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Land - Declaration of title -
Recovery of possession - Whether
or not it is
it is the Head of Family who has
capacity to sue and be sued in
matters concerning family
property - Whether or not the
family could in their own right
sue to protect the family
property - Whether or not the
land was granted to the
defendant’s family by the Kpobi
We Family - Whether or not it
was a customary grant or an
agricultural tenancy as both
parties contended
alternatively.- Whether or not
defendant has capacity to
counter-claim for title
HEADNOTES
This case presents a disturbing
picture of three brothers who
decided to resort to the courts
to protect a so-called family
land They therefore decided to
initiate a joint action The
Plaintiffs bring this action for
themselves and on behalf of the
Asua We Family. Though the 2nd
and 3rd Plaintiffs admit that
the 1st Plaintiff is the Head of
their family, they all decided
to join in the action as
plaintiffs instead of allowing
him alone to represent the
family in the action. However,
as time went by, one of them who
is the 3rd Plaintiff, dismantled
the trinity and engaged the
services of a separate lawyer to
represent him alone in the same
suit but based on the same
pleadings filed by the three
jointly. After engaging a
separate lawyer, he attempted
unsuccessfully, to dislodge his
eldest brother as the Head of
Family through his new lawyer
and he had been appointed as the
Acting Head of Family. This move
or attempted ‘coup d’état’,was
scuttled by the 1st and 2nd
plaintiffs who vigorously
opposed the application. Their
opposition compelled the 3rd
Plaintiff to withdraw his
application. Their pleaded case
in brief in their original
Statement of Claim was that the
disputed land, which forms part
of Agbawe Quarter lands, was
founded by their predecessors;
i.e. the Asua We Family of
Oyarifa and La. Sometime later,
the Defendant’s
great-grandfather married one
Adjeley Medda who was the sister
of their great-grandfather.
Their great-grandfather, as a
result of the marriage between
his sister and defendant’s
great-grandfather, permitted
defendant’s great-grandfather to
farm on the disputed land in
consideration of token yearly
dues which he observed After the
death of Defendant’s
great-grandfather, defendant’s
family maintained possession of
the land as their tenants.
Though Plaintiffs’ family has
terminated the tenancy of
defendant’s family, defendant
has refused to give up
possession of the land and is
laying adverse claim to the
land. The defendant denied
plaintiffs claim in an Amended
Statement of Defence and
Counter-Claim His contention was
that the disputed land was
granted to his family (i.e. the
Abentia We Family, which forms
part of the Abafum Quarter of
La) by the entire Kpobi We
Family within the Agbawe Quarter
of La some two hundred (200)
years ago. Defendant maintained
that his family has remained in
undisturbed possession of the
disputed land until somewhere in
the year 2000
HELD
In his
testimony during
cross-examination, the 3rd
plaintiff admitted that the land
in possession of the defendant
and over which he has
counter-claimed for title was
given to defendant’s family by
the Agbawe Quarter but not Asua
We, The above testimony of the
3rd plaintiff during
cross-examination goes to
confirm defendants claim while
it completely destroys their
case. If plaintiffs knew the
said grounds touched on the
weight of evidence adduced at
the trial, then why make them
separate grounds of appeal
without saying anything about
them. The fact that plaintiffs
never mentioned the said grounds
in their written submissions
meant they had abandoned them.
The Court of Appeal was
therefore right in reaching that
conclusion.The appeal before us
is clearly unmeritorious and
same is dismissed.
STATUTES REFERRED TO IN JUDGMENT
Evidence Act, 1975 [NRCD 323]
CASES REFERRED TO IN JUDGMENT
KWAN v NYIENI [1959] GLR 67
AMPONSAH v KWATIA [1976] 2 GLR
189;
YORMENU v AWUTE [1987] 1 GLR 9;
IN
RE ASHALLEY BOTWE LANDS; ADJETEY
AGBOSU & Others v KOTEY & Others
[2003-2004] 1 SCGLR 420
MANU v NSIAH [2005-2006] SCGLR
25
IN
RE NEEQUAYE (DECD); ADEE KOTEY v
KOOTSO NEEQUAYE [2010] SCGLR
348.
ACHORO & Another v AKANFELA &
Another [1996-97] SCGLR 209
KOGLEX LTD (NO. 2) v FIELD
[2000] SCGLR 175
SAH v DARKU [1987-88] 1 GLR 123
LARTEY v HAUSA [1961] GLR 773,
ELIZABETH OSEI v MADAM ALICE
EFUA KORANG [2013] 50 GMJ 26
SUMMEY v YOHUNO & Others [1962]
1 GLR 160.
ADWUBENG v DOMFEH [1996-97]
SCGLR 660;
SARKODIE v F.K.A. CO LTD [2009]
SCGLR 65;
ASANTE-APPIAH v AMPONSAH [2009]
SCGLR 90;
YAA KWASI v ARHIN DAVIES
[2007-2008] SCGLR 580
BOOKS REFERRED TO IN JUDGMENT
DELIVERING THE LEADING JUDGMENT
YAW APPAU, JSC:
COUNSEL
NICK M. AFESI
ESQ. FOR THE
PLAINTIFFS/APPELLANTS
/APPELLANTS.
ERIC NARH ESQ. FOR THE
DEFENDANT/RESPONDENT /RESPONDENT
------------------------------------------------------------------------------------------------------------------
JUDGMENT
-------------------------------------------------------------------------------------------------------------------
YAW APPAU, JSC:
Under customary law, which is
part of the common law of Ghana,
it is axiomatic that it is the
Head of Family who has capacity
to sue and be sued in matters
concerning family property. The
only exceptions to this rule
have been well-established in
the cases of KWAN v NYIENI
[1959] GLR 67 @ 68; AMPONSAH v
KWATIA [1976] 2 GLR 189; YORMENU
v AWUTE [1987] 1 GLR 9; IN RE
ASHALLEY BOTWE LANDS; ADJETEY
AGBOSU & Others v KOTEY & Others
[2003-2004] 1 SCGLR 420 @ 423;
MANU v NSIAH [2005-2006] SCGLR
25 and IN RE NEEQUAYE (DECD);
ADEE KOTEY v KOOTSO NEEQUAYE
[2010] SCGLR 348.
This Court in the IN RE ASHALLEY
BOTWE LANDS case cited (supra)
explained the principle as
follows: “the general rule
recognised in Kwan v Nyieni,
namely, that the head of family
was the proper person to sue and
be sued in respect of family
property was not inflexible.
There are situations or special
circumstances or exceptions in
which ordinary members of the
family could in their own right
sue to protect the family
property, without having to
prove that there was a head of
family who was refusing to take
action to preserve the family
property. The special or
exceptional circumstances
include situations where: (a) a
member of the family had been
authorised by members of the
family to sue; or (b) upon proof
of necessity to sue”.
This case presents a disturbing
picture of three brothers who
decided to resort to the courts
to protect a so-called family
land but were not ad idem as to
who out of the three was to
represent them in the family
suit. They therefore decided to
initiate a joint action in their
names; viz. Samuel Oblie (1st
Plaintiff), Christopher Oblie
(2nd Plaintiff) and Mensah Oblie
(3rd Plaintiff).
Paragraphs 1, 2 and 3 of their
Statement of Claim filed on
8/8/2001 read as follows:
“1. 1st Plaintiff is
the Head of the Asua We Family
of Oyarifa and La.
2.
2nd and 3rd Plaintiffs are
principal members of the Asua We
Family.
3.
The Plaintiffs bring this action
for themselves and on behalf of
the Asua We Family.”
Though the 2nd and 3rd
Plaintiffs admit that the 1st
Plaintiff is the Head of their
family, they all decided to join
in the action as plaintiffs
instead of allowing him alone to
represent the family in the
action. However, as time went
by, one of them; i.e. Mensah
Oblie who is the 3rd Plaintiff,
dismantled the trinity and
engaged the services of a
separate lawyer to represent him
alone in the same suit but based
on the same pleadings filed by
the three jointly. He did not
assign any reasons for doing so.
After engaging a separate
lawyer, he attempted
unsuccessfully, to dislodge his
eldest brother Samuel Oblie who
is the Head of Family from his
family seat by filing a motion
in the trial High Court through
his new lawyer that the 1st
Plaintiff had been removed as
the head of family and he had
been appointed by the family in
his place as the Acting Head of
Family. This move or attempted
‘coup d’état’,was scuttled by
the 1st and 2nd plaintiffs who
vigorously opposed the
application. Their opposition
compelled the 3rd Plaintiff to
withdraw his application.
Notwithstanding the fact that
the 3rd Plaintiff withdrew the
application and maintained his
position as a principal member
of the family, he stuck to his
lawyer and conducted the case
separately from his two elder
brothers with whom he initiated
the joint action; a step, which
invariably did not help the
course of the Plaintiffs who are
the appellants herein, as would
be unfolded later in this
judgment.
As
the records show, all the three
brothers gave separate
testimonies instead of allowing
just one of them to testify on
their behalf. This, in the end,
sowed the seeds of destruction
of their case as they seriously
contradicted themselves in their
testimonies in support of their
pleaded case. They subsequently
lost in the trial High Court.
They appealed against the
decision of the High Court to
the Court of Appeal and lost the
second time. They are now before
us seeking a second re-hearing
of the case they have lost on
two occasions.
Facts of the case
By
their writ of summons filed on
8th August 2001, the Plaintiffs
sued the Defendant who is of the
Abentia We Family of Oyarifa, in
the High Court, Accra. Their
claim was for:
1. Declaration of title
to a parcel of land situate at
AyiMensah described in the
Statement of Claim;
2. Recovery of
possession of the said land;
3. Perpetual Injunction;
and
4. Damages for trespass.
Their pleaded case in brief in
their original Statement of
Claim was that the disputed
land, which forms part of Agbawe
Quarter lands, was founded by
their predecessors; i.e. the
Asua We Family of Oyarifa and
La. Sometime later, the
Defendant’s great-grandfather
married one Adjeley Medda who
was the sister of their
great-grandfather. Their
great-grandfather, as a result
of the marriage between his
sister and defendant’s
great-grandfather, permitted
defendant’s great-grandfather to
farm on the disputed land in
consideration of token yearly
dues which he observed.
After the death of Defendant’s
great-grandfather, defendant’s
family maintained possession of
the land as their tenants.
Though Plaintiffs’ family has
terminated the tenancy of
defendant’s family, defendant
has refused to give up
possession of the land and is
laying adverse claim to the
land. Defendant has even
threatened to kill any member of
Plaintiffs’ family who dares to
enter the disputed land. They
therefore commenced this action
claiming the reliefs as endorsed
on the writ of summons as quoted
above.
Plaintiffs later amended their
Statement of Claim to read that
though the Asua We Family forms
part of the Agbawe Quarter, the
disputed land belonged
exclusively to the Asua We
Family but not the Agbawe
Quarter as they originally
pleaded since it was founded by
their predecessors of the Asua
We Family.
The defendant denied plaintiffs
claim in an Amended Statement of
Defence and Counter-Claim filed
on 27th February 2009. His
contention was that the disputed
land was granted to his family
(i.e. the Abentia We Family,
which forms part of the Abafum
Quarter of La) by the entire
Kpobi We Family within the
Agbawe Quarter of La some two
hundred (200) years ago.
The basis of the grant was that
his great-grandmother called
Adjeley who hailed from the
Kpobi We Family of the Agbawe
Quarter, married his
great-grandfather who is of the
Abentia We family. It was as a
result of the marriage that the
Agbawe Quarter granted the land
to his family, which has
remained in their possession for
the past two hundred (200)
years. He gave a description of
the land in his possession for
and on behalf of his family. The
boundaries mentioned differed
from that of the plaintiffs.
Defendant maintained that his
family has remained in
undisturbed possession of the
disputed land until somewhere in
the year 2000 when the 1st
Plaintiff trespassed onto same
and resorted to intrigues to
wrestle the land from him. He
denied that his family is on the
land as tenants of the
Plaintiffs’ family. He
counter-claimed for title to the
land he is in possession of,
general damages for harassment
and trespass and perpetual
injunction.
Judging from the totality of the
pleadings before the trial High
Court, there was no doubt that
the major issues for
determination by the trial court
were: -
(1) Whether or not the
land was granted to the
defendant’s family by the Kpobi
We Family within the Agbawe
Quarter or by the Asua We Family
also within the Agbawe Quarter
and;
(2) Whether or not it was
a customary grant or an
agricultural tenancy as both
parties contended alternatively.
After the testimony of the
surveyor who was appointed by
the trial High Court to survey
the disputed land, whose report
the trial court disapproved,
plaintiffs further amended their
Statement of claim by changing
and re-naming some of their
alleged boundary owners. Each of
the three Plaintiffs testified
after which they called two
witnesses. The 3rd Plaintiff
testified first, led by his
lawyer. The 1st and 2nd
Plaintiffs also testified
separately in that order also
led by their lawyer. They
contradicted each other
materially as to;(1) the root of
their family’s title to the land
(2) the length or period of
defendant’s family’s occupation
of the land, (3) the boundary
owners and (4) the extent or
size of the disputed land.
The 3rd Plaintiff who was the
first to testify on 10th March
2008 contended in his evidence
in-chief that the land
originally belonged to the La
Mantse and that it was the La
Mantse who granted it to his
family; i.e. the Asua We family
about one hundred (100) years
ago as at the time he was
testifying. However, during
cross-examination, he changed
this position and said the La
Mantse granted the land to his
family about fifty (50) years
ago from the date he was
testifying.
He
contended further that the
defendant’s family was occupying
just one plot of land measuring
80 feet by 100 feet and that he
was the caretaker of the
disputed land for and on behalf
of the La Mantse. Again, the
names the 3rd Plaintiff
mentioned as boundary owners of
the disputed land were different
from those mentioned in the
Amended Statement of Claim as
well as those mentioned by the
1st and 2nd Plaintiffs in their
testimonies.
The 1st Plaintiff on the other
hand said his Asua We Family
started farming on the land in
the year 1205 and they have
continued to possess same up to
date. This calculates to a
period of over eight hundred
(800) years. According to him,
defendant’s family was occupying
just about two (2) acres of the
land but he did not know when
the defendant’s ancestors
started farming on same.
During cross-examination, he
admitted that his family never
objected to the defendant’s
family’s occupation of the land
for the several years that they
have been farming on same. He
explained, however,that the land
has now become a residential
area so it is his family which
has to benefit from the sale of
the plots that is why they now
want to re-claim the land. This
testimony goes to confirm
defendant’s claim that it was
recently (around the year 2000)
that plaintiffs started their
interference in his quiet
enjoyment over the disputed
land.
The 2nd Plaintiff on the other
hand said the La Mantse has
nothing to do with the disputed
land as it were his ancestors
who were hunters that acquired
the land in its original state.
He could, however not tell when
his family acquired the land but
said the disputed land covers an
area of sixty (60) acres while
the total acreage of Asua We
Family lands in Oyarifa is two
hundred (200) acres.
Defendant, on the other hand,
was consistent as to how his
family came by the land.
According to him, it was a
customary grant made to his
family by the Kpobi We Family
within the Agbawe Quarter when
his great-grandfather married
his great-grandmother from the
Kpobi We Family of the Agbawe
Quarter over two hundred (200)
years ago. According to him,
before the grant was made to his
family, the land was part of
Kpobi We Family land within the
Agbawe Quarter but plaintiffs
want to use their wealth to
wrestle the land from his
family.
The trial High Court, on 30th
July 2010, dismissed Plaintiffs’
claim and granted judgment to
the Defendant on his
counter-claim.On 24th January
2011, Plaintiffs sought leave of
the trial High Court for
extension of time to appeal
against the decision of the
court to the Court of Appeal.
The application was granted and
on 2nd February 2011, plaintiffs
filed their Notice of Appeal,
which contained eight (8)
grounds of appeal numbered (a)
to (h), including the omnibus
ground; i.e. “The judgment is
against the weight of evidence”.
The plaintiffs argued only three
(3) out of the eight (8) grounds
of appeal; namely grounds (a),
(b) and (d). These were:
“(a) The judgment is against the
weight of evidence;
(b) The learned judge erred in
ruling on matters which were
neither set down for trial nor
disclosed by the pleadings: –
(i) Limitation
(ii) The Kpobi We Family a
non-party
(d) The learned judge erred in
declaring title for the
defendant in spite of the
indefinite description of the
land he claimed.”
The Court of Appeal dismissed
all the grounds of appeal but
the one that touched on the
Limitation Act. It then affirmed
the judgment of the trial High
Court. The plaintiffs are here
again on a second appeal against
the judgment of the Court of
Appeal.
The original grounds of appeal
filed in this Court were three,
namely -
a. The learned justices
erred in dismissing the appeal
and in effect confirming the
defendant/respondent’s
counter-claim for declaration of
title inspite of clear evidence
in the record of the following:
- (i) the defendant/respondent
never made a sole personal claim
of title over the land in
dispute; (ii) the court could
not have conferred absolute
title to the
defendant/respondent whose
evidence is to the effect that
his family was granted only
possessory farming rights, the
duration notwithstanding;
b. The learned justices
erred when having found that the
land in dispute belonged to the
Agbawe Quarter failed to rule
that the defendant/respondent
never acquired a valid grant by
virtue of evidence in the record
that his family acquired land
from Kpobi We family.
c. The learned justices,
having found that the land in
dispute is Agbawe Quarter land
should have ruled in favour of
plantiffs/appellants who are the
Agbawe members and accordingly
persons with better claims to
Agbawe lands than the defendant.
However,
plaintiffs/appellants/appellants
sought leave of this Court on
3rd February 2015 to amend the
notice of appeal with the
addition of two more grounds.
These grounds numbered, ‘d’ and
‘e’ are:
d. The learned justices
of the Court of Appeal erred in
law in failing to consider and
review adequately or at all the
evidence of the
defendant/respondent/respondent
relating to his counter-claim.
e. The learned justices
of the Court of Appeal erred in
law in dismissing
plaintiffs/appellants/appellants
ground of appeal (d) submitting
the indefinite description of
defendant/respondent/respondent’s
land without any consideration
whatsoever of it.
They prayed this Court to set
aside the judgment of the Court
of Appeal and grant the reliefs
they claimed in the trial High
Court.
In
their written submissions filed
on 23rd February 2015 pursuant
to leave granted by this Court
on 3rd February 2015,
plaintiffs/appellants/appellants
argued or made submissions in
respect of only three out of the
five grounds of appeal
reproduced above. The grounds
argued were (a), (d) and (e),
while grounds (b) and (c) were
abandoned. Grounds (a) and (d)
were canvassed together while
ground (e) was given a separate
consideration.
For the purposes of this appeal,
the
plaintiffs/appellants/appellants
would be referred to as
‘Plaintiffs’ while the
Defendant/respondent/respondent
would maintain the title
‘Defendant’.
This Court has established on
the authorities of ACHORO &
Another v AKANFELA & Another
[1996-97] SCGLR 209 and then
KOGLEX LTD (NO. 2) v FIELD
[2000] SCGLR 175 @ 176-177
that; “in an appeal against
findings of facts to a second
appellate court like…[the
Supreme Court[, where the lower
appellate court had concurred in
the findings of the trial court,
especially in a dispute, the
subject-matter of which was
peculiarly within the bosom of
the two lower courts or
tribunals, this court would not
interfere with the concurrent
findings of the two lower courts
unless it was established with
absolute clearness that some
blunder or error, resulting in a
miscarriage of justice, was
apparent in the way in which the
lower tribunals had dealt with
the facts”.
Acquah, JSC (as he then was)
gave four instances where such
concurrent findings may be
interfered with in the Koglex
case cited supra. These are:
(i) Where the said
findings of the trial court are
clearly unsupported by evidence
on record; or where the reasons
in support of the findings are
unsatisfactory;
(ii) Improper application
of a principle of evidence; or
where the trial court has failed
to draw an irresistible
conclusion from the evidence;
(iii) Where the findings
are based on a wrong proposition
of law; and
(iv) Where the finding is
inconsistent with crucial
documentary evidence on record.
So
as the authorities have firmly
established, the very fact that
the first appellate court had
confirmed the judgment of the
trial court does not relieve the
second appellate court of its
duty to satisfy itself that the
first appellate court’s judgment
is, like the trial court’s, also
justified by the evidence on
record. This is because, an
appeal, at whatever stage, is by
way of rehearing. It is
therefore the duty of every
appellate court to make its own
independent examination of the
record of proceedings.Our
primary duty, therefore, is to
determine whether the findings
of the trial court, as affirmed
by the first appellate Court,
are supported by the evidence on
record.
Plaintiffs’ submissions on
grounds of appeal
Basically, all the three grounds
of appeal canvassed by the
Plaintiffs in their written
submissions are grounded on
findings of facts. On grounds
(a) and (d), plaintiffs
contended that it was wrong for
both the trial High Court and
the Court of Appeal to grant
defendant the reliefs he claimed
in his counter-claim when his
case was that his family was
only granted farming rights over
the land but not an absolute
grant. Again, defendant
counter-claimed for title to the
disputed land personally while
his evidence was that it was for
his family. It was therefore
wrong for both the trial High
Court and the Court of Appeal to
decree judgment in his favour as
owner.
Another issue raised by
plaintiffs is that the Court of
Appeal erred in its evaluation
of the evidence on record when
it said plaintiffs could not
give even a single instance of
any customary tenancy
performances made by defendant’s
family to their family when
during cross-examination of 3rd
plaintiff, he mentioned the
existence of such customary
performance.
On
ground (e), plaintiffs’ case was
that both the trial Court and
the Court of Appeal erred in
granting defendant judgment in
respect of land which defendant
could not definitely describe.
They argued that while
defendant’s site plan over the
land differed from the
boundaries shown to the Surveyor
on the ground as produced on the
composite plan, four other names
appear on the plan as owners of
the land in question together
with defendant, but defendant
alone has counter-claimed for
title to the land without
indicating which portion
exclusively belonged to him.
Defendant’s submissions in
answer
In
his response to the above
submissions, defendant stated
that his case, which the trial
court and the Court of Appeal
found more probable than that of
the plaintiffs’ was that the
land in his possession was
granted to his family by the
Kpobi We family within the
Agbawe Quarter over two hundred
(200) years ago but not the Asua
We family. So granted that it
was a farming right which has
metamorphosed into an absolute
right as the plaintiffs are
contending, which he denied
anyway, it does not affect the
plaintiffs who are of the Asua
We family. Defendant referred
the Court to the testimony of
PW2; i.e. plaintiffs’ own
witness during cross-examination
by defence counsel, which I
recall below:
“Q. You know as a fact that the
defendant as well as his
ancestors and members of his
family have been cultivating the
land in dispute the past two
hundred years.
A.
I know they were farming on
Kpobi We land for two hundred
years and not on Asua We land”.
After giving this answer, PW2
went further to say that the
dispute arose because the
defendant left the Kpobi We land
and trespassed onto Asua We
land.
The fact is that PW2 was trying
to be more catholic than the
Pope when his testimony
suggested that the dispute
between the parties is about
their boundary when that is not
the case of plaintiffs who
called him to testify for them.
Plaintiffs are claiming the
whole land as theirs because
they (i.e. Asua We) but not
Kpobi We, gave it to defendant’s
family. They are not saying that
the defendant has trespassed
onto their land from Kpobi We
land as P.W.2 tried to impress
on the trial court.
Defendant contended further,
inter alia, that plaintiffs
failed to lead any historical
evidence in support of Asua We
Family’s claim of title to the
land. Again they failed to
describe the identity of the
land as they seriously
contradicted each other in their
testimonies on their boundary
owners. He prayed the Court not
to disturb the findings of the
trial court and the first
appellate court since their
findings are supported by the
evidence on record.
Evaluation of the submissions by
both Parties
Both the trial court and the
Court of Appeal were ad idem
that plaintiffs could not
establish their claim of title
to the land they described
variously as belonging to them.
This Court cannot fault the
trial court and the first
appellate court on their
evaluation of plaintiffs’
testimonies.
On
defendant’s counter-claim,
plaintiffs’ contention that the
defendant counter-claimed for
title to the land personally
while his evidence was that the
land belonged to his family, is
not borne out from the facts on
record. Defendant has been
consistent that the disputed
land, which he described in his
amended statement of defence and
which he is in possession of,
belonged to his family. He never
at any time claimed it as his
personal land.
From the records, he only made a
site plan of it and used some
members of his family as title
holders. That alone does not
take away the legitimacy of
defendant’s claim that the land
belonged to his family. He
testified as to how the land
came into his possession as
pleaded under paragraphs 1 to 6
of his amended statement of
defence which appears at page
313 of the ROAas follows: -
‘‘1. The defendants deny
paragraphs 1 to 17 of the
averments contained in the
statement of claim and will put
plaintiffs to strict proof of
the averments therein contained.
2. The defendant in
further denial of plaintiffs’
claim says that the land in
dispute was granted to
defendants Abentia Family some
two hundred (200) years ago by
the entire Kpobi We within the
Agbawe Quarter of La.’’
3. The defendant says
further that the basis of the
grant was that defendant’s
great-grandmother Adjeley hailed
from Kpobi We within the Agbawe
Family and married from Abentia
We within the Abafum Quarter of
La.
4. The said Yomo Adjeley
gave birth to Numo Tetteh
Korsorko of the Abentia We of La
who started farming the disputed
land some two hundred (200)
years ago.
5. After the death of
Numo Tetteh Korsorko, the land
devolved upon Numo Addo Tsuru,
then to Numo Sowah Ankrah, Numo
Nyanto, Ago and finally to the
defendant herein.
6. The defendant will
contend that until a year ago
when the 1st plaintiff
trespassed unto the land, nobody
had disturbed his family’s quiet
enjoyment of the land in dispute
since the grant some 200 years
ago…”
The fact that defendant never
said in his counter-claim that
he was counter-claiming for and
on-behalf of his family is
immaterial. According to
paragraph 5 of his statement of
defence, he is on the land by
virtue of succession. He was
never questioned or challenged
on this. Plaintiffs even
admitted that fact. In paragraph
9 of both their original and
amended statements of claim,
plaintiffs pleaded expressly
that; “the defendant is in
possession of this parcel by
reason of succession to this
tenancy at will made to his
great grand-father”. {Emphasis
added}.
While they admitted that
defendant was on the land by
succession, their contention was
that the grant he succeeded to
was one of agricultural tenancy
between their Asua We Family and
defendant’s family, an assertion
they could not establish in
their testimonies. Any claim
that the defendant makes in
respect of the land he is in
possession of is therefore for
himself and on-behalf of his
family on whose strength he is
in occupation and for which he
was dragged to court.
On
the strength of the principle
laid down by this Court in the;
In Re: Ashalley Botwe Lands case
(cited supra), the defendant has
capacity to counter-claim for
title as he did since he was in
possession of the land and was
sued in his capacity as the
successor to his predecessors
who had been farming on the
disputed land for over two
hundred (200) years; a period
plaintiffs appear to
acknowledge.
As
the trial High Court and the
Court of Appeal rightly
concluded, plaintiffs did not
lead any evidence to establish
that defendant’s family were
their agricultural tenants for
the over 200 hundreds years that
they had occupied and possessed
the land exclusively. It was
only during cross-examination of
the 3rd plaintiff that he told
the court in an answer that the
tribute defendant’s family had
been paying to his family as an
agricultural tenant was an
annual supply of cassava and
corn plus one shilling. This
fact was denied by the defendant
but plaintiffs gave no further
testimony to establish it.
They admitted that defendant who
is said to be over seventy (70)
years and has been in possession
of the land for several years,
has never paid any tribute to
their family. It is incredible
that the 3rd plaintiff who said
the disputed land belonged to
the La Mantse and that he was
the caretaker for La Mantse,
could turn round to say that
defendant’s family were paying
tribute over the land to the
Asua We Family. From when did
they start paying and when did
they stop? No evidence was led
to that effect.
Plaintiffs’ further contention
was that the defendant could not
clearly describe the land he is
claiming in his counter-claim;
nevertheless the trial court and
the Court of Appeal granted him
judgment. They want this court
to reverse that decision.
What the plaintiffs are
contending by this argument is
that if they could not establish
their claim to the land because
of the inconsistencies in their
testimonies, then defendant too
could not establish his
counter-claim since he also
could not properly describe his
land. So in effect, they want
the defendant’s counter-claim
too to be dismissed to score it
a draw.
There is no dispute to the fact
that the defendant is in
possession of the land which he
has described in his statement
of defence and for which he has
counter-claimed for title. The
plaintiffs themselves pleaded
under paragraph 9 of their
amended statement of claim that
the defendant came to possess
the land through succession from
his predecessors. They pleaded
further that defendant has been
jealously guarding this land
with a gun and has even
threatened any of the plaintiffs
with death in case they entered
the land.
The question is; what land were
the plaintiffs talking about in
their pleadings if defendant is
not certain about the land he is
claiming in his counter-claim?
The Court of Appeal held and
rightly so in the case of SAH v
DARKU [1987-88] 1 GLR 123 @ 125
that; “if the court could
ascertain from the evidence that
there was land sufficiently
identified by the defendant as
being in dispute between him and
the plaintiffs in respect of
which the court could give
effective judgment, the
counter-claim could not be
thrown out merely because the
description of the land was not
specifically pleaded”.
Though there were some few
inaccuracies in the description
of defendant’s family land as
shown on the site plan he
presented, that alone could not
defeat his counter-claim. The
trial court that heard viva voce
from the defendant observed that
the defendant was firm and
candid with his answers during
cross-examination demonstrating
that he had no desire or
intention to harness more land
than what was in his possession.
Though it is true, as was
contended by plaintiffs in their
written submissions, that
possession cannot ripen into
ownership no matter how long it
had been as was held by Ollenu,
J (as he then was) in LARTEY v
HAUSA [1961] GLR 773, the law is
that possession is nine points
of the law. In the words of
Ansah, JSC in the case of
ELIZABETH OSEI v MADAM ALICE
EFUA KORANG [2013] 50 GMJ 26 –
SC,“a plaintiff in possession
has a good title against the
wholeworld except one with a
better title. It is the law that
possession is prima facie
evidence of the right to
possession and it being good
against the whole world except
the true owner, he cannot be
ousted from it”.
This Court expressed the same
position in the case of SUMMEY v
YOHUNO & Others [1962] 1 GLR
160. In holding (3) of the said
judgment, this Court held that;
“the plaintiff being in
continuous and undisturbed
possession of the land, cannot
be ousted by a defendant who
sets up a bogus or fictitious
title to the same land:
meliorest conditio possidentis
ubi neuter ius habet”.
The standard of proof in civil
cases including land is proof on
the preponderance of the
probabilities. Sections 11(4)
and 12(1) of the Evidence Act,
1975 [NRCD 323] and the
decisions of this Court in
ADWUBENG v DOMFEH [1996-97]
SCGLR 660; SARKODIE v F.K.A. CO
LTD [2009] SCGLR 65;
ASANTE-APPIAH v AMPONSAH [2009]
SCGLR 90; YAA KWASI v ARHIN
DAVIES [2007-2008] SCGLR 580,
etc. are emphatic on that.
It
was not plaintiffs’ case that
the defendant has left the land
granted to his family and
trespassed onto theirs. Their
claim is that defendant’s family
was their tenants and since the
area has now become residential,
they have revoked the tenancy
agreement. The subject-matter is
not therefore one of boundary.
The issue is whether or not the
land that the defendant’s family
has been farming on for ages and
which defendant continues to
farm on was a customary grant to
them by the Kpobi We Family with
the concurrence of the Agbawe
Quarter or an agricultural
tenancy granted them by
plaintiffs’ Asua We Family. The
identity of the land defendant
is in possession of is therefore
certain.
In
his testimony during
cross-examination, the 3rd
plaintiff admitted that the land
in possession of the defendant
and over which he has
counter-claimed for title was
given to defendant’s family by
the Agbawe Quarter but not Asua
We as they claimed. I quote
below the question and answer:
“Q. I put it to you that because
of her customary marriage to a
man from Abafum Quarter of La,
that was why the Agbawe Family
gave the land to the husband.
A.
It is true.”
The above testimony of the 3rd
plaintiff during
cross-examination goes to
confirm defendants claim while
it completely destroys their
case.
As
indicated earlier, plaintiffs’
original Notice of Appeal
contained eight (8) grounds of
appeal. They however argued only
three (3) grounds and abandoned
five (5). Their contention
before us in their written
submissions was that grounds c,
e, f, g and h which they never
mentioned in their submissions
before the Court of Appeal were
subsumed under ground ‘a’ so it
was wrong for the Court of
Appeal to say that they
abandoned them. This argument is
quite interesting.
Throughout their submissions in
the Court of Appeal, plaintiffs
never indicated anywhere that
they were arguing grounds a, c,
e, f, g. and h together because
they were related. They never
mentioned grounds c, e, f, g and
h at all in their written
submissions so how could
plaintiffs say that the said
grounds presented
self-explanatory and complete
arguments by themselves? How
could the grounds, standing on
their own without any meat added
to them be arguments in
themselves?
If
plaintiffs knew the said grounds
touched on the weight of
evidence adduced at the trial,
then why make them separate
grounds of appeal without saying
anything about them. The fact
that plaintiffs never mentioned
the said grounds in their
written submissions meant they
had abandoned them. The Court of
Appeal was therefore right in
reaching that conclusion.
The appeal before us is clearly
unmeritorious and same is
dismissed.
(SGD)
YAW APPAU
JUSTICE OF THE SUPREME COURT
(SGD)
ANIN YEBOAH
JUSTICE OF THE SUPREME COURT
(SGD)
P. BAFFOE- BONNIE
JUSTICE OF THE SUPREME COURT
(SGD)
J. B. AKAMBA
JUSTICE OF THE
SUPREM COURT
(SGD)
G. PWAMANG
JUSTICE OF THE
SUPREME COURT
COUNSEL:
NICK M. AFESI
ESQ. FOR THE
PLAINTIFFS/APPELLANTS
/APPELLANTS.
ERIC NARH ESQ. FOR
THE DEFENDANT/RESPONDENT
/RESPONDENT.
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