• IN THE SUPERIOR COURT OF JUDICATURE
  IN THE COURT OF APPEAL
  KOFORIDUA - A.D 2016
  

G. T. ECOLOGICAL FARMS - (Plaintiff/Appellant)

vs.

GAMA OF TERPORSI, COMFORT MIREKU, SAMUEL AYERTEY AND KWAKU AYERTEY - (Defendants/Respondents)

JUDGEMENT

---

L. L. MENSAH, J.A.

This is an appeal by the Plaintiff/Appellant who will hereinafter be referred to as the Plaintiff against the judgment of the Circuit Court, Odumase-Krobo dated the 12^th day of December 2013 in favour of the Defendants/Respondents who will hereinafter be referred to as Defendants.

 

On the 3^rd of September, 2001, the Plaintiff issued a Writ of Summons and a Statement of Claim against the Defendants with the following reliefs:-

(a) Declaration of Title and Recovery of possession to a parcel of land situate at a place commonly called Brigade near Somanya and bounded as follows: On North by Nohipemi’s land measuring on that side a distance of 1,200 feet more or less, Langma’s land measuring 1708 feet, Dikatey’s land measuring 1477 feet, Kwadwo Okumi’s land measuring 3195 feet, on the East by Kwadwo Okumi’s land measuring 1803 feet; on the South by Brigade’s land measuring 5929 feet more or less and on the West by Kwade’s land measuring 1757 and Nuer Ologo’s land measuring 737 feet.

(b) General Damages for trespass.

(c) Perpetual injunction to restrain the Defendants, their agents, workmen, servants and all persons claiming any interest in the disputed land through them from interfering upon the land described in paragraph 1 (supra).

 

Upon service of the writ on the Defendants, they denied the claim of the Plaintiff and in their statement of defence counterclaimed as follows:-

1. 1^st and 3^rd Defendants claim for and on behalf of their respective families a declaration of the title to their respective lands described in their Statement of Defence and 2^nd Defendant claims for a Declaration of title of her land described in the Statement of Defence.

2. 1^st and 2^nd Defendants claim for the payment of ₵1,200,000 (GH₵120.00) and ₵500,000 (GH₵500 (sic) being the value of maize seized respectively.

3. General Damages for trespass.

4. Perpetual injunction against the Plaintiff, his successors, assigns or servants from interfering in the Defendants’ possession of their respective lands described in their statement of defence.

 

After a full-length trial, the learned trial judge dismissed the case of the Plaintiff and entered judgment for Defendants in their counterclaim with general damages and costs in favour of each Defendant.

 

It is against this judgment that the Plaintiff launched this appeal.

 

THE GROUNDS OF APPEAL

 

The grounds of appeal filed by the Plaintiff are:

1. That the judgment is against the weight of evidence.

2. That the learned trial judge erred by entering judgment for the counterclaim of the Defendants/Respondents when no description had been given by them of the dimensions of the land they were claiming.

3. That the learned trial judge erred by entering judgment for the counterclaim of the Defendants/Respondents by failing to give detailed reasons for entering judgment for the Defendants/Respondents.

4. That further grounds of appeal will be filed upon receipt of the record of proceedings.

 

Although the Plaintiff intimated in the notice of appeal that further grounds of appeal would be filed upon receipt of the proceedings, no such further grounds were filed.

 

Given that each of the four Defendants has their case to tell severally, it is necessary to state the case of each party, starting with the Plaintiff.

 

The case of the Plaintiff in substance is that he purchased the disputed land in 1998 from Buzeki Nartey Wayo, Nartey Ankrah and Otu Kwesi. Before the purchase, he made a search at the Lands Commission, Koforidua where it was found that the land was unencumbered. He got a surveyor to map out the land and he prepared site plan on the land, admitted Exhibit A. He then went into occupation. Before the registration was processed, the Regional Surveyor approved of the site plan, drawn by his surveyor.

 

Plaintiff said after going into possession he built two drainage dams for irrigating the farm. He planted mango, palm oil tress, cashew, cassava, maize and vegetables. He has a cattle ranch containing 600 herds, 100 sheep and a poultry.

 

Plaintiff said having invested so much in the land, the Defendants have trespassed into same, and threatened his workers. They disturbed the dams and burned his oil palm trees and were harassing him. He therefore turned to the court to protect his property.

 

Each of the Defendants who told their own case severally denied the claim of the Plaintiff in its entirety.

 

The 1^st Defendant in his evidence said he got to know the Plaintiff through this case when he instituted this action against him in respect of his land at Akogyam near Abokobi Dorsi. The land was originally founded by his grandfather Tetteh Kuwornu by settlement about 150 years ago, when the Krobos were living on the mountains. The land was then a virgin forest. Having founded the land, his grandfather reduced same into cultivation with mango tress and foodcrops, with some of the mango trees still standing on the land.

 

After the death of his grandfather, the land passed to his father and from his father to him. His grandfather died in 1939. He like his grandfather and father before him, was cultivating the land.

 

The 1^st Defendant stated the boundaries of the land.

 

1^st Defendant said when Plaintiff entered his land and erected pillars on same and started ploughing same, he summoned him before the Korno of Yilo Krobo. The Konor however did not hear the case before the Plaintiff issued the writ against him.

 

In her testimony about her ownership of the land in dispute, the 2^nd Defendant said she knew the Plaintiff’s managing director as her friend. 2^nd Defendant said when she bought her piece of land at Abokobi-Dorsi in 1997, she told the Plaintiff’s Managing Director of her purchase. She therefore led him to the land and showed him the land owners. He expressed interest in having the land purchased in the area. 2^nd Defendant said she paid for her 7 1/2 acres land by instalment which were receipted by her vendor Samuel Teye Opata.

 

A further evidence of the 2^nd Defendant is that after buying the land, she planted same with mangoes, cassava and maize until in 2000 when the Plaintiff started disturbing her and laying adverse claims to the land. She finished paying for the land and was about to register same when the Plaintiff instituted his action against her in 2007. 2^nd Defendant’s receipt were admitted Exhibits 1 to 1Y series.

 

2^nd Defendant said his vendor died before he could be able to come and testify in her favour.

 

Although 3^rd and 4^th Defendants are siblings, each gave a separate account of his ownership of the disputed portion of the land they live on.

 

In his representation of his ownership of the land in dispute, the 3^rd Defendant testified that he inherited the disputed land which is his ancestral land from his father some 25 years ago. He cropped the land with food crops such as maize, cassava, vegetables and mangoes.

 

3^rd Defendant said the Plaintiff came to the land and it was in 2001 that the Plaintiff took action against Defendants. The 3^rd Defendant concluded his evidence-in-chief that when earlier before this instant action some named people lay adverse claim to the land, his head of family sued them in court and when he died, he 3^rd Defendant was substituted for him.

 

Finally in his evidence about why the disputed land was his, the 4^th Defendant said the disputed land was acquired by his ancestors. That his ancestors were farming on the land when the Krobos were living on the Krobo mountains.

 

The 4^th Defendant traced how the land passed from generation to generation till they also inherited same and cultivated different food crops on it till the Plaintiff started to lay adverse clam to the land. 4^th Defendant maintained that they have been living on the land for generations.

 

Each of the parties called witnesses and their evidence and other documentary evidence thrown in for good measure will be considered where germane.

 

ARGUMENT.

The first ground of appeal considered by the Plaintiff’s counsel is that the judgment is against the weight of evidence.

 

The position of the law when an Appellant with the omnibus ground of appeal, charges that the judgment is against the weight of evidence,is that the appellate court will be under obligation to go through the entire record of appeal to satisfy itself that the party’s case was move probable than not. Further that the Appellant has to demonstrate what lapses were in the judgment which he was complaining about. He has to convince the appellate court that there were certain pieces of evidence in the record of appeal which were not considered by the trial court, and if such pieces of evidence were properly considered, the decision would have been made in his favour. See Abbey & Others vs. Antwi (2010) SCGLR 17.

 

The Supreme Court came to the same conclusion in the case of Oppong v. Anarfi (2011) 1

SCGLR 556 holding 4 where it is thus held:

 

On submission by an Appellant that the judgment of the trial court was against the weight of the evidence led, even though it was ordinarily within the province of the trial court to evaluate the veracity or otherwise of a witness, it was incumbent upon an appellate court in such a case to analyse the entire record of appeal, take into account the testimonies and all documental evidence adduced at the trial before arriving at its decision, so as to satisfy itself that, on the preponderance of probabilities, the conclusion of the trial judge were reasonable and amply supported by the evidence.

 

In his address in this instant case on the omnibus first ground of the appeal the learned Plaintiff’s counsel submitted that the Plaintiff acquired the disputed land by customary grant which was subsequently reduced into writing. After the transaction, libation was poured in the presence of witnesses. The search report together with the site plan and other documents were submitted to the Lands Commission, Koforidua for registration. That the Plaintiff’s evidence was corroborated by the PW1 Otu Kwasi, the vendor of the Plaintiff.

 

 

The learned counsel further submitted that the sale comprising the payment of ₵250,000 per acre for a parcel of land in the extent of 253 acres, the pouring of libation in the presence of witnesses, the presentation of drinks and sheep, the publication of the transaction, the site plan showing the exact measurements of the land, are incidents which characterize a valid customary sale. That the subsequent submission of the documents to the Lands Commission for registration could only add to, but cannot take away the effect of the grant made to the Plaintiff by customary law.

 

Counsel refers to Bruce v. Quarnor (1959) GLR 292 and Darkeh & Anor vs. Lartey (1963) 1 GLR 362 holding 2

 

A further argument of learned Plaintiff’s counsel is that the Plaintiff did not just lead evidence on how he acquired the disputed land, but also how he took possession of the same, building two dams for fish farming, established a cattle ranch, rearing sheep and chicken and put a portion of the land into mango plantation as aforementioned.

 

In reaction that the judgment is against the weight of evidence the learned Defendants’ counsel dismissed the argument that the Plaintiff’s counsel has led the requisite evidence to connect it to the land it claimed it had purchased.

 

Counsel contended that though the Plaintiff’s managing director claims to make a search at the Lands Commission at Koforidua prior to the purchase, obtained a site plan and made a search at the same Lands Commission which declared the land unencumbered, the Plaintiff failed to produce such a search report. Not even when pressed under intense cross-examination, and when the avenue was opened to him to produce such a document to convince the court that he has document over the dispute land.

 

Counsel contended that if indeed it is true that the Plaintiff has document on the disputed land it would have tendered same in evidence in support of his testimony. Therefore within the authority of the case of Owusu v. Tabiri (1987-88) 1 GLR 287, the Plaintiff failed to produce the necessary evidence.

 

A further argument of Defendant’s counsel on the issue of the Plaintiff’s acquisition of the disputed land with documentary evidence is the desperate attempt in tendering, the site plan Exhibit A, found at page 405 in the record of appeal. A look at Exhibit A, counsel argues, is that it was post-dated against the date of the said acquisition in 1998 and therefore same cannot be said to form part of the purported sale as alleged by the Plaintiff. That the Appellant failed to offer any credible explanation for its failure to produce any copy of the site plan supposedly used for the search.

 

As there are several aspects of the omnibus first ground of the appeal, it is necessary to first look at the argument of the two counsel on the Plaintiff’s acquisition of the disputed land.

 

As rightly mentioned by the learned Defendants’ counsel, there seems to be a lacuna in the evidence of the Plaintiff that he has the necessary document. This includes the site plan, search report etc. The Plaintiff’s counsel is heard to say that the acquisition of the land by the Plaintiff is primarily a customary grant and that the site plan and search report are added bonus and not sine qua non to prove his ownership of the disputed land.

 

Granted the transaction is a customary grant in which the Plaintiff alleged libation was poured, a sheep was slaughtered, and a publicity was made unfortunately the Plaintiff failed to lead a scintilla of evidence of the people who witnessed the transaction for him. It was as if the Plaintiff was trying to introduce the incident of getting the land through customary grant in order to escape the consequences of running away from his being confronted with the reality that the Plaintiff has no documentary evidence of the transaction.

 

As a trial court, the learned judge found as a fact that the sale of the land to the Plaintiff should be taken out of the ambit of a customary grant.

 

What this means is that the Plaintiff’s acquisition can have only the other alternative which is by documentary evidence. It is therefore not surprising that the Plaintiff identified his transaction with all the incidents of a sales transaction other than a customary sale.

 

Since the Plaintiff himself introduced the incident of a search at the Lands Commission at Koforidua before the transaction, he should be held to this admission. Yet when confronted in cross-examination which the trial court was at pains to recap, the Plaintiff was found wanting. It is worth recapping that area of the cross-examination as follows:-

Q. You told the court that before you went into possession you conducted a search. Do you want to edge this testimony.

A. I do not want to edge this testimony.

Q. Where did you conduct the search.

A. I conducted the search in Koforidua.

Q. You were given a report.

A. I was given a search report

Q. Can we see the search report.

A. I submitted that document with other documents to the Lands Commission Registry.

Q. Are you saying that the search report you got was part of the documents you sent for registration.

A. It was to assist in the registration and that is why I added the search report to the other document.

 

The learned trial judge in his judgment wondered how the Plaintiff could not produce a search report he said he conducted in 1998 before the transaction after a 10 year period. As the learned judge rightly puts it in the judgment on page 336 of the record of appeal.

 

The Plaintiff also told the court during cross-examination by counsel for the Defendants that he has sent his documents that included a search report from the Lands Commission Koforidua for registration but no indenture was produced by the Plaintiff during the trial and up to the time addresses were being filed by counsels which period spent (sic) over ten (10) years. What was the evidence that the Plaintiff acquired the land in dispute from PW1 and one Buzeki Nartey and since no search report was tendered, it was difficult for the court to know whether the land Plaintiff occupied was encumbered or not at that time?

 

The learned trial judge went on to observe (and rightly so) that the failure of the Plaintiff to tender his search report “made it difficult for the court to ascertain whether or not the Plaintiff actually bought all the land in dispute and whether the Defendants trespassed unto portions of the said land”.

 

The trial judge found also as a fact that the Plaintiff under cross-examination did not say that the grant made to him by the PW1 and Buzeki was a customary grant which did not require writing as provided under section 3(1)(h) of the Conveyancing Act, 1975 NRCD 175. That since the Plaintiff said he sent the document for registration, it follows that the grant was not customary and therefore the transaction fell under section 1 of NRCD 175. The judge made a positive finding of the fact that the Plaintiff did not acquire any interest in the land from his vendors under customary law.

 

Referring to such cases of Amefinu v Odametey (1977) 2 GLR 135 and Asare v. Brobbey (1971) 2 GLR 331 CA; Ayetey v. Mantey (1984-86) 1 GLR 552 CA, the trial judge found that since the transaction was not a customary grant and same was not registered, the transaction was invalid.

 

Another disability of the transaction of the Plaintiff’s land acquisition is the Plaintiff’s failure to call the farmers he said were present at the sale. What is more, Plaintiff failed to call the boundary owners, mistaking even the 1^st Defendant who was the son of Teye Langunma that he said he shared boundary with.

 

Again apart from the PW1 that he called, none of the two other vendors of the Plaintiff was called build up the case of the Plaintiff. He also failed to call his boundary owners.

 

Again when pressed under cross-examination whether he has a receipt to evidence the transaction, the Plaintiff answered in the negative. As this brief exchange between Plaintiff and the Defendants’ counsel goes.

Q. You made payments to the vendors. You made upfront payment to your vendors.

A. I made for the purchase.

Q. Did you take a receipt.

A. I did not take a receipt for that payment. There are so many ways of conducting transactions. Many people were present and a libation was poured.

 

The trial judge observed that the Plaintiff failed to call those who were present during the payment and during the pouring of libation to give evidence, as well as those who witnessed the slaughtering of the sheep. After all the transaction was not out of living memory when the Plaintiff’s witnesses, or at least some would have been alive to clear the air about the customary nature of the transaction.

 

In both his written submission and reply to the written submission of the Defendants, the learned Plaintiff’s counsel referred to Darkeh & Anor. vs. Lartey (1963) 1 GLR 362 SC.

 

Because of the premium the Plaintiff’s counsel puts on the Darkeh v. Lartey (supra) and reproduced same, it is necessary to recap it here as follows:-

 

Whether a Defendant claims land by right of a grant made under customary law or claims under a deed of conveyance his position in law is unaffected. If a “paper writing”, being evidence of that grant, contains an exact description of the land in dispute and was made prior in time to a deed of conveyance by virtue of which a plaintiff claims the same land or if the Defendant calls as witnesses persons who were present at the time of the prior grant to testify as to the identity of the land granted to him, the Defendant would succeed.

 

The learned Defendant’s counsel dismissed the above case as inapplicable to this case and we entirely agree with him. The impression which the Plaintiff is creating in this instant case is that he has a hybrid (grant) of customary transaction and conveyance under the Act that is both customary and also under documentary.

 

The trial court found that having proclaimed loudly that he has all the relevant documents prepared by a surveyor, a search report and sent them to the Lands Commission for registration, the Plaintiff cannot take cover under a customary transaction. Indeed in holding 1 of the Darkeh & Anor. vs. Lartey (supra), the court held that

 

there is no presumption of law by which ownership of or possessory title to land is presumed from the existence of any of the acts by which possession or occupation is proved. It is in every case, a question of facts depending on the particular circumstances of the case, whether the acts proved establish possessory rights or ownership (our emphasis).

 

It is to be mentioned that this case was decided before the enactment of the Evidence Act, 1975 NRCD 323 where in section 48 of the Act it provides that

1. The things which a person possesses are presumed to be owned by that person.

2. A person who exercise acts of ownership over property is presumed to be the owner.

 

This also explains why the case of Bruce vs. Quarnors & Others (supra) cannot vindicate the Plaintiff. This is because the instant case is not a subject-matter of a stool grant to the subject of a stool.

 

In his address the learned Plaintiff’s counsel made a big show of the fact that the Plaintiff went into effective occupation of the said land by building two dams for fish farming, cattle ranch, sheep rearing, chicken rearing, mango plantation etc. as hereinbefore stated.

 

The Plaintiff is also said that by Exhibit “A”, his site plan, he has 253 acres of land sold to him.

 

As against the above, the trial judge found as a fact that the PW1 vendor of the Plaintiff Otu Kwasi was fumbling over what exactly was the acreage of the land he sold to the Plaintiff. After all PW1 was not the only one who sold the land to Plaintiff. There were two others. Now Otu Kwasi said the land is over 200 acres, at another time he said same is about 200 acres. Atuobi who Plaintiff said he engaged to survey the land and prepare the site plan was not in court to testify. This makes identity of the Plaintiff’s land at large. See Kwabena vs. Atuahene (1981) GLR CA; Odametey v. Clocuh 1989-90) 1 GLR 14; and Adwubeng v. Domfeh (1996-97) SCGLR 660.

 

Indeed according to the PW1 vendor of the Plaintiff, he took the surveyor Atuobi to the land to prepare the site plan. He was therefore surprised to see the site plan Exhibit A for the first time only in the court room. What this means is that from the Plaintiff own vendor, Exhibit A was prepared arbitrarily without he Plaintiff’s vendor’s input. This perhaps explains why the acreage of the Plaintiff’s land is at large.

 

By pointing to a customary grant and at the same time flaunting Exhibit “A” into the face of the court, the Plaintiff is trying to be smart and this clearly shows that he has failed to identify the land he is calling upon this court to grant in his favour.

 

I say because the difference between the over 200 acres or about 200 acres sold to the Plaintiff by PW1 and the purported 253 acres on the supposed Exhibit “A” is too big a difference. Indeed the PW1 vendor and PW2 Kwabena Gyadu failed to know the identify of Plaintiff’s land. As held in several cases, a party seeking declaration of title to land must positively identify the land so that the court can grant the precise area to him. See Akoto II & Others v. Kavege & Others (1984-86) 2 GLR.

 

 

Given the hybrid nature of purchase which the Plaintiff said was the nature of his transaction with his vendors, I took a look at Brown v. Quarshiegah (2003-2004) SCGLR 930 to see whether there can be any respite for the Plaintiff. However there is no such succour for the Plaintiff.

 

If it were not that the Plaintiff was engaging in hide and seek simultaneously under customary grant and at the same time saying that he has sent all the documents which documents remain at the Lands Commission till kingdom come, one is uneasy about the probative value of Exhibit “A”.

 

Indeed it is held in several of cases that the mere fact of long possession of a piece of land does not by itself ripe into ownership. See Birimpong v. Bawuah (1991) 2 GLR 20 CA. The fact that the Plaintiff in this instant case had hardly settled on the land before the Defendants started to challenge him from all sides means how his ownership if any, can hardly be said to be indefeasible.

 

At rightly found by the trial judge, the Plaintiff could not get any boundary owners to come and fortify his evidence, the four Defendants between them assembled four witnesses to bolster their case. Some of these are DW1 Tetteh Badu, Abayete Kwame Aketewa for 3^rd and 4^th Defendants.

 

The learned Plaintiff’s counsel must be slow in invoking such cases as Abakam Effiana Family

Others vs. Mbibado Effiana Family & Others (1959) GLR 362; and Adjei vs. Acquah (1991) 1 GLR 13 at page 29. In these two cases & others like them, there are normally two families who trade traditional evidence as to which of them has ownership, control and possession of the dispute land.

 

It is when the court finds it difficult to choose from the rival claims that the court has to fall on relevant facts of acts of ownership rights exercised over the disputed land.

 

The conflict of traditional history may stretch back several generations from living memory. In the instant case however, the contest is not between two families trading a clash between their competing traditional rival histories. It is the case of the Plaintiff claiming that he had the disputed land granted him in or about 1998 in the presence of several witnesses. However the 1^st, 3^rd and 4^th Defendants are claiming that their ownership over the disputed land stretched back into the domain of history. As aforementioned, the learned trial judge after hearing both parties and copiously evaluating the evidence, preferred the evidence of the Defendants collectively as against the Plaintiff whose evidence is riddled with inconsistencies and contradictions.

 

Given the peculiar circumstances of this case and the uneven bizarre boundary described by the Plaintiff in his purported Exhibit “A” which the trial court found to be wanting, we think we have no ground to disturb the finding of the learned trial judge on the omnibus ground that the judgment is against the weight of evidence.

 

In the case of Ababio vs. Bekoe II (1996-97) SCGLR 392 referred to by learned Defendants’ counsel, the Supreme Court has this to say:

 

Not having seen the witnesses, the appellate court was in a permanent position of disadvantage against the trial judge. Consequently unless it could be shown that the trial judge had failed to use or had palpably misused his advantage, by for example, failing to observe inconsistencies or indisputable fact or material probabilities, the higher courts ought not to take the responsibility of reversing conclusions so arrived at merely as a result of their own comparison and criticisms of the witnesses and of their own view of the probabilities of the case.

 

See also Effisah v. Ansah (2005-2006) SCGLR 943.

 

In the instant case, we find no reason to disturb the findings of the trial judge, on this ground.

In the result, same is hereby dismissed.

 

GROUND 2:

 

The second ground argued by the Plaintiff’s counsel is that the Judge erred by entering judgment for the counterclaim of the Defendants/Respondents when no description had been given by them of the dimensions of the land they were claiming.

 

On this ground the Plaintiff’s counsel submitted the well-known principle of our law that a person seeking recovery of title to land must do so by the strength of his own title and not by reason of the weakness in the title of the person in possession. This is the finding of the Supreme Courtreproduced by Plaintiff’s counsel in the case of Odametey v. Clocuh and Another (1989-90) 1 GLR 14 which we do not want to reproduce in this judgment.

 

Counsel also referred to the case of GIHOC vs. Hanna Assi (2005-2006) SCGLR 458 on issue of a counterclaim where we have the following on the responsibility thrust on the counterclaiming Defendant:

 

A counterclaim is substantially a cross-action, and not merely a defence to the Plaintiff’s claim. It is a cross-claim which the Defendant may raise in the very action brought against him by the Plaintiff instead of himself bringing a separate, independent action against the Plaintiff.

 

What flows from the above, counsel submitted, as it is necessary for a counterclaiming Defendant as aforementioned, is that a party to a counterclaim must succeed by the strength of his claim but not by reason of the weakness of the other party to the counterclaim. This is the position of the Supreme Court in Aryeh & Akakpo v. Ayaa Iddrisu (2010) SCGLR 89 at 901.

 

A party who counterclaims bears the burden of proving his counterclaim on the preponderance of the probabilities and will not win on that issue only because the original claim failed. The party wins on the counterclaim on the strength of his own case not on the weakness of his opponent’s case.

 

In the instant case, from the issues of the competiting claims of the Plaintiff and his counterclaiming Defendants counterpart, the learned Plaintiff’s counsel entered into another round of re-cycling and rehashing the issue of identity of the disputed land which has been settled in ground one of this appeal.

 

We have looked at such an ancient case as Akinolu Baruwa v. Ogunshola (1939) 4 WACA 76 at page 82; Anane v. Donkor (1965) GLR 188 at 192 and Agyei Osae v. Adjeifio (2007-2008) SCGLR 499 at 504.

 

These cases between them put emphasis on the need for a party to positively identify the land being claimed.

 

A constant and tedious refrain of the learned Plaintiff’s counsel in this instant case is his allegation that the Defendants have failed to call their boundary owners to come and testify and that some of those not named in their description of the land in the pleadings came to testify on their behalf.

 

The reality of the judgment which the Plaintiff is indicting is that the learned trial judge found as a fact that as to between the Plaintiff’s witnesses and boundary owners on the one hand, and those of the Defendants, the case of the Defendants are far in front of that of the Plaintiff. This is because the learned trial judge dissected the case of each of the parties before reaching his verdict.

 

The Plaintiff’s counsel is also heard to attack the evidence of the 2^nd Defendant who said she acquired her land by purchase from her vendor who had gone into eternity. However 2^nd Defendant’s witness Jude Kojo Wilberforce Akpete’s evidence in support of Exhibits 1 to 1Y of 2^nd Defendant being the purchase receipts is so full of candour and perspicacity that as a close relative of 2^nd Defendant’s deceased vendor, he could not have fabricated the evidence. The evidence of the DW2 shows that it was exactly the 7½ acres of land which Kwasi Opata sold to him before he died.

 

The same goes with the evidence of Tetteh Badu the DW1 who testified for the 1^st Defendant.

 

Further, in the evidence for the case of the 3^rd and 4^th Defendants who are siblings, and like 1^st Defendant, had their lands passed from generation to generation. In other words, the substance of the evidence of the 1^st, 3^rd and 4^th Defendants is that they are on their ancestral land since time immemorial. They cannot by law show any documentary evidence as proof of their respective titles.

 

This is because by section 3 of the Conveyancing Act, 1973 NRCD 175, the Defendants as aforementioned, had their land passed from generation to generation save the 2^nd Defendant who acquired her land by purchase.

 

The learned trial judge also examined the evidence of Abayete Kwame Aketewa the witness of the 3^rd and 4^th Defendants and found them in support of their ownership of respective lands.

 

Indeed, the questions in the cross-examination hurled at the 3^rd and 4^th Defendants’ witnesses the DW4 that he shares common boundary with the 3^rd and 4^th Defendants was not in any way dented by Plaintiff’s counsel in cross-examination.

 

The following exchange between the Plaintiff’s counsel and DW4 Abayete Kwame Ketewa is significant:

Q. I am putting it to you that you do not share any boundary with the 3^rd and 4^th Defendants.

A. I share boundary with the 3^rd and 4^th Defendants.

Q. This is because the 3^rd and 4h Defendants do not own land within the disputed area.

A. When your father dies and he owns property, it is transferred to the children and 3^rd and 4^th Defendants’ father owned land within the disputed area and same has become that of the 3^rd and 4^th Defendants.

Q. I am putting it to you that the land did not belong to the fathers of 3^rd and 4^th Defendants or any of their ancestors for same to become theirs.

A. I know it is ancestral land for the 3^rd and 4^th Defendants.

Q. It is not true that you share boundaries with those you have mentioned.

A. They are my boundary owners. We know each other on the land.

Q. Even though you claim to be a boundary owner with them they do not know you as a boundary owner.

A. They know me as a boundary neighbor and that is why 3^rd and 4^th Defendants have called me to give evidence on their behalf.

 

In our opinion the Plaintiff’s counsel has failed to convince us on the failures and inadequacies exhibited by the trial judge on the 2^nd ground of appeal that the Respondents failed to give description and dimensions of the land they were claiming. On the contrary, the learned trial judge has adequately dealt with the evidence given by each of the parties and their witnesses. It is for this reason that we see no reason why we should disturb the findings of the trial court. In the result, this ground of the appeal is hereby dismissed.

 

GROUND 3.

In ground 3, the Plaintiff charged that the judge erred by entering judgment for the counterclaim of the Defendants/Respondents by failing to give detailed reasons for the entering of judgment for the Defendants/Respondent.

 

In his submission on this ground, the learned counsel for the Plaintiff submitted that “It is trite law that the judgment must contain the findings of the court that informed the conclusion of the court. It is therefore imperative on the judge to give detailed reasons for a particular judgment”.

 

The Plaintiff’s counsel referred to the case of Quaye v. Mariamu (1961) GLR 93. At page 95 of the law report, the learned Plaintiff’s counsel reproduced the entire paragraph 3 of Van Lare JSC’s judgment on the apparent failure of the trial judge in that case to resolve the primary facts and failed to make the findings in controversy between the parties.

 

The only relevant portion of Van Lare JSC’s judgment which is relevant for the purpose of Plaintiff’s counsel’s argument in this appeal is that

 

...it is a trial judge’s duty to make up his mind one way or the other on the primary facts and when he has made up his mind he should state his findings and then proceed to apply the law. It is only when that his court can properly adjudicate as to whether the facts are properly found or the inferences properly drawn or the law properly applied.

 

Again, Plaintiff’s counsel referred to the case of Annous v. Appoh (1980) GLR 882 and incoherently picked from the minority opinion of Charles JA. The snap facts in that case was that the ordinary bench of the Court of Appeal gave a judgment allowing on appeal from a decision of the Circuit Court in respect of a plot of land on 13^th February 1979. The court’s reasons were to be given later. On 29^th March 1979, the court gave its reasons for the 13^th February 1979 judgment. The losing party applied to have the decision of the ordinary bench reviewed by the full bench. The main issue for consideration at the application is whether or not the judgment of the ordinary bench was delivered on 13^th February, 1979 when ownership of the disputed land was decreed in the Respondent or on 29^th March 1979 when the reasons for the judgment were given.

 

Unfortunately all the excerpts from the minority judgment of Crabbe JA cannot avail the Plaintiff in this instant case. In any case, the law is settled that the effective date of a judgment is when the court pronounces the judgment and not on the date the reasons are given.

 

In this instant case, we were expecting the learned Plaintiff’s counsel to demonstrate from the record of appeal, the documents, the evidence of the parties and those of their witnesses and the relevant statutes and authorities that there is a paucity of reasons given by the trial court. The Plaintiff’s counsel however failed to scale this hurdle.

 

 

In his reaction to this ground of the appeal that the trial judge failed to give detailed reasons for entering judgment for the Defendants/Respondents, the Defendants’ counsel calls for dismissal of this ground of the appeal.

 

We think the learned trial judge did not give a snap judgment found on page 298-343 of the record of appeal. He meticulously, on the contrary, as aforementioned, set the issues down, discussed all the relevant issues raised by each party. He reached for the relevant sections of the Evidence Act, and the Conveyancing Decree, particularly sections 1, 2, 3 and all its sub-sections in relation to the oral grant under customary law etc. The learned trial judge meticulously looked at the size and acreage of the Plaintiff land vis a vis the ancestral land inherited by the 1^st, 3^rd and 4^th Defendants. He also considered the evidence of the various witnesses.

 

In our opinion, the trial court has competently handled the issues raised by the parties. Having applied the relevant statutes and assigned reasons why he preferred the Defendants’ case to that of the Plaintiff’s, we think the Plaintiff’s indictment of the judgment that it lacks adequate reasons is not borne by the record of appeal. It is in the light of this that ground 3 also suffers to be dismissed and same is hereby dismissed.