Land - Ownership - Declaration
of title - Recovery of
Possession - Whether
or not plaintiffs adduced
sufficient evidence at the trial
for a finding to be made in
their favour -
HEADNOTES
In 1985 plaintiffs acquired
another parcel of land adjacent
to their land from Madam Abena
Asi, a grantee of the Abola Piam
(Tunma We) family. This second
grant is covered by two
documents registered as Nos.
507/1986 and 508/1986.
Plaintiffs went into possession
of the lands, built a two-room
house thereon and placed a
caretaker in it. Much later, the
1st
defendant/appellant/respondent,
hereafter referred to as 1st
defendant started making adverse
claims to the land plaintiffs
acquired from Madam Abena Asi.
In 2004, plaintiffs wall on the
disputed portion of the land was
pulled down and they attributed
it to 1st defendant
but she denied being
responsible. Plaintiffs
therefore sued in the High
Court, Accra claiming against 1st
defendant declaration of title,
damages for trespass, special
damages, perpetual injunction
and recovery of possession. 1st
Defendant in her amended
statement of defence, claimed
that her mother acquired the
land in dispute from both Abola
Piam family and Sempe Stool.
Sempe Stool later joined the
case and counterclaimed among
other reliefs for a declaration
that they are the allodial
owners of Sowutuom lands and not
the Abola Piam family.
Defendant further contended that
plaintiffs grant from Madam
Abena Asi was fraudulent as
there was no person called Madam
Abena Asi from whom plaintiff
acquired the land covered by
document No. 508/1986. In his
judgment, the trial High Court
judge held that Abola Piam
family are the allodial owners
of Sowutuom lands. He also held
that defendants were not able to
prove the fraud alleged against
plaintiffs in respect of the
land purchased from Madam Asi.
The High Court rejected 1st
defendant’s claim that her
mother ever acquired the land in
dispute from Abola Piam Family.
The High Court therefore entered
judgment for plaintiffs on all
their reliefs except for special
damages-
HELD
Since the
Court of Appeal upheld the
finding that Abola Piam family
are the allodial owners of the
land and Madam Asi’s document
traced it root of title from
Abola Piam family, the court
ought to have given effect to
the documents tendered by
plaintiffs. For the above
reasons we set aside the
judgment of the Court of Appeal
and restore the whole judgment
of the High Court
STATUTES REFERRED TO IN JUDGMENT
Supreme Court Rules, 1996.
(C.I.16) Rule 8(1) (b)
CASES REFERRED TO IN JUDGMENT
ACHORO AND ANOR V. AKANFELA
[1996-97] SCGLR 209;
KOGLEX LTD (NO.2) V. FIELD
[2000] SCGLR 175;
GREGORY V. TANDOH & HANSON
[2010] SCGLR 971
Yorkwa v. Duah [1992 - 93] 1 GBR
278
Agyei Osae v Adjeifio [2007 –
2008] SCGLR 499
BOOKS REFERRED TO IN JUDGMENT
DELIVERING THE LEADING JUDGMENT
PWAMANG, JSC.
COUNSEL
VICTORIA BARTH WITH
HER BENEDICTA ARMAH AND JERRY
DEI FOR THE
PLAINTIFFS/RESPONDENTS/APPELLANTS.
PRINCE FREDERICK NII
– ASHIE NEEQUAYE FOR THE 1ST
DEFENDANT/ APPELLANT/
RESPONDENT.
-------------------------------------------------------------------------------------------------------------------------------------------------
J U D G M E N T
-----------------------------------------------------------------------------------------------------------------------------------------------.
PWAMANG, JSC.
The
plaintiffs/respondents/appellants,
hereafter referred to as
plaintiffs, in 1979 purchased a
parcel of land at Sowutuom in
Accra from the Abola Piam (Tunma
We) family of Accra. The
purchase was covered by a deed
of conveyance which plaintiffs
registered at the Land Registry
as No.2447/1985.
In
1985 plaintiffs acquired another
parcel of land adjacent to their
land from Madam Abena Asi, a
grantee of the Abola Piam (Tunma
We) family. This second grant
is covered by two documents
registered as Nos. 507/1986 and
508/1986. Plaintiffs went into
possession of the lands, built a
two-room house thereon and
placed a caretaker in it.
Much later, the 1st
defendant/appellant/respondent,
hereafter referred to as 1st
defendant started making adverse
claims to the land plaintiffs
acquired from Madam Abena Asi.
In 2004, plaintiffs wall on the
disputed portion of the land was
pulled down and they attributed
it to 1st defendant
but she denied being
responsible. Plaintiffs
therefore sued in the High
Court, Accra claiming against 1st
defendant declaration of title,
damages for trespass, special
damages, perpetual injunction
and recovery of possession.
1st
Defendant in her amended
statement of defence, claimed
that her mother acquired the
land in dispute from both Abola
Piam family and Sempe Stool.
Sempe Stool later joined the
case and counterclaimed among
other reliefs for a declaration
that they are the allodial
owners of Sowutuom lands and not
the Abola Piam family.
Defendant further contended that
plaintiffs grant from Madam
Abena Asi was fraudulent as
there was no person called Madam
Abena Asi from whom plaintiff
acquired the land covered by
document No. 508/1986.
In
his judgment, the trial High
Court judge held that Abola Piam
family are the allodial owners
of Sowutuom lands. He also held
that defendants were not able to
prove the fraud alleged against
plaintiffs in respect of the
land purchased from Madam Asi.
The High Court rejected 1st
defendant’s claim that her
mother ever acquired the land in
dispute from Abola Piam Family.
The High Court therefore entered
judgment for plaintiffs on all
their reliefs except for special
damages.
Defendants appealed to the Court
of Appeal against the judgment
of the High Court. The Court of
Appeal upheld the finding of the
High Court that Abola Piam
Family is the allodial owners of
Sowutuom lands . They also
agreed with the trial court that
defendant could not prove any
title to the land through Abola
Piam family. In their judgment
the Court of Appeal affirmed the
finding of the trial High Court
that defendant failed to prove
that plaintiff’s acquisition of
the land from Madam Abena Asi
was fraudulent but stated as
follows at pages 444 to 445 of
the record:
“The judge also said the fact
that Madam Asi was not called by
respondents to testify for them
does not necessarily impute
fraud in the transaction. We do
not fault him for that
conclusion, yet the fact still
stands that the respondent could
not lead any further positive
and credible evidence to
establish or prove that they
purchased land from Madam Abena
Asi. That issue has not been
proven to our satisfaction that
indeed the respondent purchased
that land from Madam Abena Asi.
Except repeating same on oath in
the trial, no further evidence
was led to establish that
assertion. The respondent is
therefore not entitled to
declaration of title to those
two plots with Land Registry No.
507/1986 and 508/1986 allegedly
bought from Madam Abena Asi.”
Being dissatisfied, the
plaintiffs have filed this
appeal to the Supreme Court and
have stated two grounds of
appeal as follows;
i.
The learned Justices of
the Court of Appeal misdirected
themselves on the law and
occasioned a grave miscarriage
of justice when they held in the
face of overwhelming evidence to
the contrary, that Appellants’
failure to call Madam Asi as a
witness implied that they had
not established their title to
the land in dispute.
ii.
The learned Justices of
the Court of Appeal erred in law
and occasioned a grave
miscarriage of justice when they
held that even where plaintiff
is already in possession and
both parties seek declaration of
title to land and are unable to
establish title, then the
plaintiff’s claim is deemed to
have been dismissed.
iii.
Further grounds of appeal will
be filed on receipt of the
Record of Appeal.
No
additional grounds of Appeal
have been filed.
We
shall consider the grounds of
appeal together.
The issue which falls to be
determined in this appeal is
whether or not plaintiffs
adduced sufficient evidence at
the trial for a finding to be
made in their favour to the
effect that Madam Abena Asi
acquired the land in dispute
from Abola Piam Family and later
sold it to plaintiffs. At page
57 of the record 2nd
plaintiff, who testified for
plaintiffs said as follows on
oath in her evidence-in-chief:
“Apart from this land my husband
and I have three other plots
registered in the same area. We
acquired the land in dispute
about 1982/85. We got this land
from Madam Asi who bought the
plot at the same time as we were
buying our first plot in the
area. Madam Asi acquired the
land from the Abola Piam Tunma
We. We have registered document
on the land. I wish to tender
in evidence.”
The documents from Madam Asi
which are registered were
tendered as Exhibits ‘B’ and ‘C’
to be found at pages 335 and 338
of the record of appeal. We
like to draw attention to the
oath of proof of execution
contained in Madam Asi’s deed of
transfer to plaintiffs at page
339 of the record. It reads as
follows:
“I
E B. Addo of Accra make oath
and say that on the 28th
day of August 1985, I was
present and saw Madam Abena Asi
duly execute the instrument now
produced to me and marked ‘A’
and that the said Madam Abena
Asi can read and write.
Sworn at Accra this 28th
day of
January 1986
Before
me
DEPONENT (SGN)
REGISTRAR OF LANDS”
Now let us consider the evidence
proffered by the defendant who
stated in her pleadings that
Madam Abena Asi does not exist.
This is what defendant stated in
her evidence-in-chief at page
220 of the record concerning
Madam Abena Asi:
“The plaintiffs say they bought
the land from one Mad. Asi. I
have never heard of that name in
the area.”
That is all defendant’s evidence
about Madam Abena Asi.
From the pleadings it was the
defendant who alleged that Madam
Abena Esi does not exist so the
burden of proof was on her. She
offered to prove the negative
i.e. the non-existence of Madam
Asi but she did not proffer a
scintilla of evidence in proof
of her averment. On the other
hand, plaintiffs tendered
documentary evidence in proof of
the acquisition of the land from
Madam Abena Asi with an oath of
proof which confirmed her
existence at the time of
execution of the title deed.
In
this appeal before us, the
defendants in their statement of
case, have referred to the cross
examination of 2nd
plaintiff by lawyer for
defendants in which she said she
did not personally meet Madam
Abena Asi. That answer did not
absolve defendants from
discharging the burden on them
to prove their averment that
Madam Abena Asi does not exist.
Plaintiffs tendered documentary
proof that Madam Abena Asi
acquired the land from Abola
Piam family and sold it to
plaintiffs.
In
our judgment, there is
sufficient evidence on the
record to support the finding by
the High Court that plaintiffs
acquired the land in dispute
from Madam Abena Asi who
acquired it from Abola Piam We.
The contrary finding by the
Court of Appeal is perverse
having regard to documentary
evidence on the record and we
set same aside and restore the
finding of the High Court.
Where a trial court that heard
the evidence has made findings
based on the evidence and come
to a conclusion in a case, an
appellate court ought not to
disturb those findings except
there is no evidence on the
record to support the findings
or the reasons for the findings
are unsatisfactory. An
appellate court may also reverse
findings of a lower court where
they are based on a wrong
proposition of law or a rule of
evidence or the findings are
inconsistent with documentary
evidence in the record. See the
cases ACHORO AND ANOR V.
AKANFELA [1996-97] SCGLR 209;
KOGLEX LTD (NO.2) V. FIELD
[2000] SCGLR 175; and GREGORY V.
TANDOH & HANSON [2010] SCGLR
971.
In
the face of the documentary
evidence tendered by plaintiffs,
we are at a loss as to the kind
of evidence the Court of Appeal
required plaintiffs to produce
to prove that they acquired the
land from Madam Abena Asi. If
the Court of Appeal was
expecting plaintiff to produce
Madam Abena Asi in flesh and
blood simply because defendant
alleged that she does not exist,
that would be setting a bad
precedent. That would mean that
when one acquires land and a
document is duly executed and
registered, you still need to
keep track of your grantor in
case of a dispute. What would be
the essence of land
documentation if what defendants
contended were accepted?
The law is settled that unless a
document in evidence is invalid
on ground of breach of a statute
or has been shown not to be
authentic, a court of law would
consider it favourably in
preference to inconsistent oral
testimony. See the cases of
Yorkwa v. Duah [1992 -
93] 1 GBR 278 and Agyei
Osae v Adjeifio [2007 – 2008]
SCGLR 499 at 502/503. In
this case the authenticity of
Exhibits ‘B’ and ‘C’ was not
successfully impeached and the
title deeds have been duly
registered under the land
registry laws of Ghana. Since
the Court of Appeal upheld the
finding that Abola Piam family
are the allodial owners of the
land and Madam Asi’s document
traced it root of title from
Abola Piam family, the court
ought to have given effect to
the documents tendered by
plaintiffs.
For the above reasons we set
aside the judgment of the Court
of Appeal dated 18th
July, 2013 and restore the whole
judgment of the High Court dated
8th July, 2011.
But before we are done,
defendant filed an objection to
the appeal stating the Notice of
Appeal in this court was filed
out of time. The record shows
that the Court of Appeal
judgment was given on 18th
July 2013 and the appeal to the
Supreme Court was filed on 17th
October, 2013, that is certainly
within three months as provided
in Rule 8(1) (b) of the
Supreme Court Rules, 1996.
(C.I.16) as amended. The
objection is dismissed as
misconceived.
(SGD)
G. PWAMANG
JUSTICE OF THE SUPREME
COURT
(SGD) W.
A. ATUGUBA
JUSTICE OF THE SUPREME COURT
(SGD) J. ANSAH
JUSTICE OF THE SUPREME
COURT
(SGD) P. BAFFOE -
BONNIE
JUSTICE OF THE SUPREME COURT
(SGD) A. A. BENIN
JUSTICE OF THE SUPREME
COURT
COUNSEL
VICTORIA BARTH WITH
HER BENEDICTA ARMAH AND JERRY
DEI FOR THE PLAINTIFFS/
RESPONDENTS/ APPELLANTS.
PRINCE FREDERICK NII
– ASHIE NEEQUAYE FOR THE 1ST
DEFENDANT/ APPELLANT/
RESPONDENT. |