|
JUDGMENT
ESSILFIE-BONDZIE, J.A.
This is an appeal from
the judgment of the Circuit Court Accra dated 20th day
of October, 2000. By a writ of Summons filed on the 3rd
March, 1999 the Plaintiff/Respondent (who, will hence
forth known as the plaintiff) sued for himself and the
family of Quarshie and claimed against the
defendant/appellant (who will hereinafter referred to as
the defendant) the following reliefs:
(a) A declaration of
title to all that piece or parcel of land lying and
situate at La, near Degaulle Park measuring an
approximate area of 0.21 acres.
(b) Declaration that
the Plaintiffs are the bona fide owners of land
measuring and covering an approximate of 0.21 acres.
(c) Perpetual
Injunction restraining the defendant, assigns and
privies from having any thing to do with the said land
or interfering with the ownership and possession rights
of the Plaintiff and his family over the said land.
(d) Replacement of 600
pieces of block or its equivalent in cedis."
It is necessary at this
stage to give a brief account of the genesis of this
suit. The plaintiff' representative, Mr. Samuel Odoi
Quarshie is first cousin to the defendant. They Come
from two twin brothers Erasmus Akuetteh Quarshie and Oko
Yemoh. Plaintiff's father is Erasmus and the defendant's
father is Oko Yemoh. The two brothers had one sister
called Yemoteley Quarshie.
The plaintiff's case,
was that some time ago, his family's land situate at La
near Degualle Park in Accra, was earmarked for public
purpose. To avoid losing the land, the family mandated
the defendant his Cousin, to use all possible means to
reclaim the land for the family which she succeeded in
doing. According to the plaintiff the defendant was
reimbursed for expenses incurred and the land was shared
equally between three beneficiaries Namely his father,
Erasmus Akuetteh Quarshie, Yemoteley Quarshie and Oko
Yemoh. It was contended by the plaintiff that the
defendant had her father's and also took that of their,
aunt Yemoteley Quarshie's share arguing that since the
Aunt had no child she would be buring her when she died.
The Plaintiff alleged that since the division of the
land, he has exercised control over his fathers portion
without any hindrance. The defendant, he alleged was
laying, adverse claim to this father's land and had
appropriated 600, blocks belonging to his father which
she had failed to replace or pay for.
The defendant denied
the plaintiff claim that the piece of land is family
land which was shared amongst two brothers and a sister.
It was her case that she purchased the land from the
Lands Commission Secretariat in her own right for
herself and that the land in dispute is hers, not by
inheritance from her father or her aunt Yemoteley
Quarshie. As to the 600 blocks she said she paid ¢2,400
to plaintiff father for it. It is therefore not true
that she failed to pay for these blocks.
The defendant also
counter claimed for declaration of title. The defendant
lost the suit. Being aggrieved and dissatisfied with the
decision of the Circuit Court, the defendant has
appealed to this Court. She filed two original Grounds
of Appeal and four additional Grounds of Appeal. In this
appeal however I propose to deal with Ground One of the
original grounds appeal and Ground one of the additional
grounds of appeal which I consider relevant to the
determination of the appeal.
Before I commence to
deal with the said Grounds of the appeal, I want to have
on record the fact that the Court docket, indicates that
the plaintiff/respondent was served with the written
submission of the defendant on the 9th December, 2003.
As on the 12th February when the appeal came on for
hearing, no written submission had been filed by the
Respondent (i.e for a period of more than 30 days) in
accordance, with Rule 20 (4) of C.I. 19 which stipulates
a period of 21 days after service of the appellants
written submission under the circumstances the appeal
was adjourned to day for judgment. The inference is that
the plaintiff respondents did not want to contest the
appeal.
Be that as it may I
will proceed to deal with the appeal on its merits.
Ground One of the original grounds of appeal states that
"The judgment of the trial Court is unreasonable and
cannot be supported having regard to the nature of
evidence adduced at the trial".
The established
principle in land Law is that a plaintiff in an action
for a declaration of title assumed the heavy burden of
proof and the plaintiff must succeed by the strength of
his own case and not by the weakness of the defendant's
case. See OPPONG KOFI and ANOTHER vrs. FOFIE [1964]
G.L.R. 174 SC, BANGA and OTHERS vrs. DJANIE and ANOTHER.
[1989-90] G.L.R. 510.
In the instance case,
the plaintiff averred by his statement of claim that
sometime ago his family land situate at La near Degaulle
Park in Accra, was earmarked for public purpose. To
avoid losing the land, the family mandated the
Defendant, his cousin to reclaim the land for the family
which she succeeded in doing. The land was subsequently
shared equally between three beneficiaries namely his
father, Erasmus Akuetteh Quarshie and Yemoteley
Quarshie. That since the division he had exercised
control over his father's portion without any
interference. He alleged that the defendant was laying
adverse claim to his fathers land and has appropriated
600 blocks belonging to his father. The defendant
disputed the plaintiff’s claim by a statement of defence
and a counter-claim.
The record of
proceedings disclosed that although the plaintiff's
pleadings and averments were denied by the defendant he
entered the witness box, repeated the averment in the
statement of claim and closed his case. He failed to
adduce any corroborative evidence whatsoever to
substantiate his case. He did not call any witness and
never proffered any documentary evidence. In the often
cited case of MAJOLABI vrs. LARBI & ORS, [1959] G.L.R.
190 at p. 192, OLLENU J. (as he then was) stated the law
on proof as follows: —
"proof in law, is the
establishment of fact by proper legal means, in other
words, the establishment of an averment by admissible
evidence. Where a party makes an averment and his
averment is denied, he is unlikely to be held by the
Court to have sufficiently proved that averment by his
merely going into the witness box, and repeating the
averment on oath, if he does not adduce, that
corroborative evidence that corroborative evidence which
(if his averment be true) is certain to exist" Learned
Counsel for the defendant argued that the plaintiff
failed to endorse on the Writ of summons a clear
description of the area of land he was claiming. By a
notice of amendment filed on the 9th March, 2000 the
plaintiff sought leave to amend the relief (a) endorsed
on the writ of summons. He sought to amend the extent of
the land in dispute from 0.21 acres to 0.70 acres. The
trial court granted the plaintiff's application for
amendment by an order dated 3/4/2003. It is however
evident from the record of proceedings that the
plaintiff failed to file an amended writ of summons,
pursuant to the said order. Now since the plaintiff did
not amend the endorsement on the Writ according to the
terms granting the order, before the expiration of
fourteen (14) days of the order, the order for amendment
became ipso facto void, the learned trial judge
therefore went wrong when he entered judgment for the
purported land size of 0.70 acres, although no amendment
of the Writ had been effected.
It must be pointed out
that since the plaintiff, lay claim to a specific land
area, it is his duty to give oral evidence clearly
showing the area of land to which his claim relates. In
his evidence in chief the plaintiff when questioned,
merely said "The land is at Degualle Park. I have a site
plan to the land. The original is at home."
The settled Law is that
it is the duty of a plaintiff who comes to court to
claim a declaration of title to establish positively the
identity of the land to which the claimed title.
The pertinent question
posed here is: Did the plaintiff succeed in establishing
the identity of the land according to Law so as to
entitle him to a declaration of title and the other
relief of injunction he sought.
In ANANE vrs. DONKOR
[1965] G.L.R. 188 at p. 192 the then Supreme Court per
Ollennu, S.C. stated the law as follows: —
"Where a Court grants
declaration of title to land or an order for injunction
in respect of land the land subject of that declaration
should be clearly identified so that an order for
possession can be executed without difficulty and also
if the order for injunction is violated, the person in
contempt can be punished. If the boundaries of such land
are not clearly established a judgment or order of the
court will be in vain. Again if a judgment for
declaration of title to land should operate as RES
JUDICATA to prevent the parties relitigating the same
issues in respect of the identical subject matter but it
cannot operate unless the subject matter thereof is
clearly identified. For these reasons a claim for
declaration of title or an order for injunction must
always fail if the plaintiff fails to establish
positively the identity of the land to which he claims
title . . . . . ”
In this case the
plaintiff failed to endorse on the Writ of Summons a
clear description of the area of land he was claiming.
He failed to adduce evidence to show, the measurements
of the land he claimed. In one breath, he said he was
claiming 0.21 acres as his share of an unidentified
land. In another breath he was claiming 0.70 acres. In
my view the Court ought to have appointed an independent
surveyor for a proper survey of the area in dispute and
a plan drawn to scale produced.
Further more the
plaintiff led no evidence to prove the boundaries of the
land claimed him and failed to call any of his boundary
owners. I hold that the plaintiff failed to discharge
the burden of proof of the identity of the land claimed.
In short he failed to prove his title.
I will next deal with
Ground one of the additional grounds of appeal which
reads:
"That the trial Court
erred in law by failing to appreciate that the plaintiff
was not clothed with the requisite capacity to sue and
maintain the action, having failed to specify on the
writ of summons and statement of claim, whether he was
sung as:
(i) Head of the
Quarshie family on the authorised representative of the
said family by vertue of a power of attorney.
(ii)
Executor/Administrator of the estate of ERASMUS AKUETTEH
QUARSHIE (deceased) whom he alleged to be the owner of
the disputed land in which case he was required to
produce either probate or letters of administration
relating to the deceased's estate:
(iii) Beneficiary of
the estate of the said deceased, in which case he was
obliged by law to demonstrate his capacity by producing
a vesting assent."
The principle of law as
enunciated in the case of GHANA MUSLIM REPRESENTATIVE
COUNCIL vrs. SALIFU [1975] 2 GLR at 248, is that "In a
representative action it was necessary both in the writ,
and in the subsequent pleading to state clearly that the
parties suing or were being sued in their representative
capacity, on behalf of members of the defined were
class. The representative capacity should also be stated
in the title of both the writ and statement of claim and
not merely in the endorsement of the writ or the body of
the pleading.” The record of proceedings reveals that
the plaintiff described himself on the writ of summons
as "SAMUEL ODOI QUARSHIE SUING ON HIS OWN BEHALF AND THE
FAMILY OF QUARSHIE" The plaintiff omitted to state his
alleged representative capacity in the statement of
claim. He did not disclose the capacity in which he
purported to represent the family of Quarshie. He led no
evidence on his alleged representative capacity. There
was no evidence to suggest that he was either the head
of the Quarshie family or authorised by head of family
to sue.
It is note worthy that
in his statement of claim, the plaintiff described the
land in dispute. "as family land situate and lying at La
near the Degaulle Park" which was "devided into three
equal halves" between Akuetteh Quarshie (his father),
Oko Yemoh and Yemoteley Quarshie. The plaintiff however
led no evidence to show how the family land devolved on
the said beneficiaries and became their personal
properties. It is evident that the plaintiff was not one
of the beneficiaries of the disputed land. And yet he
offered no explanation as to why he brought the action.
I hold that having
failed to disclose clearly his capacity to sue, the
plaintiff's action ought to fail. In the light of the
matters convessed above it is my judgment that the
plaintiff fail prove his claim and the judgment is
hereby set aside. The appeal is allowed and judgment is
given in favour of the defendant on her counter claim.
A. ESSILFIE-BONDZIE
JUSTICE OF APPEAL
OSEI, J.A.
I agree.
J.A. OSEI
JUSTICE OF APPEAL
QUAYE, J.A.
I also agree.
G.M. QUAYE
JUSTICE OF APPEAL
COUNSEL
Mr. Kenneth Brookman
Amissah for Plaintiff/Respondent |
