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JUDGMENT
ANINAKWAH J.A.
The Appeal is from the
judgment of His Honour A. Oppong Circuit Court Judge
Accra, dated 11th day of July, 2002.
By the said judgment
the trial judge granted all the reliefs sought by the
Plaintiff-Respondents (hereinafter referred to as the
Plaintiffs).
Granting the reliefs
the trial judge stated- 'Upon the foregoing it is my
judgment that the land under consideration belongs to
Otu Kofi family.
I therefore, order
defendant to account to the head of the family (1st
Plaintiff herein) all proceeds by way of rent collected
from the date of the receipt of the letter Exhibit "C"
which appears to be 1st June 2000 when exhibit "D" was
written.
I order perpetual
injunction restraining defendant his agents assigns etc
from dealing in anyway with the property. In effect the
caretakership of defendant is hereby terminated with
immediate effect. Plaintiffs shall have their costs
assessed at ¢1.2 million against the defendant"
The decision and order
made follow a careful evaluation and assessment by the
trial judge of the evidence on record .
The Defendant-Appellant
(hereinafter referred to as Defendant) is aggrieved and
or dissatisfied with the said judgment of the trial
judge and has filed this appeal against same and
inviting the court to reverse the judgment in his
favour.
Defendant's appeal is
on two grounds namely:— "that the learned Circuit Judge
erred in holding that the property in question is a
family property of Otu Kofi.
(2) Later Defendant
filed additional ground thus: "The Learned Circuit Judge
erred in law in holding that the parties were 'ad idem'
with regard to the identity of the land and therefore,
the onus of proof required by law as regards the
identity of land in dispute has been discharged".
One of the main
purposes of an appeal is to correct errors and the
defendant saying that the trial judge has erred has
taken upon himself the onerous task of demonstrating to
court that the trial court either failed to consider
very essential or relevant evidence on record or
misapplied the law. More so as in the instant case where
the appeal is against the findings of fact made by the
trial judge.
The Defendant has to
persuade the court that the findings of the trial
Circuit judge were either improperly made or not made in
accordance with the law.
On the defendants'
ground (1) that—The learned Circuit Judge erred in
holding that the property in dispute is a family
property of Otu Kofi,
It is the submission of
the defendant that this is so because as he/put it there
is no evidence on record connecting the land in question
to the family of Otu Kofi"
Having so stated, the
defendant goes on to make further submissions which I
find to be contradicting his own stand and, therefore,
not supportive of his case.
The defendant states
that the only evidence on record emanates from the third
plaintiff, Rudolph Otoo. 3rd plaintiff according to
defendant referred to Exhibit "B" paragraph "6" as the
source of his claim.
In fact, it is on the
same evidence of the 3rd plaintiff that the trial judge
relied to support his finding. The 3rd plaintiff's
evidence which supported the trial judge's finding read
as follows: 3rd plaintiffs evidence is that the land
belonged to the late Otu Kofi. He made a device of it
(see paragraph "6" of Exhibit "B").
After his death, 3rd
plaintiff testified further that, his father and another
uncle managed the property on behalf of the family and
it was defendant who collected rents and accounted to
3rd plaintiffs father."
This piece of evidence
was admitted by the defendant when he did say that the
land belonged to one Joseph Kabu Otoo who according to
the evidence on record was the father of the 3rd
plaintiff.
Defendant admitted
further that he and other tenants pay rent currently to
Alex and Nora Otoo who are brothers and sisters to 3rd
plaintiff and cousins to the rest of the plaintiffs. It
can be observed that the Defendant himself did not know
the real owners of the land. When Defendant was asked a
question that the land does not belong to Joseph Kabu
Otoo solely defendants answer was that—"I do Not know"
Again the trial judge found it strange that when action
was taken against the Defendant by the Plaintiffs, both
Alex and Nora Otoo to whom Defendant was paying the rent
on the land were identified in Court yet they failed to
give any protection or assistance to Defendant. This is
suggestive of the fact that the two Alex and Nora Otoo
knew that whatever they did by accepting the rents on
the land from the defendant was so done in concealment
from the family, and did not have the family's approval.
Defendant is not a member of Otu Kofi's family, in fact,
a total stranger, and could not determine who the
members of the family are, and what properties belong to
the family.
By the additional
ground i.e. " The learned Circuit judge erred in law in
holding that the parties were "ad idem" with regard to
the identity of the land and therefore the onus of proof
required by law as regards the identity of land in
dispute has been discharged". The Defendant is
understood to be saying that plaintiffs failed to
identify the land in dispute. Plaintiffs in the instant
case were not claiming title to the land. Their claims
were for Accounts and an injunction. Even though a claim
for injunction postulates that the claimants — i.e
plaintiffs are the owners of the land the subject matter
in dispute. See the cases of KWABENA V; ATUAHENE (1981)
GLR P.136 and Anane vs: Donkor (1965) GLR 188.
In our instant case,
there was no dispute as to ownership of the land between
the plaintiff and the defendant. Plaintiffs asserted
ownership as per the evidence of the 3rd plaintiff. They
claimed that defendant was their caretaker.
Defendant in his
evidence admitted being a caretaker for some members of
the plaintiffs' family - Alex and Nora Otoo. Defendant
did say in his evidence that His caretakership dated
from 1960 when he was caretaker for the late Joseph Kabu
Otoo.
With the Court's
finding that Plaintiffs are members of the late Otu
Kofi's family and the land in dispute which defendant
admits being the caretaker thereof, he remained the
caretaker for the plaintiff's family. Defendant's
caretakership puts him in a position of an agent of the
plaintiffs.
He does not deny
knowledge of the identity of the land in dispute. His
knowledge can therefore, be imputed to that of the
plaintiffs, to support the findings of the trial judge
appealed against by the defendant.
I therefore, find that
the findings of the trial judge are borne out of the
evidence.
I find no strong urge
on the Court to disturb the said findings.
On the totality of
matters above stated and together with other reasons
given by the trial judge, I dismiss the appeal.
(SGD.)
R.T. ANINAKWAH
JUSTICE OF THE APPEAL
OMARI-SASU J.A.
I agree.
K. OMARI-SASU
JUSTICE OF THE APPEAL
ASARE-KORANG J.A.
I also agree.
A. ASARE-KORANG
JUSTICE OF THE APPEAL
COUNSEL
THOMAS HUGHES FOR
RESPONDENTS
A.R.C. VON FLEISCHER
FOR APPELLANT
EAS. |
