or alienation of the same land to rival purchasers. The defendants did not set out any of these grounds as entitling them to call upon the plaintiff to demonstrate his title. Kponuglo v Kodada (1933) 2 WACA 24, PC, Kodilinye v Odu (1935) 2 WACA 336 not followed; Summey v Yohuno [1962] 1 GLR 160, SC, Darfour Jnr v Boateng [1976] 2 GLR 191 followed.

(2) 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’s case had been blunted and consigned between the covers of the Evidence Decree where judges might be able to consider the relative merits of a civil case based on the preponderance of probabilities rather than on an archaic principle which might not accord with reason or common sense. In the present appeal the appellants displayed such ignorance of the history of the land and its extent as to warrant severe comments from the courts below. The Evidence Decree 1975 (NRCD 323) ss 11(4) and 12 provided that in all civil cases judgment might be given in favour of a party on the preponderance of probability. Kodilinye v Odu (1935) 2 WACA 336 not followed.

(3) Land would be held to have been abandoned if either the stranger was intransigent or had effectively and voluntarily abandoned it over a considerable period of years without intention of returning to it or had died intestate without a successor. Since the defendants contended that they were the grantors of the plaintiff the customary law on abandonment did not apply as it was only a grantee who could be said to have abandoned his land. Whether a land granted to a stranger had become atuogya or abandoned was a question of mixed fact and law. Mansa v Asamoah [1975] 1 GLR 225 approved.

(4) The plaintiff was not estopped per rem judicatam by the Bosompem v Martey case because his head of family was not a privy to the defendants’ ancestor. The defendants’ ancestors having procured the plaintiff’s head of family to assist them into victory by giving evidence in their favour, it was immoral and unconscionable for them to turn round and use the evidence against the plaintiff. Wuo v Kwarku [1960] GLR 235, SC, and Panyin v Asani II [1961] GLR 305, cited.

 (5) The testimony of the plaintiff’s head of family in the Bosompem case did not create estoppel by conduct under section 26 of the Evidence Decree 1975 (NRCD 323) where it was provided that where a person made a statement with intent that another person might act in reliance thereon and the person in fact relied thereon the truth of the statement would be conclusively presumed against the maker or his successors in interest in any proceedings between that party or his successors in interest and the other person and his successors in interest.

(6) The 3rd defendant took an active part in the litigation though he had defaulted in filing his defence. He entered appearance, attended the summons for directions and subsequent proceedings and the 2nd defendant testified on his behalf. He was by necessary implication an appellant. In any situation in which a judge was required to pronounce judgment after hearing evidence, he could give judgment against a defendant who was in default of his pleadings whether he appeared at the hearing or not. The object of entering appearance to a writ of summons was to intimate to the plaintiff that the defendant intended to contest the claim and thus submit to the jurisdiction of the court. Judgment could be given after trial against a defendant who defaulted in filing a defence without the necessity for a motion therefor. The procedure under the High Court (Civil Procedure) Rules LN 140A, Order 27 rule 5 and Order 32 rule 6 for default judgment was permissive and the plaintiff did not lose his right to have judgment entered in his favour without a motion therefor.

(7) In actions for trespass to land damages were at large and there was no need to prove special damage; the damages need not even be pleaded.

 (8) The disputed area was fast acquiring commercial and economic value and had been gridded into plots for a middle-class residential area. Property values must have been rising and the ¢1,000,000 damages awarded would not compensate the plaintiff for the contumelious disregard of his rights in the land. An award of exemplary or punitive damages would serve to warn persons against encroachment on property rights of others. The defendants were obdurate land speculators who set out to disturb the property rights of the plaintiff’s family. They betrayed their ignorance of the history of the land and they must suffer for it. Loudon v Ryder [1953] 2 QB 202 cited.

(9) Concurrent findings of two lower courts ought not inhibit an appellate court from adjudicating issues according to the evidence unless the evidence had been thoroughly sifted by the two courts below and it was therefore not necessary to review it a third time. Mansah v Asamoah [1975] 1 GLR 225, Srimati Bibhabati Devi v Kumar Ramendra Narayan Roy [1946] AC 508, cited.

(10) Long possession and occupation of the land by the plaintiff’s family without the performance of any customary services to the defendants’ family conferred usufructuary title, not mere occupational licence, on the plaintiff’s family. They were free, in pursuance of their usufructuary title, to alienate the land to strangers without subjecting themselves or the strangers to any obligation to the defendants’ family.

Cases referred to:

Atta Panyin v Asani II, Atta Panyin v Essuman (Consolidated) [1977] GLR 83, CA.

Atta Panyin v Asani II [1961] GLR 305, CA.

Darfour Jnr v Boateng [1976] 2 GLR 191, CA.

Dua v Tandoh, PC 1874-1928, 109.

England v Palmer (1955) 14 WACA 659.

Agyepong (deceased), In re, Donkor v Agyepong [1973] 1 GLR 326

Kodilinye v Odu (1935) 2 WACA 336.

Kponuglo v Kodadja (1933) 2 WACA 24, PC.

Kwaku (Tetteh) v Brown (Kpakpo) (1913) Ren 683.

Lawer v Kwami (1958) 3 WALR 473.

Loudon v Ryder [1953] 2 QB 202, [1953] 1 All ER 741, [1953] 2 WLR 537, 97 Sol Jo 170, CA, 17 Digest (Reissue) 81.

Mansa v Asamoah [1975] 1 GLR 225.

Mantse Anage Akue v Mantse Kojo Ababio IV, PC dated 27 June 1927.

Mensah v Blow [1967] GLR 424, CA.

Odametey v Clocuh [1989-90] 1 GLR 14, SC.

Serwah v Kesse [1960] GLR 227, SC.

Srimati Bibhabati Devi v Kumar Ramendra Narayan Roy [1946] AC 508, [1947] LJR 26, 176 LT 209, 62 TLR 549,PC, 16 Digest (Repl) 106.

Summey v Yohuno [1962] 1 GLR 160, SC.

Wuo v Kwarku [1960] GLR 235, SC.

Yoguo v Agyekum [1966] GLR 482, SC.

APPEAL from the decision of the Court of Appeal affirming the decision of the High Court, Accra.

E D Kom (with him Nii Aponsah) for the appellants.

James Ahenkorah for the respondent.

HAYFRON-BENJAMIN JSC. This is a second appeal with the leave of the Court of Appeal by the defendants who shall hereafter be referred to as “the appellants” from the judgment of Their Lordships of the Court of Appeal dated the 23rd May 1991 affirming the judgment of Dove J sitting in the High Court, Accra and dated the 11th day of October 1990.

The action giving rise to this appeal was concerned with certain alleged acts of trespass by the appellants to a tract of land on which the village of Haatso is situate and claimed by the respondent, the plaintiff, in the said action. In this judgment the plaintiff shall be referred to as “the respondent”.

Two reliefs were claimed on the respondent’s writ of summons, namely: (a) five million cedis (¢5,000,000) damages against the appellants severally for trespass and (b) an injunction to restrain the appellants and their privies from committing further acts of trespass.

It was not in dispute between the parties that the respondent had been in possession of the lands for over 200 years. The appellants contend, however, that until 1904 the respondent’s ancestors were paying tolls to them. It is also not in dispute that since 1904 the respondent’s ancestors had paid no tolls for the exclusive use of the lands. The appellants contend that as a result of evidence given in their favour by Tettey Kwao, the ancestor of the respondents in the case of Kwasi Bosompem v Martey the respondent’s ancestors were permitted to live ‘free of charge’ on the land.

The learned High Court judge heard and considered the evidence and gave judgment for the respondent. In his judgment, the learned High Court judge made the following findings:

“(a) that if the contention of the appellants were right that the land was given for farming then it could not only cover the area of the ‘Huts’. In any case even Tettey Kwao in his evidence in the Bosompem case had stated: ‘There are about 5 huts in the village now, there used to be more ...

(b) that since 1904 the respondent’s family had dealt with the land as their own and had paid no tolls. This belied any assertion that the respondent had been paying tolls;

(c) that if the appellants are correct that they allowed the respondent’s family to live on the land ‘free of charge’ then this amounted to an absolute grant and the respondent’s family were under no obligation to perform any services to the appellants;

(d) that it was possible among the Ga-speaking tribes for a person to acquire title to land by prescription contrary to the concept among the Akan-speaking tribes that such acquisition of title by prescription is not possible.”

In support of this proposition the learned High Court judge relied on a passage from the Report on Land Tenure in Customary Law of Non-Akan speaking Areas by R H J Pogucki, a former Commissioner for Lands in this country, at page 40 paragraph 901 where he wrote:

“In so far as Ga customary law is concerned, the principle of acquisition of rights in land by lapse of time is accepted.”

The learned High Court judge also relied on the judgment of the Privy Council in Mantse Anage Akue v Mantse Kojo Ababio IV dated 27 June 1927 and found:

“(e) that the respondent gave ample evidence of acts of possession by members of his family and called witnesses as to grants made by them to those witnesses and others;

(f) that the appellants failed to give evidence of possession in support of their pleading;

(g) that the appellants had abandoned their rights of possession to the land, if any;

(h) that the respondent had made out his charge of trespass against the appellants, the appellants having also admitted their trespass by paragraph 7 of their statement of defence. “

For ease of reference paragraph 7 of the statement of defence reads thus:

“7. The 1st and 2nd defendants deny the wrongful acts attributed to them and say that their acts are rightful and consistent with their family’s absolute ownership of the lands in dispute.”

For the reasons stated above Dove J gave judgment for the respondent and awarded damages for the trespass and costs against the appellants. Being aggrieved by that decision the appellants appealed to the Court of Appeal.

It is pertinent at this stage to re-examine the notice of appeal filed by the appellants on the 16th October 1990 in the light of what had preceded the notice and the subsequent conduct of learned counsel for the appellants when arguing his grounds of appeal before Their Lordships of the Court of Appeal. First, learned counsel signed the notice of appeal for all three appellants. Next, the solicitor entered appearance for only two of the defendants-appellants. However, on the 14th April 1989 C E Quist, Esq., barrister-at-law and solicitor, entered a separate appearance for the 3rd defendant, Nii Aryee Annang. In his evidence-in-chief the 2nd appellant who is 2nd defendant spoke for the defendants in these words: “I am the 2nd defendant in this action and I am giving evidence on my own behalf and on behalf of the other defendants”. Thus the 3rd defendant even though he filed no statement of defence, had entered appearance to the writ and had had the judgment of the High Court given against him. He was also by necessary implication an appellant in the Court of Appeal and before us. I will deal with the position of the 3rd appellant with respect to this appeal later in this judgment.

The appellants’ appeal to the Court of Appeal was dismissed. Their Lordships affirmed the decision of Dove J and in addition also found:

(i) that there was overwhelming evidence that ever since the respondent’s family took possession of the land, apart from the conduct of the appellants which prompted the present litigation, the respondent’s family “have before and after 1904 had exclusive possession of the whole land”;

(ii) that the respondent “gave a vivid description of the land and tendered exhibits to identify the position and area of Haatso”;

(iii) the appellants were ignorant of the extent of land given to the respondent’s family. The exhibits which they tendered rather agreed with the area of land being claimed by the respondent;

(iv) that on the evidence therefore, the identity of the land claimed by the plaintiff (respondent) was clear; there was no doubt as to the extent of the land claimed;

(v) that as the appellants could not establish what land they had given to the plaintiff’s (respondent’s) family, it should be presumed that what the respondent’s family now occupies is the land given to them.

(vi) that since the appellants were asserting that they had granted the respondent’s family permission to live on the land the burden lay on them to “identify clearly” the part of the land over which such permission had been granted.

(vii) that the evidence shows not only that the respondent’s family had not paid any tolls “at least since 1904” but they have also “built more houses on the land and granted portions of the land to strangers to build and farm on”;

(viii) that the appellants have never had possession of any portion of the land. Their village is separated from Haatso by the village of Agbogba - a Labadi settlement;

(ix) that the Legon Acquisition Enquiry conducted by Jackson J demonstrated clearly that the appellants had no claim to the lands part of which was swallowed up in the acquisition.

Ampiah JA, writing for the court, wrote:

“Where the land upon which [these persons] live is the subject-matter of an acquisition whereby all interests in the land become vested absolutely in another person ... the rightful owner must necessarily make the claim for compensation otherwise the rightful owner may be deemed to have abandoned what rights it may have in that land.”

The appeal therefore failed but Their Lordships granted the appellants leave to appeal to this court.

In the face of these concurrent findings the appellants sought leave to appeal to this court and were so obliged. In this court the appellants have tried to turn what the courts below clearly found to be a charge of trespass to the lands by them into an action for a declaration of title. In their statement of case and reply they place great reliance on dicta and rationes decidendi in the cases of Kponuglo v Kodadja (1933) 2 WACA 24, PC and Kodilinye v Odu (1935) 2 WACA 336. Learned counsel for the appellants submits that even though the Court of Appeal adverted its mind to the principle in the case of Kponuglo v Kodadja, supra, it nevertheless failed to apply the principle in the instant appeal. Learned counsel also submits that the two courts below failed to place the evidential burden of proof on the respondent - the plaintiff in the action - as enunciated in the case of Kodilinye v Odu. Thus for the respondent, as the plaintiff, to succeed in this claim he did not only have to prove his title to the lands, since he was claiming damages for trespass and injunction; the respondent also had to rely on the strength of his own case and not on any weaknesses in the appellants’ case. In the view of learned counsel for the appellants the respondent had failed to surmount these two vital evidentiary hurdles and therefore judgment should have gone in their favour. Indeed the appellants filed five grounds of appeal and these are covered by their statement of case and reply presented to us. However, before I embark on a consideration of these two authorities to the appeal in hand and the grounds raised in support of the appellants’ case, I think it is first requisite that we turn our attention to the real issue in controversy which in the view of the respondent is an action for trespass “pure and simple” and which the appellants consider to be a claim for a declaration of title.

The evidence in the case has been thoroughly sifted by the two courts below and it is therefore not necessary to review it a third time. In Mansah v Asamoah [1975] 1 GLR 225 Archer JA posed the question whether it was competent for the court to review the evidence where there have been concurrent findings in the lower courts on the authority of the judgment of the Privy Council in Srimati Bibhabati Devi v Kimar Roy [1946] AC 508, PC. At page 236 of the report he posed the question thus:

“concurrent findings have been made by two lower courts and the question is whether this court is competent or at liberty to disturb these findings.”

Then at page 237 he gave the answer thus:

“It appears therefore that concurrent findings of two lower courts should not inhibit this court from adjudicating the issues according to the evidence.”

I have made reference to Mansah v Asamoah because, as I have said, learned counsel for the appellants has stated his grounds in such a manner as to present to us a picture that the respondent’s claim actually sounds in an action for a declaration of title. To that extent he has referred to the evidence in his statement of case and invites this court to hold that each set of facts leads to an inference of law which is supportive of the appellants’ case. The case of Mansah v Asamoah will be referred to in this opinion with respect to the other issues raised in this appeal. For the present I am unable to accede to the appellants’ request to review the evidence.

From the record presented to us certain matters stand out so clearly as to disincline any reasonable judge from arriving at the conclusion that the issue was one for a declaration of title. First, the appellants were sued for trespass committed personally by them. That is why the claims are against them severally. Next, the appellants do not deny the acts of trespass complained of. Third, even if they claimed to be defending on the authority of their family - and this was a statement elicited from cross-examination of the 2nd defendant-appellant - the appellants’ land and the village of Ashongman were not contiguous with the land of the respondent. There was uncontroverted evidence that Ashongman and Haatso were separated by the lands of Agbogba village. Fourth, I find the judgment of Jackson J dated the 30th day of October 1951 in Land Acquisition No 1/1950 and Land Acquisition No 5/1950 popularly designated the Legon Acquisition as containing the most probable and correct reproduction of the historical origins of Papao and Haatso villages. In his summary of the results of the inquiry, Jackson J stated as follows:

“(a) the land acquired at one time was the meeting point of the Accras (Ga Mashie) and Labadis and this boundary was probably situate somewhere about where the old bush path from Osu (Christiansborg) went northwards through the villages of Jawuroo and then leaving Legon just to its west passed through Papao and Haatso to Abokobi.

(b) the Osu settled first at Osuko near Kwabenyan by the permission of the Accras and whose interest there were guarded primarily by the hunters of the Onamoroko (Korle Family).

(c) settlements further south and notably at Papao and Haatso were founded later and land occupied between the Accras and the Labadis by the permission of both communities who were then allied against the hostile tribes further in the interior.

(d) whether the same Osu family settled at Christiansborg before these settlements were made at Papao and Haatso is uncertain - whatever may be the case it is quite clear that the settlement on the coast outgrew those in the interior at Papao and Haatso and I think it probable, if not even certain, that Papao and Haatso were in existence before the bombardment of Christiansborg in 1856, when a large number of Osus joined their fellow men in those villages.”

Fifth, the appellants are Gas of the Gbese quarter or community. If the conclusions of Jackson J are correct - and as I have said I think it is the most probable historical account of the Ga migrations in that part of the country - then the Osus are positioned between the Gas and the Labadis. Haatso is by all accounts an Osu settlement and I so hold.

In the light of these further findings it is quite obvious that the appellants were trying to encroach upon land which did not belong to them. In my opinion it is wrong for the appellants to contend that the action of the respondent sounded in a claim for a declaration of title. An action is for a declaration of title if (i) the action is between adjoining land owners and one commits a trespass over the other’s land - in this country more properly denominated a boundary dispute - or (ii) where the party has been dispossessed of land by reason of adverse claims or possession made thereto or an actual right of occupation and enjoyment thereof or (iii) where there has been a sale or alienation of the same land to rival purchasers. The appellants have not set out any of these grounds as entitling them to call upon the respondent also to demonstrate his title. All that the appellants say is “this land is our ancestral property we granted you farming rights. We are therefore entitled to use the land for other purpose”. This assertion postulates that the appellants have always known that the respondent is in possession.

Now trespass to land is committed by injury to or interference with one’s possession thereof. The cardinal principles in an action for trespass to land are that the plaintiff must be in exclusive possession of the land at the time of the trespass and that the trespass is without justification. Mr James Ahenkorah, learned counsel for the respondent, in his statement of case has quoted essential passages from legal works on the definition of trespass quare clausum fregit which is its proper legal description. These are all valid and essential definitions and there can be no quarrel with them.

The appellants, however, take issue on the burden of proof required of a plaintiff in order to succeed in such action. They contend that in the instant case - as with all such actions - the principles of evidential burden laid down in Kponuglo v Kodadja and Kodilinye v Odu must be discharged else the respondent must fail. I shall now proceed to discuss these two decisions upon which these principal grounds of the appeal are based.

The appellants’ counsel submits that even though Their Lordships in the Court of Appeal adverted their minds to the principle in Kponuglo v Kodadja and they also agreed with the appellants’ further submission that the matter was not “an action for trespass pure and simple” they nevertheless failed to apply the principle to the facts. This court is therefore invited to apply the principle and uphold the appellants’ submission. In my respectful view the Court of Appeal was not bound to apply the principle in that case. That case was a decision of the Privy Council dated the 21st November 1933. In Mansah v Asamoah, Anin JA (as he then was) put it succinctly when at page 238 of the report he stated that:

“Admittedly, the decisions of the former appellate courts are usually accorded the greatest respect, but as was recently held by this court in Re Agyepong (deceased), Donkor v Agyepong [1973] 1 GLR 326 at pp. 331, 332, CA, the decisions and opinions of both the former West African Court of Appeal and the Judicial Committee of the Privy Council are not binding upon us.”

I agree with Anin JA (as he then was) that these decisions and opinions of these very high and exalted courts must command our greatest respect. In any case, as Apaloo JA (as then was) observed in Re Agyepong, supra, at page 333 of the report “the fact that we have held that ... that decision is not binding on us does not mean ipso facto that we should not follow it”. The appellants urge us to follow the principle in Kponuglo v Kodadja. The principle in Kponuglo v Kodadja was stated by Their Lordships of the Privy Council in this manner at page 24 of the report:

“The respondent’s claim being one of damages for trespass and for an injunction against further trespass, it follows that he has put his title in issue. His claim postulates, in Their Lordships’ opinion, that he is either the owner of [Bunya] land, or has had, prior to the trespass complained of, exclusive possession of it.” (Emphasis mine.)

I have examined the authorities in which the Kponuglo case has been cited, applied and distinguished and I opt for the explanation of Azu Crabbe JSC in Summey v Yohuno [1962] 1 GLR 160 SC, at page 165 in these words:

“It was therefore submitted by Mr Hayfron-Benjamin, no doubt on the authority of Kponuglo v Kodadja (supra), that the plaintiff having failed to prove a title in her, the defendants were entitled to judgment. But in my view the principle in Kponuglo & Ors v Kodadja (supra) always postulates that the defendant who puts the plaintiff’s title in issue in an action for trespass must himself on his evidence be able to make a bona fide claim of title. It would be a monstrous principle that a plaintiff in continued and undisturbed possession of land can be ousted by a defendant who merely sets up a fictitious and bogus title to the same land; it would, indeed set at nought the legal maxim melior est conditio possidentis ubi neuter ius habet or the time-honoured phrase ‘possession is nine points of the law’. In my opinion the real test in each case in an action such as the present one is whether a bona fide issue of title was raised or could genuinely be raised by the defendants at the trial (see Matonmi v Ibiyemi (1953) 14 WACA 390 at p 392, per Coussey JA.”

It seems to me therefore, that the conditions necessary for the application of the principle in Kponuglo v Kodadja, supra, are:

(1) That the plaintiff’s claim is for:

(a) damages for trespass,

(b) an injunction restraining the defendant or his agents or servant from entering the land or area in dispute or in any way interfering with the plaintiff’s possession of it.

(2) That the defendant claims ownership of the land or area in dispute.

However, I would add to this second condition for the application of the principle and re-state it as follows:

2. That the defendant claims ownership of the land or area in dispute or is in exclusive possession of it.

This addition enables us to get the principle in its correct context. Their Lordships precisely stated the two positions as “either the owner of ... or has had ... exclusive possession of it”.

In my respectful opinion even though Their Lordships in the Court of Appeal adverted to the principle, they were right in not following it. In the instant appeal the respondent had been in undisturbed possession of the lands for upwards of 250 years and in the words of Azu Crabbe JSC (as he then was):

“It would be a monstrous principle that a plaintiff in continued and undisturbed possession of land can be ousted by a defendant who merely sets up a fictitious and bogus title to the same land.”

The appellants’ defence was fictitious, bogus and hollow and the principle did not apply.

I would also subscribe to the dictum of Kingsley-Nyinah JA in Darfour Jnr v Boateng [1976] 2 GLR 191 at 193 when in considering the burden of proof which a plaintiff had to discharge in an action for trespass he said “upon him rests, squarely, therefore, the responsibility of satisfying the trial court that he was in possession of that parcel of land when his rights and his interests in the said area were violated to trigger off the action”. (Emphasis mine.) The respondent discharged this evidential burden which lay on him.

Next the appellants rely on the case of Kodilinye v Odu. Learned counsel for the appellants, Mr Kom, submits that by law the respondent, as plaintiff, assumed the burden of proof and therefore had to win on the strength of his own case and not on the weakness of the appellants’, the defendants’, case. The principle was stated at page 337 of the report in this manner:

“The onus lies on the plaintiff to satisfy the court that he is entitled on the evidence brought by him to a declaration of title. The plaintiff in this case must rely on the strength of his own case and not on the weakness of the defendant’s case.”

The appellants contend that even though “it is clear that the identity of the land claimed is clear” yet the respondent having put his title in issue he had to bear the evidential burden of proving the extent of the grant so made. Next, the appellants urge upon this court that the failure of the respondent to call “any boundary owners” was fatal to the respondent’s case. Third, that in any case, the Court of Appeal erred in law in holding that the respondent discharged that burden when it presumed that “the land which the plaintiff’s family claims and/or occupies was granted them in the absence of evidence of boundary owners”.

Kodilinye v Odu is a decision of the West African Court of Appeal delivered in 1935 which, though not binding on the courts of this country, is nevertheless entitled to the greatest respect, more so when the principle has become cliché in every lawyer’s language. The principle has been applied in many cases in this country and I have examined some of those cases. Speaking for myself I lend my support to the explanation or re-statement of the principle in Serwah v Kesse [1960] GLR 227 at page 229 where Van Lare JSC considering the principle in Kodilinye v Odu stated:

“The above quoted principle as to the onus required in title cases in my view, however, does not equate the degree of proof required by a plaintiff in a civil suit to the degree required of the prosecution in a criminal matter. The law as I understand it is that in all civil cases the preponderance of probability in favour of a party may constitute sufficient ground for a judgment in favour of that party.” (Emphasis mine.)

Taylor JSC in Odametey v Clocuh [1989-90] 1 GLR 14 at 27, 28 observed of this principle that:

“The mechanical application of this so-called principle in actions for declaration of title (the genesis of which is traceable to the erudite judgment of Webber CJ in the West African Court of Appeal on 18 June 1935) should be deprecated. In the said case, Kodilinye v Odu (1935) 2 WACA 336 at 337-338 involving a declaration of title, the learned Chief Justice said:

“The plaintiff in this case must rely on the strength of his own case and not rely on the weakness in the defendant’s case...”

If the dictum of Webber CJ above stated over half a century ago supports the proposition that a weakness in the defendant’s case in an action for a declaration of title must not be considered in evaluating the strength of plaintiff’s case, no matter the nature of the plaintiff’s case, then the dictum is now no more true of the legal position in modern Ghana, at least since the coming into force of the Evidence Decree, 1975 (NRCD 323) ... If there was ever a doubt about the true principle ... then NRCD 323 has now definitely cleared all possible doubts.”

The sections of the Evidence Decree referred to are sections 11(4) and 12.

It is well that Taylor JSC has blunted the sharpness of this principle and consigned it between the covers of the Evidence Decree where judges may be able to consider the relative merits of a civil case based on the preponderance of probabilities rather than on an archaic principle which may not accord with reason or common sense. In the present appeal the appellants displayed such ignorance of the history of the land and its extent as to warrant severe comments from the courts below. I do not think that it lies in their mouths to shout out the principle in the Kodilinye case and say that the respondent could not rely on the weakness of their case. The appellants had no case and the issue of its weakness therefore did not arise.

Having decided that the respondent discharged the main evidential burdens which fell upon him, it is not necessary to consider the other grounds save ground (5) which deals with damages. There are however one or two strictures levelled against the courts below by the appellants which must be considered the better to set the law in its proper perspective.

The one other important point raised by the appellants was the issue of abandonment. Learned counsel for the appellants referred to the evidence-in-chief of the appellant which is reproduced here as follows:

“We gave the land for farming but they have gone so far as to make a statutory declaration in respect of the land and have started selling the land, they have also prepared a layout. I have it here and I wish to tender it in evidence. (No objection, accepted and marked exhibit 3.) When these things were done, the elders of my family called the family of the plaintiff and advised them against the selling of the land. Later the plaintiff took this action against us...”

and concluded that as the evidence had not been challenged under cross-examination, “the Court of Appeal erred in completely ignoring it in arriving at their decision on abandonment”.

I think learned counsel has misconceived the law and misconstrued the statements of Their Lordships in the two lower courts. The law as I understand it is clearly expressed in holding (2) in the case, Mansah v Asamoah, to which I have referred and which is an authority on abandonment, which says:

“whether stool land granted to a stranger had become atuogya or abandoned was a question of mixed fact and law. The land would be held to have been abandoned if either the stranger was intransigent or had effectively and voluntarily abandoned the land over a considerable period of years without intention of returning to it or had died intestate without a successor.”

If the appellants contend that they were the grantors of the respondent, then the customary law on abandonment cannot apply to them because it is only the grantee who can abandon the land he has acquired by any of the recognised defaults.

But it is possible for the grantor to abandon his rights to and interest in the land. This is where learned counsel misconstrued the dicta of Their Lordships in the two lower courts. In the High Court the trial judge wrote: “The defendants’ rights over the land, if any ever existed have been abandoned”. In the Court of Appeal, Their Lordships were of the opinion that the failure of the appellants to get compensation in the Legon Acquisition meant that they were “deemed to have abandoned whatever rights they may have in that land”. Further on in the judgment Their Lordships stated:

“The only reasonable interpretation which can be given for the conduct of the parties, is that since Tettey Kwao gave that “faithful” evidence to assist defendants’ family, the defendants’ family has abandoned all claims to the land ... Clearly it was unnecessary for the respondent to plead abandonment at customary law.”

On the Bosompem v Martey case the appellants averred in their statement of defence that the “the plaintiff’s head of family faithfully assisted the defendants’ family by giving evidence in support of defendants’ family’s title”. This man was Tettey Kwao, the Headman of Haatso. Learned counsel for the appellants submits that in view of the evidence given by the respondent’s ancestor the respondent is estopped from denying the title of the appellants to Haatso lands.

Learned counsel takes issue with Their Lordships on their dictum that: “There is authority for the proposition that under certain circumstances, a non-party to a litigation may not be bound by evidence he has given in those proceedings especially when he had given that evidence for the victorious party in the litigation”. Learned counsel submits inferentially that Their Lordships’ proposition is not correct as there are authorities to the contrary. I have examined the two authorities cited in support - Wuo v Kwarku [1960] GLR 235, SC, and Panyin v Asani II [1961] GLR 305, and I find that these authorities do not contradict the dictum of the Court of Appeal. In these two authorities the essential factor was that the persons against whom the principle was sought to be used were privies to the parties for whom they had given evidence. In this case it is not contended that Tettey Kwao was privy to the appellants’ ancestor. Thus Their Lordships are right when they say that there may be instances where a non-party may not be bound by evidence which he gives in favour of the victorious party. The appellants’ ancestors having procured Tettey Kwao to “faithfully assist” them by giving evidence in their favour and they won, it is immoral and unconscionable for the appellants, successors to the victorious party, to turn round and use this “faithful” evidence against Tettey Kwao’s successor, the respondent.

Again the evidence relating to Tettey Kwao’s evidence in the Bosompem case does not come within the ambit of section 26 of the Evidence Decree. If I understand the purport and intendment of section 26, that section deals with estoppel by conduct wherein a person makes a statement with intent that another person may act in reliance upon the statement which he in fact does act upon. Then in respect of such person making the statement “the truth of that thing shall be conclusively presumed against that person or his successors in interest in any proceedings between that party or his successors in interest and such relying person or his successors in interest”. This statutory estoppel cannot apply to the respondent particularly when his ancestor Tettey Kwao gave that “faithful” evidence to assist the appellants’ ancestor.

Before I deal with the issue of damages, I desire to return to the position of the 3rd defendant - now 3rd appellant in this appeal. I have already enumerated the steps he has taken in this case and with respect to the appeals. I also find that on the 14th August 1988, he together with the 1st appellant appeared in court when summons for directions was called. From that date the record shows that all parties were present in court. I therefore hold that 3rd appellant took an active part in the litigation. Evidence was given on his behalf by the 2nd appellant in the High Court. The procedural difficulty which arises with respect to the 3rd appellant is whether being in default of defence judgment could be given against him. The matter has not been raised in any of the courts in which this case has been called. But since exemplary or punitive damages have been awarded it is important that his position vis-à-vis this judgment should be settled. Earl Jowitt’s ‘The Dictionary Of English Law’ defines default as:

“When a defendant neglects to take certain steps in an action which are required by the rules of Court, the Court may thereupon give judgment against him by default. The defendant allows judgment by default either intentionally or through mistake or neglect; intentionally, where he has no merits, or where he does so according to a previous agreement with the plaintiff; through mistake, when he delivers a pleading so defective that it is treated as a nullity; and through neglect, when perhaps he has no merits, but omits to appear, plead, etc., within the time limited by the rules of the Court for that purpose.”

The definition covers many cases of default. Thus where a defendant appears in court and admits the claim judgment may be given against him instantly. So also in this case where the 3rd appellant knowing that there is no merit in his case, yet presents himself in court and takes active part in the conduct of the case, judgment may be given against him. In my opinion in any situation in which a judge is required to pronounce judgment after hearing evidence, where one defendant is in default of his pleadings the court may give judgment against such defendant whether he appears at the hearing or he does not. The object of entering appearance to a writ of summons is to intimate to the plaintiff that the defendant intends to contest his claim and a party who does so submits to the jurisdiction of the court and judgment may be given against him after trial without the necessity for a motion therefor. In the High Court from which this appeal originated the relevant rules are Order 27 rule 5 and Order 32 rule 6 of the LN 140A. Practice notes in the 1956 Annual Practice say quite clearly that these two rules are permissive, and that a plaintiff does not lose his right to have judgment entered in his favour without a motion therefor.

Finally, learned counsel for the appellant contends that no evidence was adduced on damages or any loss suffered and therefore as the award was “arbitrary, excessive and unreasonable” it ought to be set aside. The learned High Court judge also seemed to think that there should have been proof of some special damage. This is a wrong view of the law. In actions for trespass to land, damages are at large and there is no need to prove special damage. The damages need not even be pleaded. Learned counsel in reply to this submission set out the various acts of trespass including (a) bringing people to the land and granting them plots for building, etc. (b) ignoring the protest of the respondent’s family against these encroachments (c) permanent damage involving loss of several plots of land.

The appellants do not seem to have an answer to this award of damages. In fact, the appellants did not appeal against the award of damages before the Court of Appeal. The appellants urged before Their Lordships in the Court of Appeal their ground 5 which reads:

“The judgment is against the weight of evidence particularly that the defendants took no action about wrongful disposition by the plaintiff’s family.”

It beats my imagination how on the basis of this ill-framed ground of appeal the appellants could be said to be appealing against the award. But under this head the learned counsel managed to raise the issues of damages and costs and forgot any discussions of the quarrel that “the defendants took no action about the wrongful disposition by the plaintiff’s family”. I therefore hold that any appeal against the award of ¢1,000,000 against the appellants was abandoned at the Court of Appeal. It is not open for an appellant to state one ground and urge completely unrelated arguments in support thereof. That ground of appeal must fail.

Learned counsel for the respondent submits that land in the area is fast acquiring commercial and economic value. There is evidence that Haatso has been gridded into plots and a middle-class residential area is developing there. Property values must be rising and the ¢1,000,000 damages awarded against the appellants will not be enough to compensate the respondent for the contumelious disregard of his rights in the land. In my respectful opinion an award of exemplary or punitive damages would serve to warn persons against encroachment on property rights of others. In support of the view that I hold on the award of exemplary or punitive damages I would refer to the English case of Loudon v Ryder [1953] 2 QB 202 at 209, where Singleton LJ referred to the summing up of Devlin J (as he then was) to the jury with approval. It states thus:

“The punitive damages are rather like imposing a fine, as if you were a bench of magistrates and you wanted to impose a fine which made it quite clear what view you took of a wanton and wilful disregard of the law, or for somebody else’s rights, and wished to make it quite plain that you marked the seriousness of the offence, if it was a serious offence, and so to show the defendant that he cannot do that sort of thing with impunity. That is the way in which you can regard that, if you take that view. Think of it as a fine which has to hit the defendant hard if he has disregarded the rights of others and show that that sort of conduct does not pay.”

In my view the appellants were obdurate land speculators who, armed with a page containing the evidence of Tettey Kwao and forming part of the record of the case of Bosompem v Martey, set out to disturb the property rights of the respondent’s family. They betrayed their ignorance of the history of the land and they must suffer for it.

In the result this appeal also fails. The judgments of the two lower courts are affirmed and the respondent will have his costs in this court and in the courts below.

WUAKU JSC. I agree and I have nothing I wish to add.

AMUA-SEKYI JSC. I am also of the opinion that the appeal be dismissed. It is unfortunate that statements made by Their Lordships of the Privy Council in Kponuglo v Kodadja (1931) 2 WACA 24 have conveyed the impression that a party in exclusive possession of land cannot succeed in an action for damages for trespass coupled with a claim for an injunction against further trespass unless he proves that he is the owner of the land. A careful reading of the judgment shows that Their Lordships regarded proof of exclusive possession as being enough. Thus, reviewing the trial in the court below they said at page 25:

“Indeed, so far as possession is concerned, the learned judge stated that the appellants, in his opinion, had a better case for title by occupation.”

And, after examining the evidence, they said at page 29:

“... the respondent [plaintiff] has failed to prove exclusive possession by him such as is necessary to instruct a title to claim the remedy which he seeks.”

Therefore, as soon as it was admitted, or proved that the plaintiff’s family were in exclusive possession of the land prior to the acts complained of the burden shifted onto the defendants to prove that they were justified in interfering with their quiet enjoyment thereof. This burden the defendants failed to discharge.

The damages awarded were in the large sum of one million cedis. Mr Ahenkorah, counsel for the plaintiff, says that because of the peculiar manner in which he endorsed the writ, the award must be taken to be three million cedis.

The indorsement reads:

“i. ¢5,000,000 (five million cedis) general damages, severally for trespass to all that tract of land with the village of Haatso therein lying north of the University of Ghana, Legon, Accra, bounded on the north by the land of the people of Agbogba, which boundary commences at a point on the old Aburi Road, now Agbogba-Accra motor road, and goes in a westerly direction to meet the Onyasia stream with Onamoroko Adang Family land on the opposite side, then in a south-westerly direction to cross the Madina-Kwabenya motor road to meet the land of Papao a little further south, then in an easterly direction till it meets the land of the University of Ghana and runs along the boundary of the University to cross the Madina-Kwabenya road again until it meets the old Aburi road, now the Accra-Agbogba motor road and goes north-westwards to the point of commencement. The said tract of land is delineated on the plan attached hereto marked red.

ii. Injunction restraining each of the defendants by himself, servants, agents, licensees or otherwise or in anyway whatsoever from further trespassing upon or interfering with the Nii Armah Sogblah’s family’s possession and occupation of the land herein above described.”

The practice has been to claim damages against defendants “jointly and severally” so as to be entitled to relief whether the liability of the defendants is joint or several. It is not the function of these words to enhance or diminish damages.

At the conclusion of the trial the judge made the following order:

“... I enter judgment for ¢1 million damages for trespass and an injunction against each of the defendants in terms of the indorsement on the plaintiff’s writ of summons.”

Mr Ahenkorah relies on the word “severally” in the endorsement and the phrase “in terms of the indorsement” in the order for the interpretation put forward by him. It is obvious that if the learned trial judge had awarded damages “in terms of the indorsement” he would have awarded the full sum of ¢5 million claimed on the writ. The phrase can have meaning only if it refers to the injunction and serves to incorporate the description of the land as appearing in the endorsement in the order of the court.

I have found no reason to disturb the judgment of the courts below and would, therefore, also dismiss this appeal.

OSEI-HWERE JSC. When in his dissenting judgment in Yoguo v Agyekum [1966] GLR 482 Lassey JSC made bold to temper the application of the principle in Kodilinye v Odu he must have been looked upon by his brethren as a near-heretic because of its claim to reverence from its eminent height in the jurisprudence of our courts. There he said:

“The principle of law which required that a plaintiff in a case where title to land was in issue must succeed on the strength of his own case must be applied cautiously and reasonably so as not to defeat the real ends of justice in search of truth. Where some evidence of title was given by the plaintiff no matter how indefinite or insufficient it might be, if not rebutted by a better or superior type of evidence, the trial Court was perfectly entitled to consider it, and what weight it decided to attach to it was entirely a matter for it ...”

Some ten years later, in Ricketts v Addo [1975] 2 GLR 158, Lassey JSC stood vindicated by the pragmatic approach of the Court of Appeal to that same principle when it stated:

“The principle that in an action for declaration of title, the plaintiff should not rely on the weakness in the defence case but on the strength of its own case, had its simplest application in the situation where a plaintiff could not on his own make out a case of his title at all and relied on the defects in the defendant’s case to justify his claim to title. However where the plaintiff could put forward some sort of claim to title, the principle then had meaning in practical terms if the defendant had some semblance of a claim to the land ... Whatever the defects in the defendant’s title the plaintiff could not rely on them; he must rely on the superior strength of his own title. Therefore if the defendant’s case was measured against the plaintiff’s and the plaintiff’s was found more probable, a determination which necessarily involved the balancing of the strength and weaknesses of the rival claims, the plaintiff’s case had to be accepted.”

By reason of these strictures, and particularly of the statutory regulation of the burden of persuasion by the Evidence Decree, the time is ripe to topple the principle in Kodilinye v Odu from its Olympian heights.

That done it remains to see that the plaintiff fully described in the witness-box the identity of the lands for which his family claimed exclusive possession. He supported his evidence by a plan. On the contrary, the defendants were woefully ignorant of the identity of the land which they claimed their ancestor gave to the family of the plaintiff. Both courts below were, accordingly, fully justified in finding that the plaintiff had proved the identity of the land. The plaintiff gave evidence that his family have been associated with the land for over 250 years. But for the 1904 proceedings in the case of Bosompem v Martey & Ors wherein the plaintiff’s ancestor, Tettey Kwao, testified on behalf of the defendants’ ancestor, a defendant in that case, the defendants had little knowledge of how the plaintiff’s family came to be on the land.

Tettey Kwao had, indeed, testified that his ancestor came on the land by the licence of the defendants’ ancestor and that his family paid tolls to the defendants. In their defence the defendants pleaded as follows:

“3. Save that since 1904 or thereabouts the defendants’ family the Odai Ntow or Ashong Dzemawong Family have permitted the plaintiff’s family members to enjoy farming rights only free of charge, paragraph 2 of the statement of claim is misconceived and the same denied.

4. In further answer thereto the 1st and 2nd defendants say prior to 1904 the head and members of the plaintiff’s family were paying annual tolls to the defendants’ family. But the collection ceased because the plaintiff’s head of family faithfully assisted the defendant’s family by giving evidence in support of defendants’ family’s title in the case of Bosompem v Martey.”

The above pleading, coupled with the many open acts of the plaintiff’s family on the land without any opposition over the course of years, led to the concurrent finding of fact by the court below that the defendants’ family had abandoned whatever rights it had over the land. In Atta Panyin v Nana Asani II, Atta Panyin v Essuman (Consolidated) [1977] 1 GLR 83, CA, it was held that long possession and occupation of the land in dispute by the respondent-stool and its subjects, subject to the payment of annual tributes to the appellants’ stool as the overlords of the land, conferred a usufructuary title on the respondent-stool and not a mere occupational licence. The respondent-stool was, therefore, held entitled to alienate the land to its tenants and strangers without the consent of the overlords subject to the obligation to provide computable customary services. It was disclosed in that case that some 300 years ago the appellant-stool permitted the respondent stool and its subjects to occupy its stool land subject to the payment of annual tribute and the performance of customary services.

The decision in Atta Panyin v Nana Asani applies with equal force in this appeal involving two families except that here the performance of customary service as a condition was never imposed on the plaintiff’s family and the plaintiff’s family were also forgiven of the annual tribute of tolls. It follows that the plaintiff’s family are free, in pursuance of their usufructuary title, to alienate the land to strangers without subjecting themselves or the strangers to any obligation to the defendants’ family.

But it may be asked whether (barring the acceptance of the view that prescriptive rights can peculiarly ripen into ownership among the Gas) it was permissible to the defendants’ family to encroach upon the land with impunity and make grants of vacant plots to strangers. In my opinion the answer “yea” or “nay” is supplied respectively by the second holding and the obiter to that holding in Mensah v Blow [1967] GLR 424, CA. In that case the original owner of the land in dispute was the appellant’s ancestor who cleared the land of virgin forest and later permitted the respondent’s ancestors and followers to occupy the land. During this long period of occupation no tribute of tolls were demanded or paid and occupation was permitted subject to good behaviour. The main question at issue was whether the owner of land over which he has permitted a licensee to live and farm can exercise his right of ownership or use of portions of this land which have not been specifically appropriated to actual use by the licensee. It was held, inter alia, that:

“(2) A licensee did not in the course of time become an absolute owner of land to the extent of depriving the real owner of the right of user over unoccupied portions of the land. Because the appellant’s ancestors originally cleared the land and did not subsequently abandon it, customary law and practice enjoined the respondent to give way to the appellant as the rightful owner.

Obiter: Had the respondent been able to establish that her ancestors were the first to cultivate the land or that the circumstances were such that although it was the appellant’s ancestors who first cleared the virgin forest they had subsequently abandoned it, then (the respondent) might well have been entitled to claim possession against the appellant”.

The judgment of Jackson J in the Legon Acquisition Enquiry demonstrated that Osu people came to settle at Haatso and Papao. Settlement in a rustic area naturally went with the concomitant right of farming. And so it was, as testified by the plaintiff, that his ancestors, in the customary manner of settling their boundaries, farmed until, they met the neighbouring land-holders, namely Onyatia and Papao on the south, Agbogba on the north, Kwabenya on the west and Madina on the east.

There was no evidence that the defendants’ ancestor who was alleged to have acquired through hunting all that vast land (which the defendants claimed included the lands at Papao, Agbogba, Onyatia, Dome, Kwabenya and other small villages around Ashongman) had cleared the virgin land or had exercised any effective control over the lands by settlement. On the contrary, the finding of abandonment against the defendants’ ancestors injected new dimensions in the rights of the plaintiff’s family over the land by enhancing their original usufructuary title. The answer to the question posed must, accordingly, be “nay”.

It is for these reasons above, as also for the reasons ably discussed in the judgments of my brothers which I have been privileged to read in advance, that I also agree that the appeal be dismissed.

WIREDU JSC. This is an appeal with leave from the judgment of the Court of Appeal dated 23 May 1991. By that judgment the court affirmed a High Court’s decision dated 11 October 1990 in favour of plaintiff-respondent family’s claim for damages for trespass to all that tract of land with the village therein as set out in plaintiff’s writ. The High Court awarded the family ¢1,000,000 damages for trespass and a perpetual injunction in terms as prayed on the writ.

For the purpose of this appeal the plaintiff-respondent will simply be referred to as “the plaintiff” and the defendants-appellants referred to as “the defendants”.

Five main grounds of appeal have been filed and considered in the statement of case presented on behalf of defendants. Matters raised in all the five grounds were put forward and argued by learned counsel for the defendants and considered both at the trial court and Appeal Court and I have had no hesitation in concurring in the conclusion arrived at by the two courts below rejecting the submissions brought by and on behalf of the defendants. I also endorse the reasons for their conclusions.

The facts which seemed to have provoked the present action between the parties are straightforward and devoid of any complexity. The plaintiff’s family on the undisputed facts established by both documentary and oral evidence and accepted by the learned trial judge of the High Court and also affirmed at the Court of Appeal, are Osu subjects who have settled, occupied and controlled the disputed land for over 200 years. Evidence within living memory both oral and documentary also show that they have had exclusive control, possession and occupation undisturbed during this period and had since 1904 exercised such right in their own right without let or hindrance from any quarter.

The family had claimed interest to a portion of the disputed land which became the subject-matter of land acquisition by the Government commonly described as Legon Acquisition in an enquiry conducted by Jackson J in 1951. In that proceeding the plaintiff’s family took part and established their claim under the Osu Mantse. Jackson J found that the plaintiff’s family were in possession of the portion of Haatso lands and confirmed their claim. In exhibit C, The Gold Coast Chiefs List, Eastern Region, tendered in evidence in the present proceedings at page 17 dated 1934-35 it was officially recorded that No 4 Haatso was a village under the Osu Mantse. The plaintiff’s family have since their occupation also settled a number of Osu subjects, erected public buildings including schools and church buildings. They have erected a number of private residential buildings and granted lands to strangers to build houses and for farming. They have exercised acts of ownership over the disputed land. The lands commonly known as Haatso village have become identified with the plaintiff’s family of Osu with well-defined boundaries and the parties to this action are ad idem as to the identity of the land in dispute.

Such was the state of the disputed land when the defendants attempted and actually interfered with the plaintiff’s quiet enjoyment by encroaching on the land and authorising acts of interference with the disputed land. The defendants’ evidence and pleadings show that since 1904 they have had nothing to do with the lands. They do not belong to Osu state and have no boundary with the disputed land either. They do not admit the claim by the plaintiff’s family that they have interfered and also authorised interference with the disputed land. They claim that the plaintiff’s family are their licensees on the land and enjoy their occupation of the disputed land under conditions which the plaintiff’s family are in breach of. They contend that the plaintiff’s family was estopped from denying their title because of the admission made by a former head of plaintiff’s family in the case Bosompem v Martey in 1904 tendered in evidence as exhibit 1. The defence alleges that in exhibit 1 plaintiff’s ancestors used to pay tolls to the defendants’ family but then the payment ceased in 1904 and since then the plaintiff’s family have been enjoying only farming rights on the disputed land.

After hearing evidence in the case the learned trial judge in a well-considered judgment found for the plaintiff’s family. He found the evidence as to the long occupation and the exercising of exclusive acts of ownership in respect of the disputed land so convincing and uncontroverted in any way by the defendants that he held that even if the defence story was true the plaintiff’s family have acquired prescriptive title to the disputed land; a method of acquisition recognised under Ga customary law and practice.

He also found that the defendants by lapse of time and neglect have abandoned whatever interest they had in Haatso land. It is of significance to note that until recently and the events which led to the plaintiff’s action, facts, established by evidence both oral and documentary, reveal exclusive control, management, possession and exercise of acts of ownership, such as building houses, farming and settling of strangers on the land had been the exclusive preserve of the plaintiff’s family. There is also no well established evidence to show what interest the defendants’ ancestor Ntow Ashong acquired in the disputed land. He on the evidence is admitted to have hunted in areas including the one in occupation of the plaintiff’s family but there is no evidence that he ever settled anywhere on the disputed land itself.

So the events at the time of the commencement of the action reveal possession, occupation, control and management of the disputed land as the exclusive right of the plaintiff’s family. These activities of the plaintiff’s family are inconsistent with the conditions claimed by the defendants as governing the relationship between their family and the plaintiff’s family regarding the use and occupation of the land. The defendants are total strangers to the disputed land. They do not know its boundaries by name and have never had anything physically to do with the land since the plaintiff’s family occupied it. The plaintiff’s family have established their claim to lands at the Legon Acquisition Enquiry.

They have enough evidence to rely on to establish their ownership and trespass to their credit and I do not see any justification in any of the grounds urged on behalf of the defendants to justify a reversal of the two judgments in their favour. I hold in my judgment that I am not persuaded by any of the grounds filed on their behalf to justify interfering with the judgments of the courts below.

On the available and admitted facts I have come to the conclusion that the action in this case is in reality one of trespass.

I have carefully considered the statements filed in court on behalf of the parties. I have also carefully considered the evidence and the two judgments in the case and I have been unable to persuade myself that the judgments appealed from are wrong. The learned trial High Court judge as well as the judges of the appeal court rightly dealt with the matter in the light of the available materials both oral and documentary and rightly, in my view, upheld the plaintiff’s claim.

Quite apart from the finding of prescriptive title in plaintiff’s favour I will approach this matter in the light of the decision in Kwaku v Brown (1913) Ren 683 and in Dua v Tandoh PC (1874-1928) 109.

In the Brown case Sir Brandford Griffiths CJ (Digest page 106) wrote:

“Where there is so much uncertainty and so much indefiniteness, and where land has until recently been practically of no value, all that the Courts can do, and what they ought to do, is to accept accomplished facts, whatever may have been the state of things 200 years ago.”

In Dua v Tandoh PC (1874-1928) 109 Lord Buckmaster said his judgment was far more influenced by actual facts, as you would find them when the dispute began, than by tradition.

It seems to me that clear facts exist in this case to hold title in plaintiff’s family. In the case of England v Palmer (1959) 14 WACA, at page 659, it was held that in a trespass action an averment of ownership is consistent with and amounts to an averment of possession, for ownership may be proved by proof of possession and any allegation in such an action that the plaintiff is owner puts possession and not ownership in issue as possession is all that needs be proved.

It was submitted on behalf of the defendants that on the authority of Lawer v Kwami (1958) 3 WALR 473 the plaintiff assumed the burden of proving that the defendants have become divested of their original title since the predecessors of the plaintiff herein admitted that title in the defendants’ family. The short answer to that submission is that by the adverse possession to the disputed land by the plaintiff’s family over the years the rights of the defendants to such land had become extinguished under the Limitation Decree, since under section 12 of NRCD 54 the defaulters cannot maintain an action to recover the land. This same assertion on behalf of the defendants negates their claim that the plaintiff’s family was unable to show the identity of the disputed land with such clarity as to justify their succeeding in a title dispute. If the identity of the disputed land is not clear how could the defendants claim that the plaintiff’s family have admitted their original title. In respect of what land did they admit the defendants’ title? The answer is that the identity of the disputed land is not in issue and the parties are ad idem to its identity. In the result the judgment appealed from is unimpeachable and the appeal accordingly fails.

Appeal dismissed.