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BROBBEY, J.S.C:
On 17th November
2000, Asare-Korang J (as he then
was) entered judgement for the
appellants who sued the first
two respondents amongst others
for a declaration of title to
the Land, a description of which
was endorsed on the writ of
summons and perpetual
Injunction restraining them,
their servants, agents or
assigns from having anything to
do with the land. Dissatisfied
with the judgment, the
respondents appealed to the
Court of Appeal which allowed
the appeal and entered Judgement
in their favour. The appellants
then appealed to this court
against the decision of the
Court of Appeal.
Seven grounds of appeal were
filed. The first three grounds
are quite similar and raise
identical issues. The first
ground of appeal read as
follows:
“The judgment of the Court of
Appeal was against the weight of
Evidence and that the court
erred in not holding that, on
the balance of probabilities the
Plaintiffs/ Appellants
discharged the burden of proof
placed on them.”
In
Akufo- Addo vs. Catheline
[1992]1 GLR377
SC, in headnote 3, this Court
held that ‘where the appellant
exercised the right vested in
him and appealed against the
judgement on the general ground
that the judgement was against
the weight of evidence, the
appellate Court had jurisdiction
to examine the totality of the
evidence before it and come to
its own decision on the admitted
and undisputed facts.
As an appeal is by way of
rehearing, the Court of appeal
was bound to consider
comprehensively the entire
evidence before coming to a
conclusion on the matter. The
burden of proof and persuasion
remained on the appellants to
prove conclusively, on a balance
of probabilities, the boundaries
of the Land to which they
claimed a declaration of title
and perpetual injunction. This
burden hardly shifts. Unless and
until the plaintiffs who are the
appellants are able to produce
evidence of relevant facts and
circumstances from which it can
be said that they have
established a prima facie case,
the burden remains on them. What
then was the evidence adduced by
the appellants in the current
case?
In the oral evidence of 2nd
appellant, he said that the land
was bounded to the south towards
the motorway by Adjiringano; on
the west or
left by Tessa,
Bawaleshie and Mpehuasem and to
the north by Madina town. The 1st
appellant’s description was as
follows; Tessa and
Adjiringano to the
south, on the
north by Ogbojo village, on the
west by Mpehuasem and on the
east by Otano. To successfully
maintain an action for a
declaration of title to land,
the appellants had to prove with
certainty the boundaries of the
land claimed. They tendered
exhibit J, H, K, M, and N in
support of their case. These
exhibits suggested that Teshie
quarter lands do not extend
beyond the railway lines by the
Tema motor way.
The respondents who were the
defendants at the trial court
contended that Teshie quarter
lands extend to the foot of the
Akuapim Hills. In support of
their case, they tendered
without objection exhibit 1D4.
That was a document before the
Lands Commission in which a
vivid description of Teshie Land
tenure system and the history
behind the acquisition of same
has been given. Exhibit 1D4
contains statements by 1st
appellant in his undisputed
capacity as chairman of the
Teshie Town Council and he gave
the boundary of Teshie quarter
lands as ending at the Akuapim
Hills. That was clearly in
conflict with his testimony in
court.
What then is the weight to be
placed on the conflicting
evidence adduced by the
contending parties? In the case
of Yorkwa v Duah [1992-93]
GBR 278, CA the Court
held that whenever there was in
existence a written document and
conflicting oral evidence, the
practice of the Court was to
lean favourably towards the
documentary evidence, especially
if it was authentic and the oral
evidence was conflicting.
The conflicts in the evidence of
the appellants showed that they
failed to discharge the onus of
proof that lay on them. Apart
from the conflict in the
evidence given by the 1st
and second appellants on their
accounts of the boundaries,
their description of the
respondents to the extent that
Teshie lands extend to the foot
of the Akwapim Hills was not
supported by the evidence on the
record.
The first ground of appeal
failed and I would dismiss it.
Ground two of the grounds of
appeal read as follows:
‘The Court of Appeal misdirected
itself and ignored the geography
of the Area in holding that the
Plaintiffs did not describe the
subject matter with certainty to
entitle them to a declaration of
title in their favour…’
This ground is not in substance
quite different from ground one.
In support of ground two, the
appellants stated that they
attached to their writ of
summons, a site plan which they
also tendered as Exhibit ‘A’ at
the trial and further described
the parcel of Land extensively
in their endorsement on the
statement of claim. They added
that as at the time the action
was instituted in 1989, rural Ga
within which the land in issue
was situated was undeveloped;
and the boundaries were in a
state of flux for which reason
they could not at the time
describe the land with the
desired certainty and for that
matter used expressions like
‘vast land’ in their endorsement
on the statement of claim. That
was clearly an admission that
they failed to describe the
boundaries with certainty.
They contended further that
they gave oral evidence during
the trial to delineate with
certainty the boundaries of the
land.
The respondents argued that
because the appellants engaged
in a practice frowned upon by
this court in the case of
Godka Group of Companies vs.
PS International Ltd
[2001-2002] SCGLR SC 918 at
pages 928-929 their evidence on
the boundaries as depicted by
the site plan should not have
been given any weight. In that
case, the principle was put this
way in holding four of the
headnote:
“The practice of attaching
documents to pleadings and
marking them as exhibit, as was
done in the instant case, was
wrong. It is an attempt to
adduce evidence through the
pleadings but that was not
permissible under Order 19, r. 4
of the High Court (Civil
Procedure) Rules, 1954(LN 140A).
Judicial evidence must be given
by witnesses who before
testifying must take oath or
affirmation that they would
speak the truth. The Court of
Appeal had erred when it
referred to and relied on
documents attached to the
statement of claim as evidence.”
The practice is clearly to be
deprecated because the basic
principle is that site plan,
like other plans, is evidence
and evidence is not pleaded in
the preparation of pleadings. In
the instant case, the
respondents did not object to
the tendering of plan at the
trial. That does not excuse the
introduction of evidence in the
preparation of pleadings. The
fact of allowing the plan to be
tendered in evidence without
objection may give a slightly
different twist to the issue at
stake. Having gone in without
objection or challenge, the plan
may be considered as
unchallenged evidence. Once the
document is accepted as an
exhibit, it forms part of the
record before the Court to be
evaluated at the end of the
trial, for what it is worth.
To the extent that the plan was
not put in evidence for it to be
examined upon, the principle
enunciated in the above Godka
case supra denied it of any
serious probative value
The issue of whether the
appellants described the land to
which they sought a declaration
of title with the desired degree
of certainty has partly been
discussed under in the
consideration of ground one
above: In their oral evidence,
the first and second appellants
gave conflicting evidence on the
boundaries. Their site plan did
not help their case in any
effective way on the
identification of the land in
issue.
The principle is that to succeed
in a an action for the
declaration of title to land,
injunction and recovery of
possession, the Plaintiff must
establish by positive evidence
the identity and the limits of
the land he claims. That was
one of the decisions in
Nyikplorkpo v.
Agbedotor [1987-88] 1 GLR
165 at page 171, CA. In addition
to the conflicting evidence on
the boundaries, the appellants
in the instant case would have
helped their case if they had
called adjoining land owners to
clear doubts in their evidence,
but this they failed to do. They
gave inconsistent evidence on
the communities with which the
lands share boundaries. In
BEDU vs. AGBI
[1972] 2 GLR 283 C.A in
which the appellants and their
witnesses adduced conflicting
evidence as to the boundaries of
the land in respect of which
they sued for a declaration of
title, they lost both at the
trial court and on appeal
because they were held not to
have positively described the
land in issue.
From the foregoing therefore, it
is obvious that the appellants
were not able to establish the
boundaries of their land by
positive evidence. Ground two
failed and should be dismissed.
The third ground of appeal read
as follows:
“The Court was wrong in holding
that; the Trial Judge erred in
not appreciating the legal
effect of ‘Exhibit B’ and that
there was sufficient Evidence on
Record for me to conclude that
Teshie Lands stretch from the
coast to the environs of Akwapim
Hills ’notwithstanding the
preponderance of evidence and
the effect of exhibit J,H,K,M,N
as well as the testimony of
D1W1, D1W3, D1W6, DIW8 to
conclude that Kle Musum quarter
land alone among the 5 quarters
of Teshie apportioned by Nii
Ashitey Akomfra in 1927 extended
beyond the railway line to the
environs of Akwapim Hills.”
The parties were ad idem that
quarter lands in Teshie were
created by Nii Ashitey Akomfra
II. The point of departure was
where the then Teshie stool land
which was shared in 1927/28
among the five quarters ended.
While the appellants in the
instant case argued that it
ended at the railway line by the
motor way, the respondents argue
that it extended to the Akuapim
Hills.
What then is the evidence
available on record in support
of each party’s case? The
Plaintiff-Appellants put the
contents of exhibit J, H, K, M
and N to the respondents during
cross examination of
D1W1,D1W3,D1W6,DIW8 in support
of their case that Teshie stool
lands now quarter Lands end at
the railway line. The
respondents however explained it
away that the exhibits put the
boundaries at the railway line
only because the registration by
the various quarters were done
in phases and exhibits J and H
representing Agbawe and Kle Musu
quarters respectively were phase
one of the registration process
and did not represent the final
plan for the quarters. Exhibit K
represents Gbugblah quarter and
ends at the railway lines only
because the Lands beyond the
railway had been acquired by
government and marked a military
area.
The respondents however argue
that exhibit 1D4 which was
tendered without objection from
the appellants was a document
before the Lands Commission in
which a vivid description of
Teshie Land tenure system and
the history behind the
acquisition of same was given.
The document, 1D4, contains
statements by 1st
Plaintiff- Respondent-Appellant
in his undisputed capacity as
chairman of the Teshie Town
Council and gave the boundary of
Teshie quarter lands as ending
at the Akuapim Hills. This is an
issue of prior inconsistent
statement. Section 76 of NRCD
323 provides that; Unless the
Court in its discretion
determines otherwise, extrinsic
evidence of a statement made by
a witness that is inconsistent
with any part of his testimony
at the trial shall be excluded,
unless the witness was so
examined while testifying as to
give him the opportunity to deny
the statement; or that the
witness has not been excused
from giving further testimony.
In the instant case the trial
Court exercised the discretion
conferred on it by the Evidence
Decree and allowed the tendering
of the document which was
inconsistent with the statement
by the 1st appellant
and it is fully in evidence. He
offered no explanation why he
gave the prior inconsistent
statement in issue. The
appellants relied on the
evidence of D1W1, D1W3, D1W6,
and D1W8 to support this ground
of appeal. They reproduced
verbatim the testimony they
relied on in their statement of
case but none of them supported
the case of the appellants. For
the foregoing reasons, ground
three also failed and should be
dismissed.
Grounds four and six will be
considered together.
Ground four read as follows:
The failure of the Court of
Appeal to appreciate and
acknowledge the undisputed
distinction between Teshie
Quarter Lands as apportioned in
1927-28 on the one hand and
rural lands, towns, villages
etc. outside Teshie (i.e. the
Railway Line) held and acquired
by Teshie Citizens and families
as well as individuals on the
other hand led to the erroneous
conclusion that Otinshie formed
part of Kle Musum Lands,
GROUND 6
The Court of Appeal erred in Law
and on the facts, having found
that Nii Osae Otinshie from
Krobo Quarter of the Teshie
and later Mankralo founded
Otinshie in 1870 before the
apportionment of Teshie Quarter
lands in 1927-28 by Ashitey
Akomfra whom he enstooled in
1916 and the Plaintiff/
Appellant having been in
undisputed possession exercising
rights of ownership and
alienation to 3rd
parties to the full knowledge of
the Respondent, in holding that
Otinshie belongs to Kle Musum
quarter and that the
Plaintiff/Appellant have only
possessory/ usufractuary
interest with allodial title
vesting in the Respondent.
To
conclusively discuss these two
issues, it will be useful to
trace the history of what has
now become known as Teshie
quarter lands. Originally, the
lands were Nungua stool lands
but sometime in or about
1710-1715; the founder of Teshie
Nii Okai Ngbashi bought the land
from Nungua. Several years after
his death the land was divided
among the five quarters of
Nungua namely:
·
The Krobo quarter
·
The Agbawe quarter
·
Klemusu quarter
·
Gbugblah quarter
·
Lenshie quarter
In 1927 or thereabout Nii
Ashitey Akomfra shared the land
amongst the various quarters.
The parties are ad idem on this
history.
What is not obvious from the
evidence adduced by both parties
is whether the land Nii Okai
Ngbashi acquired from Nungua
stretch from the shore line to
the Akuapim Hills. The parties
agree that what are now quarter
lands were ones just one block
vested in the Teshie Stool. The
Plaintiff-Respondent- Appellants
however, argue that Otinshie
village was founded by their
ancestor Nii Osae Ntifu from the
Krobo quarter and the 14th
Mankralo of Teshie in the 1870s.
Evidence elicited from D1W3, Nii
Akpor Adjei II in cross
examination confirms the
assertion that there were some
villages in existence before the
quarter lands were demarcated.
The
Plaintiff-Respondent-Appellants
argue that the Otinshie could
not have been part of Klemusu
quarter land. They base their
argument on the assertion that
Otinshie existed before the
various quarter lands were
created and further that the
first settler, their ancestor,
was from the Krobo quarter. The
issue then is who has title to
Otinshie lands, Krobo quarter,
Klemusu quarter or is it the
case that Otinshie is Osae
family land and if so what is
the nature of the title held on
Otinshie land?
The decision in Akwei &
others v Awuletey &
Others [1960] GLR 231
at page 236 settled the
position as follows:.
This case defines
·
Quarter lands are lands within
the quarter of a town
·
Outskirts lands are lands which
are immediately adjacent or
contiguous to a quarter land
·
Rural land, like all other Osu
lands, are neither quarter nor
outskirts lands.
While the Plaintiff-Respondent-
Appellant invited the Court to
hold that Otinshie village was
rural land for which reason the
Osae family holds an absolute
title, the
Defendant-Appellant-Respondents
invited the Court to hold that
Otinshe village land are quarter
lands and the Klemusu quarter
holds the absolute title.
The
Plaintiff-Respondent-Appellant
submits that even though the
subject matter of Akwei &
others v Awuletey &
Others (supra)
cited above was Osu lands, the
principles enunciated therein
apply to lands in Labadi and
Teshie. He cited the authority
of Adoaku vs.
Nyamalor [1963] 1 GLR 279
where the Supreme Court held
that “the customary law in
Labadi in respect of alienation
of quarter land was obviously
similar to that obtaining in
Osu, neighbouring state or
division.”
The 3rd respondent
invites the Court to distinguish
Adoaku vs. Nyamalor
supra. They do not
provide the basis for which the
Court will distinguish the
current case from the
authorities cited above and in
the absence of any such
foundation, the definition set
out above should apply to
Teshie.
In Ohemeng v. Adjei [1957] 2
W.A.L.R. 275@ 279 the Court
held that every subject has an
inherent right to occupy any
portion of vacant stool land
i.e. Land which is not in
occupation by another subject or
of a grantee of the stool .In
Oblie v Armah
[1958] 3 W.A.L.R 484 the
Court held that a subject
is not rationed in
the amount of stool land he can
occupy and farm. The only
limiting factors on the extent
of stool land a subject can
acquire by farming are his own
capacity to farm and the extent
of land which other subjects
have appropriated to their own
use by their labour.
From the record, the Otinshie
village was in existence and
occupied by the appellants’
family before the creation of
quarter lands out the then
Teshie Stool Lands. It is also
not in dispute that the ancestor
of the Plaintiff who founded
Otinshie was from Teshie for
which reason he was entitled to
build and farm on any unoccupied
portion of lands belonging to
the Teshie stool.
Since the founder of the village
of Otinshie did not come from
Klemusu quarter, Klemusu quarter
should have no claim of right in
any form to Otinshie village
lands. It is established by the
evidence on record that the
founder of Otinshie village was
from the Krobo Quarter. The
right which the Osage family
will hold in Township village
lands will however be an
absolute title and not a
usufructuary right as held in
the Court of Appeal. In this
connection, the Otinshie village
should only be the area which
the appellants’ ancestors had
effectively reduced into their
possession, i.e. their building,
farm lands, cemetery.
The appellants have not been
able to satisfactorily establish
the boundaries of the total area
to which they originally claim
and therefore they will not have
same.
Appeal on grounds 4 & 6 should
be allowed granting the
Plaintiff- Appellants family
absolute title and not a
usufractuary title as the Court
of Appeal granted
Ground five of the grounds of
appeal also read as follows:
“The Court of Appeal erred for
no better and/or apparent reason
in Law, in giving probative
value to exhibit ‘B’”
Exhibit B in issue here is a
statutory declaration by Numo
Adjei Onanka executed on 21st,
July, 1965 and Registered as No.
1332/1965. It seeks to depict
the extent of Klemusu quarter
lands. It was established during
cross- examination that the
declaration was not published
before it was registered because
at the time it was made, there
was no such requirement whether
administrative or legal. It is
also not useful in the current
appeal to go into the legal
consequences of not publishing a
statutory declaration before
registration of same since it is
now settled that registration of
an instrument does not per se
confer an unimpeachable title on
the holder of the registered
instrument. This
therefore means that the
existence of the statutory
declaration in issue was not
conclusive evidence of title.
The issue of title to the land
still stands notwithstanding the
registration of the statutory
declaration in evidence as
exhibit B.. Exhibit B ought not
to have had any probative value
at all in determining the issues
before the Court.
The third respondent however
argued that the statutory
declaration in issue could not
be questioned because it had
been on record for thirty years
without any protest and the
appellants must be held to have
acquiesced and estopped from
alleging that they had lands at
Otinshie because if they did,
they would have complied with
the government directive
contained in the Lands
Concession Bulleting No. 13 of 7th
May 1965.
Going into arguments on time
lapse will not be very helpful
to the extent that the statutory
declaration in itself did not
confer unimpeachable title on
the respondents. If registered
documents did not convey
unimpeachable title, it is
difficult to see how a mere
statutory declaration can confer
any better title.
Ground seven of the grounds of
appeal read as follows:
“The Court of Appeal erred in
relying on the evidence of the 1st
Defendant whom the 3rd
Defendant /Respondent denied
ever giving a power of Attorney
as well as the Evidence of the 1st
Defendant’s Attorney (Oku Klu)
and his witnesses when the 3rd
Defendant/Respondent has also
revoked the power of Attorney
given him hereby resulting in
gross miscarriage of
justice.”
The Evidence Decree, 1975,
NRCD 323 provides for
the circumstances under which a
Judgement will be set aside,
altered or reversed on appeal or
review because of the erroneous
admission of evidence and this
is only when such erroneous
admission of evidence resulted
in a substantial miscarriage of
Justice. In determining whether
the admission of a particular
piece of evidence resulted in a
substantial miscarriage of
justice, the Court will consider
among others, the following;
-
Whether the Court relied on
inadmissible evidence
-
Whether an objection was
raised to exclude or strike
out the evidence
-
Whether the decision would
have been different but for
the erroneous admission of
the evidence.
Section 58, 59 and 60 of the
Evidence Decree, 1975, NRCD 323
are instructive on this issue,
section 58 makes a blanket
statement that everybody is
qualified to be a witness
whereas section 59 excludes
persons incapable of expressing
themselves directly or through
an interpreter or are unable to
understand the duty to tell the
truth. Section 60 makes personal
knowledge a requirement for
qualification as a witness. In
the current case nothing on the
record of appeal suggest that
the Appellant took any steps
either at the Trial Court or
Court of Appeal to exclude the
evidence of 1st
Defendant and his Attorney or
any of the other witnesses
complained about. All the
witnesses were capable of
understanding the duty of a
witness to tell the truth,
capable of expressing themselves
and communicating with the Court
and finally gave evidence on
matters that were within their
personal knowledge. The
revocation of a Power of
Attorney given to 1ST
Defendant- Respondents Attorney
did not in itself disqualify him
as a witness, if he met the
standards set by the Evidence
Decree on admissibility of
evidence. Moreover the
appellants seem to be
approbating and reprobating, in
arguing grounds 3, 4 and 6 of
this current appeal he relies
extensively on the evidence he
says should have been excluded
by the Court of Appeal to state
their case. Considering the
totality of the evidence on
record, the Appeal on this
ground should fail.
CROSS APPEAL BY 3RD
RESPONDENT
The 3rd respondent
cross appealed on grounds that
the Court of Appeal erred in
according the appellant
usufructuary rights in the Land
they occupy at Otinshie and its
immediate environs. The cross
appeal arose out of the findings
of the Court of Appeal that the
appellants were entitled to
usufructuary title in the
Otinshe lands.
As was rightly pointed out in
the statement of case of the
respondent, there are conditions
precedent before usufractuary
right can be invoked were
settled in Ohemeng v. Adjei
and Oblie v Armah which
have both been considered above.
In the instant case the ancestor
of the Osae Family exercised his
inherent right and formed the
village of Otinshie out of the
then Teshie Lands. He thereby
created allodial title. That was
before quarter lands were
created. There was no evidence
by which it could be said that
the allodial title to Otinshie
would be converted into
usufructuary title or that it
was limited only to the areas
they had actually reduced into
their possession. The
conclusions of the Court of
Appeal on this issue were not
supported by the evidence on the
record.
The cross appeal failed and
should be dismissed.
In conclusion, the appeal
succeeds in part and fails in
part.
The appellants are entitled to
the Otinshie village as
described in this
judgment. They are not entitled
to the vast land they claimed
for reasons stated in this
judgment.
Their claim to the vast land
failed. That part and the cross
appeal are dismissed.
S.A. BROBBEY
JUSTICE OF THE SUPREME COURT
S.A.B. AKUFFO
JUSTICE OF THE SUPREME COURT
J. ANSAH
JUSTICE OF THE SUPREME COURT
R.T. ANINAKWAH
JUSTICE OF THE SUPREME COURT
S.K. ASIAMAH
JUSTICE OF THE SUPREME COURT
COUNSEL:
E. A. Ackam for the Appellants.
Osafo Buabeng for the 1st
Respondent.
Joseph K. Mensah for the 3rd
Respondent.
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