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JUDGMENT
J piece or parcel of land
situate, lying and being at Zuta
and is bounded on the one side
by the property of the Agorve
People; on the second side by
the property of the Agorta
People; on the third side by the
property of the Plaintiff Family
and on the last side by the
property of the Korba Family,
damages for trespass, recovery
of possession and Perpetual
injunction. The writ was filed
on the 27th of May, 1992.
It is the Plaintiff's case that
the Defendants' forebears were
granted a license to live and
farm on the land in dispute and
they abided by this arrangement
till recent times when the
Plaintiff’s Awasiapedo Tsita
Clan realised that the
Defendants had assumed the role
of owners of the land and were
selling parcels of it. The
Defendants were confronted about
this turn of affairs, they
apologised and admitted they had
erred and asked for forgiveness.
Consequently, the Plaintiff and
other principal members of the
Family decided to take action to
secure the remaining land, which
action was by the issuance of a
writ in the Circuit Court at
Sogakope in the joint names of
the Plaintiff and Regent Kwawu
Adzovor III. Having been
improperly influenced by
consideration, Kwao Adzovor III
filed a motion in the Circuit
Court, Sogakope, dissociating
himself from the suit. The
Plaintiff was therefore
compelled to discontinue the
matter in Sogakope and file the
writ in the High Court in Ho.
In a statement of defence filed
on the 11th of June 1992, the
Defendants denied all the
averments of the Plaintiff. They
challenged the capacity of the
Plaintiff to institute the
action against them as he was
not a paternal member of the
Tsita Clan of Korve, neither
were there joint Heads of the
Tsita clan. The recognised and
sole Head of the clan is Torgbui
Kwao Adzovor IV of Korve. It was
the Defendants claim that a
large tract of land was founded
by their ancestor Kwao Adzovor I
and a portion of it was gifted
to their grandmother, Dzashiyor
Agbeve over 400 years ago.
Dzashiyor they pleaded was a
grand daughter of the founder of
the land, Togbui Kwao Adzovor.
They described themselves as the
fourth generation owners of the
land by inheritance and had been
in undisturbed possession till
date. They denied that they had
ever paid tolls or tributes to
the Plaintiff's alleged family
and the lands they sold were
their bonafide property to do
with as they wished. Their claim
again, was that the land in
dispute is called Dashiyor land
whose borders they gave as
bounded on one side by Akatsi
Anyidzime peoples land, on the
second side by Agbedrafor and
Agove peoples land, on the third
side by Agorta peoples land and
on the fourth side by Dzokui's
land. Defendants then counter
claimed for a declaration of
title to the land as described
above, Recovery of possession,
C5,000,000 general damages for
unlawful trespass and perpetual
injunction restraining the
Plaintiff, his agents, servants,
workmen, privies and assigns
from committing any further acts
of unlawful trespass to the
Defendants land and or
challenging their title to the
said Dzashiyor gifted land.
The Co-Defendant on the 5th of
June, 1992 filed an application
to join the suit. This
application was granted and he
was joined to the suit.
Co-Defendant also denied that
Plaintiff was a joint Head of
Family and asserted that the
Defendant's land was gifted to
their grandmother Dzashiyor. He
further pleaded that the
Plaintiff was a stranger from
Anyieveme and his father Sodzi
Bluawodzo Agbozo was a member of
the Letsofeawo clan. He was also
gifted Tsita clan land sharing a
common boundary with the
Defendants and given further
lands at Korve without objection
from any person. He therefore
counterclaimed for a declaration
that:
a. The Co Defendant is the
current and sole Head of the
Tsita Clan of Akporkploeme Zuta
in Avenor.
b. A further declaration that
the Plaintiff lacks legal
capacity to institute this
action, not being a paternal
member and Head of the Tsita
Clan of Akporkploeme Zuta.
c. A declaration that the
disputed land together with a
larger tract of land were all
originally founded by the
CoDefendant's great ancestor
Torgbui Kwao Adzovor I several
years ago.
d. A declaration also that
the now disputed portion was
gifted absolutely to the
Defendant's grandmother
Dzashiyor by Agbeve her father
and the then Head of the
Akporkploeme Zuta Clan of Tsita
several years ago.
e. A declaration that there
is no clan known and called
Awasiapedo Tsita Clan at
Akporkploeme Zuta of which
Plaintiff is a joint Head with
CoDefendant.
f. Perpetual injunction
restraining the Plaintiff, his
agents, servants, workmen,
privies and assigns from further
challenging and interfering with
the Defendant's title and
enjoyment of their inherited
gifted land of Dzashiyor their
grandmother.
After over a decade, the trial
of the matter eventually
commenced and was concluded
with the delivery of judgment in
2009. The gap of almost twelve
years before the commencement of
trial is not apparent on the
record and the reasons for this
delay cannot be ascertained.
The evidence led was largely
oral and the only documentary
evidence tendered during the
trial was the Survey Map ordered
to be drawn up by Acquah J, (as
he then was)
Judgment was entered for the
Plaintiff on all his reliefs and
aggrieved by that decision the
Defendants filed an appeal,
initially on the omnibus ground
that the judgment was against
the weight of evidence. It seems
from the record that the
Defendants sought, and were
granted leave to amend their
grounds of appeal and on the
25th of February, 2011, their
Counsel filed new grounds which
he entitled "Amended Grounds of
Appeal."
The Court of Appeal in a
unanimous decision set aside the
judgment of the High Court and
entered judgment for the
Defendants on their counterclaim.
The CoDefendant did not file an
appeal and the Court of Appeal
declined to make any orders
regarding his counterclaim.
It is against this judgment of
the Court of Appeal that the
Plaintiff has filed this present
appeal to the Supreme Court on
the following grounds.
i. The Court of Appeal woefully
failed to adequately consider
the totality of the evidence of
the Plaintiff
/Respondent/Appellant thereby
occasioning substantial mis
–carriage of justice.
ii. Since the Respondents were
unable to prove that a valid
customary gift had been made to
them, acceptance of the long use
of the land as evidence of a
gift was erroneous as that
evidence was contrary or
inconsistent with the custom of
the Ewe People as established or
proven on the evidence before
the court.
iii. The identity of the land in
dispute was clear on the
evidence and the exhibits (the
site plan) tendered in court.
The Court of Appeal therefore
erred in dismissing the
Appellant's claim for a
declaration of title simply
because he could not clearly
show his boundaries in his
evidence.
iv. Having found that the land
in dispute, whether or not
accurately described by the
plaintiff/Respondent/Appellant,
belonged to the Tsita Clan, the
Court of Appeal erred when it
failed to address itself to the
central question of whether by
Ewe custom, the
Defendants/Appellants/Respondents
who are obviously strangers
could, by reason only of their
long stay on the land, validly
acquire absolute ownership
thereof with a right of
alienation to other strangers
for physical development.
It is now settled that an appeal
is by way of rehearing and an
appellate Court ought to put
itself in the same position as
the trial court. Assibey v
Gbomittah & Commander Osei
[2012] 2 SCGLR 800. See also
Tuakwa v Bosom [2001-200] SCGLR
In the case of Bonney v
Bonney [1992-93] 2 GBR 779,
however the Supreme Court sounds
a note of warning by holding
thus
"...The argument that an appeal
is by way of rehearing and
therefore the appellate court
was entitled to make its own
mind on the facts and draw
inferences from them might well
be so but an appeal court ought
not under any circumstances
interfere with findings of fact
by the trial judge except where
they were clearly shown to be
wrong, or that the judge did not
take all the circumstances and
evidence into account, or had
misapprehended some evidence or
had drawn wrong inferences
without any evidence in support
or had not taken proper
advantage of his having seen or
heard in support of the
witnesses".
See also Fosua & Adu-Poku v
Adu Poku Mensah[2009] SCGLR 310.
In his written submission on
behalf of the Plaintiff, Counsel
argues that the Court of Appeal
would have come to a different
conclusion if it had totally
considered the case of the
Plaintiff in its entirety, i.e.
the pleadings, oral evidence and
Exh CE 1 which is the map drawn
up by the surveyor. He submitted
that there was no basis for the
finding by the Court of Appeal
that apart from Agorve, Agorta
and Akatsi lands, the boundaries
pleaded by the Plaintiff cannot
be identified with the land
described by the Plaintiff in
his statement of claim.
I will reproduce below the
finding by the Court of Appeal
which has so aggrieved the
plaintiff
"in the present case, the
Plaintiff described the land in
dispute in his statement of
claims bounded on one side by
the property of the Agorve
PEople; on the second side by
the property of the Agorta
People; on the third side by the
property of the Plaintiff Family
and on the last side by the
property of the Korba Family of
Akatsi. In his testimony in
court however, he described the
land claimed by him as bounded
on one side by Akatsi Anyidzime
people's land, on another by
Agorta People's land and on yet
another side by Mornume peoples
land. It is noted that, like the
Anane v Donkor case where apart
from three boundary owners, the
land described in the writ of
summons could not be identified
with the land shown on the plan
tendered, in the present case,
apart from Agorve, Agorta and
Akatsi lands, the boundaries
pleaded by the Plaintiff cannot
be identified with the land
described by the Plaintiff in
his Statement of claim"
With all due respect, the
learned Court of Appeal judges
allowed themselves to be led
astray by the untenable
arguments of Counsel for the
Defendants that the Plaintiff
described a different set of
boundaries in his evidence to
that which he gave in his
Statement of claim. In the first
place, the Defendants and Co
Defendant were equally
inconsistent in the description
of their boundaries in their
evidence.
If the logic of the Court of
Appeal is to be followed, then
the Defendants will also fail in
their counterclaim. Their
Counsel in his address to this
court conceded the point but
made a three sixty degree turn
to say that the matter be
remitted to the High Court for a
trial de novo. I would think
not! This is because Exhibit CE
1 clearly identifies all the
lands shown by the respective
parties as belonging to them.
There is no doubt about the
identity of the land in Exhibit
CE1 and the Court of Appeal was
therefore wrong in applying the
Anane v Donkor case which
applied to a land which could
not even be identified on a
drawn up plan. It is clearly
distinguishable from the present
case where Exh CE 1 has
competently captured the
respective lands of the parties.
This court ought to reject the
finding by the Court of Appeal
that the inconsistency in the
description of the boundaries of
the land is fatal to the claim
of the Plaintiff.
In the case of Effisah v
Ansah [2005-2006] SCGLR
Wood JSC (as she then was) held
"In the real world, evidence led
at any trial which turns
principally on issues of fact,
and involving fair number of
witnesses, would not be entirely
free from inconsistencies,
conflicts or contradictions and
the like. In evaluating evidence
led at a trial, the presence of
such matters per se, should not
justify a wholesale rejection of
the evidence to which they might
relate. Thus in any given case,
minor, immaterial and
insignificant or non critical
inconsistencies must not be
dwelt upon to deny justice to a
party who has substantially
discharged his or her burden of
persuasion... Where
inconsistencies or conflicts in
the evidence are clearly
reconcilable and there is a
critical mass of evidence or
corroborative evidence on
crucial or vital matters, the
court would be right to gloss
over these inconsistencies"
See also the unanimous decision
of this court in the case of
Jass Co. Ltd. & Anr. v Appau
& Anr. [2009] SCGLR 265,
holding 2 thereof, where the
Court held as follows:-
“The Courts have consistently
refused to declare title in any
claim for land when the land
cannot or has not been clearly
identified. As a matter of fact,
the contention that a party must
prove the identity of the
disputed land with certainty to
enable a court decree title in
the party does not mean
mathematical identity or
certainty.”
In the instant case, it is my
view that the Exhibit CE1 has
realigned the evidence over
matters which are more than a
century old and so cannot upset
the Plaintiff's case as he has
put across through his evidence.
On the whole of the evidence put
across, the identity of the land
is not in doubt and the Court of
Appeal errred in holding
otherwise.
The determination of this whole
case turned on whether or not
the Defendants were on the land
as licensees or through
inheritance by the gift of land
to their grandmother. As stated
earlier, the only piece of
documentary evidence was Exhibit
CE 1, the survey plan. The
remaining evidence was oral and
traditional. Both the trial
court and the Court of Appeal
cautioned on when the Court had
to rely on conflicting
traditional evidence to make a
finding.
The trial High Court cautioned
itself thus;
"The problem with traditional
history are varied. Some of
these are because they are oral
and handed down from generation
to generation, details are often
lost in the memory of time. The
faintest ink, it is said is
sharper than the sharpest
memory, there is the possibility
of intentionally fabricating
"new history" to serve a selfish
end. It is possible for the
truth to be lost with time, The
new generation may be completely
ignorant of the historical truth
and pursue falsehood with such
zeal and vigour as can mislead
the court. It is for the above
reasons that there is the need
to be very cautious whenever the
court is confronted with
choosing between conflicting
traditional history. In the case
of In re Adjancote Acquisition,
Klu v Agyemang II [1982-83] 2
GLR 852 the court of Appeal had
the opportunity to revisit and
review this problem and the
earlier authorities on the point
and came out with useful
guidelines..."
The court held that
1. The guiding principle on
which the courts had treated and
accepted traditional evidence as
sufficient to establish title to
land were that
(i) Oral evidence of tradition
was admissible and might be
relied upon to discharge the
onus of proof if it was
supported by evidence of living
people of facts within their
knowledge.
(ii) Where it appeared that the
evidence as to title was mainly
traditional in character on each
side, and there was little to
choose between rival conflicting
stories, the person on whom the
onus of proof rested must fail
in the decree being sought.
(iii) Where there was a conflict
of traditional history the best
way to find out which side was
probably right was by reference
to recent acts in relation to
the land.
(iv) where claims of parties to
an action were based upon
traditional history which
conflicted with each other, the
best way of resolving the
conflict was by paying due
regard to the accepted facts in
the case which were not in
dispute, and the traditional
evidence supported by the
accepted facts was the most
probable.
(v) Where the whole evidence in
a case is based on oral
tradition not within living
memory, it was unsafe to rely on
the demeanour of the witnesses
to resolve the conflict in the
case
(vi) Where the admission of one
party established that the other
party had been in long and
undisturbed possession and
occupation of the disputed land,
the party making the admission
assumed the onus to prove that
such possession was inconsistent
with ownership. The law was such
that a person in possession and
occupation was entitled to the
protection of the law against
the whole world except the true
owner or someone who could prove
a better title.
(vii) In a claim for title to
land, where none was able to
show title because of want of
evidence, or that the evidence
was confusing and conflicting,
the safest guide to determining
the rights of the parties was by
reference to possession."
See also this courts decision in
the case of Achoro & Anr v
Akanfela & Anr. [1996-97] SCGLR
209, holding 1, where
the court set out in detail the
evaluation of traditional
evidence where there are rival
versions these have to be
tested against background of
positive and recent acts. See
also Adjeibi-Kojo v Bonsie
[1957] 3 WALR 257 PC where it
was held that, it was well
settled that where in a land
suit, the evidence as to the
title to the disputed land was
traditional and conflicting (as
in the instant case) the surest
guide was to test such evidence
in the light of recent acts to
see which was preferable.
The Court of Appeal noted the
fact that the Trial Court had
cautioned itself on conflicts in
traditional history before
coming to the conclusion that
the land belonged to the
Plaintiff's Family. The Court of
Appeal however made the finding
that the Defendants had been on
the land for over 200 years
before the suit therefore the
long possession was consistent
with a gift. I am of the view
that the Court of Appeal erred
in that respect.
The trial judge found that the
evidence of long possession had
been rebutted. The court of
Appeal gave no reason for not
accepting the finding of fact of
the trial judge but rather held
that the long possession was
consistent with a gift.
I have cited the case of
Bonney v Bonney supra on
when an appellate court can
disturb a finding of fact. See
also Achoro & Anr v
Akanfela & Anr already
referred to supra, holding 2
thereof, Obeng v Assemblies of
God Church, Ghana [2010] SCGLR,
300, holding 2 thereof,
Gregroy v Tandoh & Anr [2010]
SCGLR 971.
The combined effect of all these
cases is that, the primary
findings of fact made by the
trial court and supported by
evidence on record is better
than an appellate court, like
the Court of Appeal who failed
to give any convincing,
compelling and reasonable basis
for setting aside the primary
findings made by the trial
court.
Unless the appellate court,
showed clear signs of perverse
reasoning, these findings by the
trial court as happened in this
case should not be disturbed.
Besides the evidence led does
not support the nature of a
gift, especially as the
Defendants insist that Dzashiyor
was a maternal member of the
Tsita clan from whom the
defendant derives title.
The plea of a gift, having
completely failed on the
evidence as found by the trial
court, the defendants claim to
ownership of the land fell
through. There was sufficient
evidence on record to back the
trial courts conclusion, because
Agbeve, the father of
Dzashiyour, who was said to have
gifted the land to her, was not
the person who originally
founded this land.
Agbevor, himself, inherited this
land by customary law, and it
was not his self acquired
property and could not have
gifted this land away without
the consent of the clan.
In Exhibit CE1, the Plaintiff's
land measures five hundred and
fifty two point 8 acres. The
Defendant's land shown was Three
Hundred and thirty four point
three two acres, The disputed
area is One Hundred and Thirty
seven acres. The Defendants had
led evidence that a piece of
Dzashiyor's land was carved out
for Dzokui I from who Plaintiff
descended. They were steadfast
in their allegation that the
land carved out for Dzokui from
their grandmother's land was
smaller than what was left for
their ancestress. This is not
borne out by Exhibit CE1. It has
been held that where there was
in existence a written document
and conflicting oral evidence
over a transaction, the court
was to lean favourably towards
the documentary evidence
especially if it was authentic
and the oral evidence
conflicting.
For the reasons given above, the
appeal succeeds, the judgment of
the court of Appeal is set aside
and that of the High Court
delivered on the 25th day of
February 2009 is restored.
(SGD)
V. J. M. DOTSE
JUSTICE OF THE SUPREME
COURT
(SGD)
W. A. ATUGUBA
JUSTICE OF THE SUPREME
COURT
(SGD)
ANIN YEBOAH
JUSTICE OF THE SUPREME
COURT
(SGD)
A. A. BENIN
JUSTICE OF THE SUPREM
(SGD)
J. B. AKAMBA
JUSTICE OF THE SUPREME
COURT
COUNSEL
DR. JOE ATTIPOE ESQ. FOR THE
PLAINTIFF/RESPONDENT/APPELLANT.
S. M. DZIKUNU ESQ.
FOR THE DEFENDANTS/APPELLANTS/
RESPONDENTS AND
CO-DEFENDANT/APPELLANT/
RESPONDENT.
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