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JUDGMENT
BROBBEY J. A.:
This case of the
appellant who was the plaintiff at the trial court was
that he was one of ten Akuapem citizens who acquired
virgin forest in 1954 at a place called Atom on Nkawie
and Nyinahin stool lands. The lands were granted to
them by Nana Kwasi Duah and Nana Kofi Marfo, chiefs of
Nyinahin and Nkawie respectively. They were actually
demarcated for them by the chief of pomaakrom with the
authority of the chiefs of Nkawie and Nyinahin.
The appellant averred
that he developed his portion of the land by making farm
and planting cocoa trees. He even gave part of his land
to one Kwame Tano testified as PW1.
The appellant described
the boundaries of his land by naming his boundary
owners. He added that in 1978 a surveyor who demarcated
its actual boundaries made a plan of his land for him.
According to the
appellant, Kwame Tano said his father had given him land
to farm upon. That was in 1981. While working on the
land of the appellant before 1981 Kwame Tano used to be
assisted by the first respondent. Therefore when Kwame
Tano decided to quit the land of the appellant, the
first respondent requested to be allowed to continue
farming on the land. The requested was granted. It was
while he was farming on the land that the dispute arose
was that dispute culminated in this litigation.
The respondents in this
appeal were the defendants at the trial court. They were
three at the time they filed their defence. The third
defendant died in the course of the trial. The evidence
indicated that the second defendant succeeded him but
the record did not show that there was a formal motion
for substitution. Since he was not legally substituted,
the judgment of the trial court and the judgment in this
court bind only the first and second respondents.
The defence of the
defendants/respondents was that they admitted that some
ten Akuapem citizens acquired some tracks of land at
Atom. They however denied in their pleadings that the
disputed land was included in the land of the Akuapem
people. Rather they averred that the first respondent
was found farming on the disputed land. He was queried
by one Kwasi Addai, who was then the Odikro of Atom as
to how he acquired that land. He explained that the PW1
gave him the land. According to the first respondent,
the PW1 had gone to his hometown at Akanten. He
therefore went Akanten and called him before the Odikro
and his elders and the PW1 then explained that the land
was given to him by his (the PW1’s) father. The Odikro
and his elders rejected the explanation. The Odikro then
entered into an abunu tenancy agreement with the first
respondent in respect of the disputed land. As far as he
was concerned, the land belonged to the Odikro of Atom
and not the appellant.
After the trial, the
High Court judge dismissed the appellant’s claim and
entered judgment for the respondent. The appellant then
appealed against that judgment to this court, initially
on the omnibus ground that the judgment was against the
weight of evidence. Five additional grounds were later
filed. By a unanimous decision of this court, the appeal
was allowed on the 7th October 1999. These are the
reason for that decision.
In sum, trial judge
dismissed the appellant’s case on three main grounds,
namely, that
1. The appellant did
not know the extent of his land
2. The appellant was
not in possession of the disputed land
3. The appellant
adduced traditional evidence and therefore assumed a
higher onus of proof equivalent to proof in criminal
cases but he failed to establish that proof.
Not surprisingly
therefore, the appellant's first additional ground of
appeal was that
“The learned High Court
Judge misdirected himself in law and in fact by holding
that the plaintiff did not know the extent of his land,
when the Plaintiff and Defendant were ad idem as to the
identity of the land in dispute and so the question of
the extent of that land was irrelevant”
There can be no doubt
that the trial judge erred in his finding that the
appellant did not know the extent of his land. The
second and third respondents conceded in their pleadings
that the disputed land formed part of the land given to
the Akwapim citizens. Even the first respondent who made
no formal admission in his pleadings eventually conceded
under cross-examination that the disputed land was
included in the land given to the Akwapim tenant
farmers. In his testimony in court, the DW3 told the
trial court that he was among those who demarcated the
land to the Akwapim tenant farmers and he subsequently
saw the appellant working on it. He too confirmed that
the disputed land formed part of the land given to the
Akwapim citizens. All these showed that the parties and
witnesses were fully aware of the boundaries of the
disputed land otherwise they would not have known that
it formed part of the land given to the Akwapim people.
The reply of counsel
for the respondent on this issue simply did not answer
the point at stake. The evidence on record did not
support his point that the first respondent was assigned
a virgin forest. Exhibit 1 which he relied on not
override the strong evidence led by the appellant and
his witnesses that when the Odikro re-allocated it to
the first respondent the land was already in the
possession of the first respondent by virtue of the
permission which he the appellant gave to the first
respondent through the PW1. The second point made by
counsel for the respondent was that:
“under customary law
cultivation practice, a yielding cocoa farm caretaker is
different from an abunu tenant (and) the appellant could
not have engaged the first defendant as an abunu tenant
for cocoa planted by Kwame Tano between 1969 and 1980.”
That point is
incomprehensible. If his view was that the first
respondent was given virgin forest, how could he argue
that the same virgin forest was “cocoa yielding”? In any
case his point that cocoa yielding farm could not be the
subject matter of the abunu tenancy has no basis at
customary law. It was no wonder that he cited no
authority for that proposition. Abunu tenancy is a
matter of agreement between parties and nothing prevents
the owner of the cocoa growing land from giving the land
out on abunu tenancy basis, if he so desires, and the
caretaker is willing to accept it. In any case, Exhibit
1, which the respondent railed on, related to abunu
tenancy but covered cocoa growing land as the first
respondent stated in evidence in chief.
A serious point in the
evidence which escaped the attention of the trial judge
was the fact that the appellant called his boundary
owners to show his boundaries with them when he was
proving the extent of his land. The well established
rule is that in the absence of undisputed survey plan or
other documentary evidence, boundary owners are the best
source of evidence to determine boundary: see ADWUBENG
VRS. DOMFEH (1996 – 87) SC GLR 668 at (672 –673). The
trial judge therefore erred when he used the fact of the
boundary owners as evidence that appellant did not know
his own boundaries or extent of his land. Rather, that
evidence should have been considered as more positive
proof of the appellant's boundaries.
The appellant's second
ground of appeal is that “the learned judge erred in law
by admitting the document marked Exhibit 1 and relying
on it when it had not been registered.”
As counsel for the
appellant argued in his statement of case, Exhibit 1
should not have been given the weight assigned to it by
trial judge by reason of the Land Registration Act, 1962
Act 122), s24(l): as explained and applied in NARSTEY
VRS. MECHANICAL LLOYD (1987 - 88) 2GLR 314, SC and
ODAMETEY VRS. CLOCUH (1987-90) 1GLR 14 SC.
Counsel for the
respondents did not react to that well founded
submission against Exhibit 1. In support of Ex.1, he
argued that the exhibit was valid because the Odikro of
Atom had the customary rights to grant virgin forest on
his stool land which had remained uncultivated from
1954-1975. The fallacy in that none of the parties
testified that the Odikro granted the land to the first
respondent because it had remained uncultivated from
1954 to 1975. It is not the duty of counsel to bridge
gaps in the case of litigants by arguments based on
evidence not put before the trial court. If the point
had been raised that the land had been uncultivated from
1954-975 no-one could anticipate what the appellant or
his witnesses would have said by way of reply. His
argument was therefore speculative. In any case how
valid will his argument be that the land remained
uncultivated from 1954-1975 when the first respondent
himself told the trial court that he assisted PW1
several years before he left the land to him and it was
while he was working on the land that the Odikro
questioned his presence on it?
The basic issue in this
case is one of possession. The trial judge clearly held
that the appellant was not in possession of the disputed
land. The validity of that finding depended on the
credibility of the appellant and the validity of Exhibit
B on one hand and on the other hand, the credibility of
the first respondent and the validity of Exhibit
All the parties were
agreeable that the appellant was one of the Akwapim
citizens who were given land at Atom village. The
evidence also showed that the disputed land was included
in the land given to them. There was also convincing
evidence that the first respondent and some boundary
owners participated in the making of Exhibit B when a
surveyor went to the land to survey it in preparation
for Exhibit B. Thus far, the case of the appellant could
hardly be faulted. In addition to these the very PW1
through whom the first respondent claimed to have first
entered the land testified on behalf of the appellant
that the land was given him by the appellant and no-one
else. Most importantly, the Chief of Nkawie who was one
of the owners of the land in the disputed area confirmed
that it was the appellant who acquired the land from the
owners.
On the other hand the
story of .the first respondent bristled with serious
inconsistencies, which rendered the defence of the 1st
and 2nd respondents almost impossible. It was therefore
seriously discredited. Some of the pieces of evidence
highlighting the conflict and consistencies were these:
In particular the first respondent stated in his
evidence that the PW1 took him to the disputed land in
November 1974. He added that in 1976 the PW1 left Atom
to his hometown in Akanteng and stayed there
continuously for nine years from 1976. If he left in
1976 and stayed there continuously for nine years how
could he, the same first respondent, be believed when he
told the court that the PW1 was in his hometown and he
had to call him from there at the instance of Atom
Odikro to explain how he came by the land and when his
explanation was found unsatisfactory, Atom Odikro
reallocated the disputed land to him in 1975? Exhibit 1
stated that the reallocation was made in
1975.
How
could the PW1 have gone to his village in 1976 to be
recalled from there—prior to the making of Exhibit 1
dated 1975? When counsel for the appellant submitted
that Exhibit 1 was void ab initio, there was a lot to be
said in favour of that submission.
The story of the first
respondent as a whole was not credible. By his own
showing, he went to stay with the PW1 as a young man
aged about 14 years or 18years.
At that time he merely
assisted the PW1 to make the farm and later was placed
on an apprenticeship as a tailor. At the time he was
assisting the PW1 it was the PW1 himself who was in
charge of the land and the farm. The PW1 told the court
that he obtained the land from the appellant. The first
respondent said that he had been informed by the PW1
that it was his father who owned the land. When the
trial judge had to decide the credibility of the adult
farmer in charge of the farm as against a teenage farm
help, surely he could not be right in preferring the
latter to the former.
The first respondent
said the PW1 told him that the land belonged to the
PW1’s father. He added that the real complainant was the
PW1's father. The PW1 would not have been called from
his hometown if he was not the one who gave the land to
the first respondent. In fact the first respondent said
the father was alive even at the time he testified in
1994. While the real owner was alive and around the
place where the dispute was being settled, there was no
need to have called the PW1 from his hometown and yet
the first respondent insisted that he was the one who
called him from his hometown.
In addition to all
these, the claim of the second respondent that the
disputed land was under the paramountcy of the Akodie
stool was challenged by the appellant and his witnesses
and yet the defendants/respondents called no one to
testify in support of their assertion even though the
stool of Akodie should obviously have had an occupant at
the time the trial was going on. The trial judge should
not have believed the respondents, especially the second
respondent, who claimed to have succeeded the original
Odikro of Atom village. Although he tried to hedge under
cross-examination his evidence showed that the Atom
village was under Nkawie and Nyinahin stools until 1982
when he claimed that it was placed under the Akodie
stool. Even if his story was correct, those who had
acquired rights under the original paramountcy could not
be dispossessed of those rights merely because Atom
village had been placed under Akodie stool. The new
paramountcy took over the rights and liabilities of the
village brought under it but not only their assets.
In support of their
cases the respondents called the DW1. His evidence did
not advance their case in any serious manner because he
testified of even after 1991 while the issue of
ownership was contested from 1954. Similarly the
evidence of the DW2 did not help the respondents since
he testified on events after the second respondent had
decided to re-allocate the land to the first respondent
but not on the actual events touching on the acquisition
of the land in 1954 or from 1974 to 1975.
All these established
beyond any doubt that the appellant was the one who was
in possession of the disputed land throughout the DW1
and who later introduced the first respondent there.
That also showed that indirectly the first respondent's
possession was on behalf of the appellant.
In his evidence, the
first respondent told the court that after the
re-allocation the second respondent sent the land to be
demarcated for him and “the land they showed me was the
same land given to me earlier on by Kwame Tano (PW1)
The PW3 who was among
those who were originally sent by the predecessors of
the second respondent to demarcate the land in 1954 said
finally under cross-examination “I now say that the land
in dispute is within the land given to the Akwapim
tenant farmers.”
The allocation of the
land to the appellant by the predecessors of the second
respondent was binding on the second respondent and his
stool elders. They therefore had no title to the land
already given away by their predecessors. As counsel for
the appellant rightly put, it was a clear case of “Nemo
dat quod non habet.” That was similar to the
reallocation of lands at Botianor by the new occupant of
the James Town stool after his predecessor, Nii Adja
Kwao II had granted the same lands to Vanderpuye Orgle
Estates. On the decision whether or not the
re-allocation was valid the Supreme Court held that the
grants made by Nii Adja Kwao were valid and binding on
the James Town stool. See REPUBLIC vrs. LANDS
COMMISSIONS; EXPARTE VANDERPUYE ORGLE ESTATES. Supreme
Court, Civil Appeal No.15/96, dated 13th January 1999,
unreported.
This case supports the
view that the actions of the predecessors of Atom
village in granting the lands are binding on the new
Odikro of Atom village in the person of the second
respondent.
On the third ground of
appeal the record did not disclose that the appellant
led traditional evidence. Even if he did, the law had
long been settled that in civil proceedings the onus of
proof remains on the balance of probabilities. The
Evidence Decree, 1975 (NRCD 323), requires proof by a
“preponderance of probabilities” which has been defined
on s. 12(2). In SERWAH vrs. KESSE (1960) GLR 227 and
228, the Supreme Court held that proof in a civil case
is less than that on the prosecution in a criminal
trial. Cases which have equated proof in civil cases
with proof in criminal cases are per incuriam because of
the provisions in NCRD 323 and SERWAH vrs. KESSE and may
not be followed. The trial judge consequently erred in
his statement that the appellant assumed a higher
standard of proof beyond reasonable doubt. Proof of the
traditional evidence is not one the exceptions to the
rule that in civil cases, proof is by a balance of
probabilities or on a preponderance of probabilities.
Two findings made by
the trial judge on the admissibility of Exhibit 1 and
alleged “nefarious conduct” were the subject matters of
grounds four and five of the grounds of appeal. His
finding that Exhibit 1 was not objected to was not borne
out by the evidence. The record showed that it was
objected to and he had to rule on the objection after
hearing arguments from counsel. The second finding of
“nefarious conduct” on the part of the appellant was not
explained. There was nothing “nefarious” about an
Akwapim citizen taking land in Ashanti or Brong-Ahafo
and leaving it in the hands of a caretaker. And surely,
there was nothing wrong or “nefarious” with that tenant
with that tenant farmer insisting on his rights and
fighting to recover land wrongly wrestled from him and
re-allocated to a man who was his own caretaker but had
turned round to virtually stab him in the back by
accepting a reallocation of the very land entrusted to
him to take care of. If any conduct in this case to be
described as “nefarious”, the expression “nefarious
conduct” befits the first respondent more than any other
litigant or witness in this case.
At the end of the
trial, the evidence disclosed beyond doubt that the
first respondent was placed on the land by the appellant
but through the PW1. He clearly challenged the authority
or title of his landlord or landlords by stating
categorically that the land belonged to the second
respondents. He therefore forfeited his right to
continue being on the land because from the evidence the
land did not belong to the second respondent.
It was for all the
foregoing reasons, that the court allowed the appeal and
entered judgement for the appellant. The appellant was
the one entitled to the disputed land. The first
respondent should render accounts on his operations on
the land as per the original writ of summons. Order of
perpetual injunction is also made for the appellant
against the respondents in respect of the disputed land
but within the terms of the original agreement on the
land made in 1954.
The record shows that
there were efforts to amend the writ of summons or
endorsement on the writ. There was no evidence of the
motion for amendment having been argued before the trial
court. Those amendments will not therefore be taken in
substitution of the original writ. The judgment is given
in the terms of the original writ issued on July 1991.
S. A. BROBBEY.
JUSTICE OF APPEAL.
WOOD J. A.
I agree.
G. T. WOOD (MRS)
JUSTICE OF APPEAL
ARYEETEY J.
I agree.
B. T. ARYEETEY
JUSTICE OF APPEAL. |
