IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL
ACCRA - A.D 2018
KOFI ADU BOAHENE - (Plaintiff/Appellant)
EMMANUEL TEI KWADWO NARH -(Defendant/Respondent)
DATE: 19 TH APRIL, 2018
CIVIL APPEAL NO: H1/63/17
JUDGES: MARIAMA OWUSU (MRS.) JA (PRESIDING), E. K. AYEBI JA, CECILIA HANZY SOWAH JA
MR. FRANK KOTEY NIKOI FOR PLAINTIFF/APPELLANT
MR. ACQUAYE FRANCIS ALEXANDER FOR DEFT/RESPONDENT
This appeal is against the judgment of the Circuit Court, Amasaman dated 7th October 2016. The appellant is the plaintiff at the trial court. In his amended writ of summons, he claimed against the defendant/respondent:
(a) Declaration of title to the land described in paragraph 3 of the statement of claim.
(b) Perpetual injunction restraining defendant whether by himself or his agents, assigns, privies or anyone claiming through him from ever laying claim to the land and from further entering the land.
(c) Damages for trespass and cost.
In paragraph 3 of the statement of claim, the land is described as “ALL THAT PIECE OR PARCEL OF LAND situate, lying and being at MEDIE near in Ga West Municipal of the Greater Accra Region aforesaid and containing an approximate Area of 0.18 acre or 0.07 Hectare more or less on the North East by Lessor’s land measuring 98.4 feet more or less, on the South West by Accra-Nsawam road measuring 98.4 feet more or less, on the South East by Lessor’s land measuring 83.3 feet more or less, on the North West by Lessor’s land measuring 74.0 feet more or less”.
According to the plaintiff he bought the said piece of land from Hawa Botchway and grandson Habibu Ashiley of the Botchway family of Medie. He bought the land at forty million cedis (now GH¢4,000.00) in July 2003. He then constructed 3 (three) boreholes and cesspit tank on the land. The boreholes he said were to serve as source of water supply to his pure water factory on an adjacent land. But the defendant has encroached on the land by 3 (three) feet and was hurriedly building on it.
Defendant denied the claim of the plaintiff in his statement of defence. His case is that in 1992 he acquired a piece of land from the lawful representative of the Tetteh Botchway family of Osu at Medie for ¢300,000.00. The said lawful representative of Tetteh Botchway family is the same Madam Hawa Botchway, the plaintiff’s vendor. He said he was given an indenture on 9th October 1993. He walled the land and started putting up a guest house on it. Later, the Botchway family in need of money, sold the disputed land which is 35x100 feet in front of his land to him at ¢110,000.00.
On the purchase of this piece of land, the indenture executed in his favour earlier on was withdrawn. In its place a final receipt of ¢410,000.00 (now GH¢41.00) was given (i.e. ¢300,000.00 plus ¢110,000.00). According to him, the total land he acquired measured 110.3ft on the North, 110.9ft in the East, 100.4ft in the South and 110ft on the West containing an approximate area of 0.268 acre more or less.
Defendant said he allowed his brother to construct a panel beating and straightening workshop on the plot. Thereafter, he made his cousin a caretaker of the land. He then travelled out of the country and in the absence of his cousin when he became an assemblyman, plaintiff constructed boreholes and a cesspit tank on the land. His attempt to destroy them led to an invitation by the Amasaman Municipal Assembly. Right now, defendant said he has a wooden structure in which he keeps his building materials for his hotel project on the land.
At the trial, plaintiff called two witnesses while the defendant called one. In the judgment of the trial Circuit Court Judge, she held the view that on a balance of probabilities, the plaintiff was unable to adduce sufficient and cogent evidence to establish his claim for a declaration of title to the land in dispute and proceeded to dismiss the reliefs sought by the plaintiff. Aggrieved by the dismissal of his claim, the defendant appealed against the entire judgment on the grounds that:
(a) The learned Circuit Judge erred in law and fact when she held that plaintiff could not prove his claim in the light of the evidence on record.
(b) The honourable Judge erred when she held that defendant had explained to her satisfaction that it was defendant vendor and not himself that made alterations in his indenture.
(c) The learned Judge erred when she held that defendant did not fence the entire land he acquired because he intended to erect a special fence wall on the disputed land.
(d) The Judge erred when she held that the parties’ common vendor having divested herself of the disputed land by first leasing it to defendant cannot therefore lease the same to the plaintiff.
(e) The learned Judge erred when she held that the land in dispute is the same as the land being claimed by both parties.
No additional grounds of appeal were filed as indicated.
Before I consider the merits of these grounds of appeal, I must comment on the record of appeal as compiled and placed before us. I should think that the practice is that in the compilation of the record of appeal, processes agreed at the settlement of record of appeal to be included in the record are arranged in a “first filed order”. By that I mean, in the record of appeal, processes are filed in the order in which they were filed at the trial court and dealt with. But that is not the picture in this record of appeal.
From the record of appeal the suit was first filed in the District Court, Amasaman and later transferred to the Circuit Court, Amasaman. The suit passed through the bench of three magistrates and then one other Circuit Judge before it was finally completed by Her Honour Miss Ruby Aryeetey. However, in the record of appeal, the entry of judgment followed by execution processes were placed before the adoption proceedings, and yet still before the evidence of the parties. The notice of appeal was also placed before the judgment. In short the processes as well as the exhibits were placed in any manner. I noticed also that the number of exhibits tendered in the proceedings far outnumber what is in the record as marked.
I wonder why counsel for the plaintiff/appellant should accept such a record of appeal without a complaint to the Registrar of the trial court. Parties are reminded that the record of appeal as placed before this court is the basis of our function of re-hearing. Parties especially counsel should in the discharge of their professional duty towards their clients take settlement of records seriously and also make sure that the Registrars of trial courts are also diligent in their work.
It is common knowledge that an appeal is a creature of statute. There is no right of appeal unless that right has been conferred by the Constitution or by statute. By way of statute law, the Court of Appeal Rules, 1997 (C.I. 19) as amended governs appeals in our jurisdiction.
The law did not only confer a right of appeal but also by its provisions, directed how an appeal should be filed, argued and determined by the courts. Rule 8(5) provides that the grounds of appeal shall set out concisely and under distinct heads the grounds on which the appellant intends to rely at the hearing without an argument or a narrative. In rule 8(4) it is provided that where the ground of appeal alleges misdirection or error in law, particulars of misdirection or error shall be clearly stated. And the combined effect of rules 8(8) and (9) is that although the court shall not in all cases rest its decision on a ground not set out in the notice of appeal, the appellant cannot be heard or argue a ground of appeal not stated in the notice of appeal without leave of the court.
On perusal of the grounds of appeal especially ground (a), the complaint of the appellant is basically against findings of facts made by the trial judge and the applicable law. It has to be placed on record and it is common knowledge of hallowed antiquity that the function of making findings of facts is basically that of the trial court. The findings of facts made by the trial courts are of two types – findings based on primary facts and findings made from circumstantial evidence.
A trial court makes a finding of fact based on the credibility of witnesses who give direct evidence of what they had seen, heard or perceived by other senses. On the other hand, a trial court may make findings of facts as an inference from other facts proved at the trial, especially where the witnesses give circumstantial evidence. In either case, the appellate court accords the greatest weight and respect to the findings of fact made.
The attitude of the appellate court on issues of facts found by the trial court is therefore well-settled. This distinction drawn between findings of fact based on the credibility of witnesses and an inference from other facts proved govern the attitude of the appellate court in the determination of an appeal on facts. In the former case, the finding is best made by the trial court because of the advantage it had of seeing the demeanour of the witnesses and hearing them, while in the later, the appellate court is in as good position as the trial court to make the inference. See Koglex Ltd. (No.2) vrs Field  SCGLR 175, holding 1.
For the appellate court to disagree with the view of the facts of the trial court based on the credibility of witnesses, there must exist on the record very good reasons. This is because it is not the function of the appellate court to substitute its own views of the evidence for those of the trial court. Instances where an appellate court will interfere with the findings of facts of a trial court are several and may include:
(i) Where no finding was made on a relevant or material issue.
(ii) Where there is no evidence to support the particular finding complained of.
(iii) Where the finding is perverse and not the result of the proper exercise of the judge’s judicial discretion to believe or disbelieve witnesses.
(iv) Where the issue is not drawn from accepted facts.
(v) Where there has been a misapprehension by the trial court as to what the antecedent presumption were and where the onus of proof lay – see again Koglex Ltd. (No.2) vrs Field (supra) at holding 2.
Now ground (a) of the appeal which is repeated in ground (c) is that the learned judge erred in law and in fact when she held that the plaintiff could not prove his claim in the light of the evidence on record. According to rule 8(4) of C.I. 19 which is stated above, where the ground of appeal alleged a misdirection or error of law, the particulars of misdirection or error of law must be clearly stated. But appellant failed to do so in his notice of appeal. Neither did he do so in the written submission. In Dahabieh vrs S. A. Turqui & Bros [2001/02] SCGLR 498 where ground one of appeal alleged an error of law without stating the particulars of error, the court held that the ground is inadmissible.
The same ground (a) of appeal also alleged that the trial judge also erred in fact. But in the written submission counsel failed to state the error in the fact attacked and then proceeded to spell out the correct fact which the court should have established or inferred from the facts established on the evidence. All that counsel stated in the submission is that “I respectfully disagree with her …”. Clearly counsel for the appellant failed to appreciate the import of the ground of appeal he filed and what he had to do in establishing it.
Rather, what counsel did was to argue the ground (a) of the appeal as if it is another way of saying that the judgment is against the weight of evidence. A ground of appeal alleging error of law and fact cannot be equated to a ground that the judgment is against the weight of evidence as I have demonstrated above in the case of error of law.
Indeed the ground that the judgment is against the weight of evidence is a complaint which questions the appraisal and evaluation of all the evidence and not the weight to be attached to any particular piece of evidence. Implicitly, that ground of appeal derives from the standard of proof required in a civil case which is that a party on whom the burden of proof on the pleadings lies must establish a preponderance of probability or balance of probabilities in his favour. This means that he had to persuade the court that his version of the facts is more probable than that of his opponent.
It is for this reason that I hold the view that ground (a) of the appeal is not the same as the omnibus ground that the judgment is against the weight of evidence. We will therefore dismiss ground (a) of the appeal as not only incompetent in terms of the Rules of Court but also not tenable on the evidence the plaintiff/appellant adduced in proof of his claim as demonstrated hereunder.
The principal claim of the plaintiff/appellant is declaration of title to the land described in paragraph 3 of the statement of claim coupled with an order of perpetual injunction and damages for trespass. The plaintiff/appellant will only succeed in his claim if he is able to establish the identity of the land in question satisfactorily according to law as held in Nortey (No. 2) vrs African Institute of Journalism and Communication (No. 2) [2013/14] 1 SCGLR 703, the onus of proof required by law as regards the identity of the land would be discharged by meeting the conditions clearly stated in Tetteh vrs Hayford  SCGLR 17 citing the case of Kwabena vrs Atuahene  GLR 136 thus: (i) plaintiff has to establish positively the identity of the land to which he claimed title subject-matter of the suit; (ii) plaintiff has to establish all his boundaries; (iii) where there is no properly oriented plan drawn to scale, which made compass bearings vague and uncertain, the court would hold that the plaintiff had not discharged the onus of proof of his title.
The plaintiff/appellant stated in paragraph 3 of the statement of claim that his land is 0.18 acre or 0.07 hectare measuring 74’ by 99.4’ by 83.3’ by 98.4’. In his evidence-in-chief, the appellant stated almost the same measurements. That description of the land agrees with the lease granted the plaintiff/appellant in 2003 and was to be used for commercial purpose only (see page 40 of the record of appeal).
This document was withdrawn by counsel for the plaintiff/appellant. But counsel for the defendant/respondent caused it to be tendered as Exhibit 1 through PW1 but it was not marked. Under cross-examination, PW1 agreed that it was the document given to the plaintiff/appellant by the family on that plot on which he has the pure water factory.
At page 118 of the record of appeal is the indenture executed in 2010 in favour of plaintiff/appellant. Plaintiff/appellant tendered it as Exhibit B in support of the plot of land he claimed as described in paragraph 3 of the statement of claim. It was wrongly marked as Exhibit 1. The size of this plot is 0.21 acre or 0.09 hectare measuring 100.6’ by 86.2’ by 99.4’. The plot was leased for residential purpose only.
Habib Ashiley testified for the plaintiff/appellant as PW1. At the trial at page 154 he did not corroborate the evidence of plaintiff/appellant based on this Exhibit B when it was shown to him. This is what he said:
“Exhibit “B” indenture, site plan but Exhibit “B” that I have here is not what I issued. The indenture I gave was dated 2003 but Exhibit “B” is dated 2010. I can produce a copy of the one I gave to him …. I know the land I gave to the plaintiff 99 by 74; 98 by 83. The plaintiff shared boundary with the defendant at the back of his plot”.
It is recalled that PW1 is the co-grantor of the plaintiff/appellant just as the defendant/respondent. The acreage of the land in Exhibit “B” (marked as Exhibit 1) is bigger than the acreage of the land pleaded in paragraph 3 in the statement of claim. The evidence of PW1 thus agrees with the plot of land pleaded in the statement of claim which is evidenced in the 2003 indenture but not relied on by the plaintiff/appellant’s counsel and had to be tendered through PW1 by defendant/respondent’s counsel.
Despite this evidence which PW1 gave on 1st June 2015, at the resumed sitting on 18th June 2015, still in examination-in-chief PW1 stated at page 155 that Exhibit B was the document he and his grandmother executed in favour of the plaintiff/appellant. He gave no explanation for his earlier denial. He also told the court that plaintiff/appellant acquired the disputed plot first and before the one on which his pure water factory is but both were acquired in the same 2003. But then, there is no evidence apart from Exhibit B which he has discredited by his own evidence to support his evidence assertion that plaintiff/appellant acquired two separate plots in 2003.
It is also recalled that PW1 denied his signature on Exhibit 2, the receipt evidencing the total payment of ¢410,000.00 defendant/respondent made. The signature he said looks like his. He signed that receipt with his grandmother just as he signed the ¢150,000.00 receipt with his own mother, Zinabu. But he alone signed plaintiff/appellant’s receipt Exhibit “A”. So if in all cases, PW1 signed documents with his mother and/or grandmother, except plaintiff/appellant’s receipt, is counsel for the defendant/respondent not right to suggest to him that he alone sold the disputed plot to plaintiff/appellant already leased to the defendant/respondent because according to PW1 for the past 20 years he had not seen the defendant/respondent?
The overwhelming evidence admitted by plaintiff/appellant and his witnesses is that the disputed plot lies in front of defendant/respondent’s plot on which he is constructing a hotel. The evidence of defendant/respondent on the acquisition is unshaken. His evidence is that he bought his plot in two lots. The first lot is evidenced in Exhibit 6, at page 212 of the record of appeal measured 100’ by 70 at ¢300,000.00. The second lot measuring 35’ by 100’ was purchased at ¢110,000.00. That is why the dimensions of the plot in Exhibit 4 with the site plan changed to 110ft by 100ft. He similarly tendered a receipt of ¢410,000.00 which took account of the two payments: i.e. ¢300,000.00 and the ¢110,000.00.
The issue was raised by the plaintiff/appellant about the alterations in the dimensions of the plot in Exhibit 4. I note that despite the alterations, the counsel for the plaintiff/appellant raised no objection when it was sought to be tendered. The court considered the issue and was satisfied with the explanation of defendant/respondent that the vendors of the land gave him the document in that state. Taking all the circumstances into consideration we are satisfied that the trial judge’s satisfaction with the explanation about the alterations in Exhibit 4 is well-founded and we have no basis to disturb it.
PW1 is no doubt a material witness in this matter. The picture he painted of himself by the evidence he gave did not acquit him as a reliable and honest witness. If his evidence contradicts or is unreliable as regards the size and the location of the plaintiff/appellant’s plot, no court of law properly instructing itself on the burden and standard of proof in a claim of title to land, would hold that the trial judge erred in law and in fact in dismissing the claim of the plaintiff/appellant. It is also not clear from the plaintiff/appellant’s claim whether he wants to recover three (3) feet of the land which he said defendant/respondent encroached upon (see page 145 of the record of appeal). It is for these reasons that we dismiss ground (a) of the appeal.
In my view, ground (a) of the appeal is substantial as it goes to the root of the appeal. Having dismissed it, the remaining grounds of appeal only merit comments. Ground (c) of the appeal refers to the evidence of the defendant/respondent that he fenced three sides of the land and left western side, since that would take a modern type of construction because it will face a road. The ground of appeal as it is couched did not reflect correctly what the defendant/respondent said let alone the finding of the trial judge on the issue.
In any case, this issue about the fence wall does not appear to be raised in good faith by the plaintiff/appellant. This is because his own evidence is that when he was taken to the plot he bought, he saw a fence wall without a gate. If by the evidence on record the disputed land is behind plaintiff/respondent’s land, what interest has he if the forth side of the land is left to be fenced later.
The challenge to the issue I find is belated because when the defendant/respondent gave that evidence he was not challenged under cross-examination. I also note that, counsel for the plaintiff/appellant in order to make a case introduced the issue of the non-existence of the new Accra-Nsawam road in his submission. But nowhere at the trial was it put to the defendant/respondent that his evidence was false because the new road was not then constructed. The defendant/respondent only mentioned “road” and no further. The ground is dismissed.
Ground (d) relates to the holding of the trial judge that the vendor of the parties having divested herself of the disputed land by first leasing it to the defendant cannot lease same to the plaintiff. In his submission counsel for the plaintiff/appellant denied that the plot was earlier sold to the defendant/respondent. The submission is contrary to the plaintiff/appellant’s own evidence accepted by the trial judge that he met defendant/respondent on the portion of the land where the disputed plot lies.
In any case, the dictum of the trial judge on double sale of the same piece of land by the same vendor is trite law. In Brown vrs Quarshigah [2003/04] SCGLR 930, the dictum of Prof. Kludze JSC espoused the law with sufficient clarity. In Moasa Co. vrs Saara [1999/2000] 1 GLR 538, this court stated the law that a grantor should not derogate from his grant as follows:
“The law is that a grantor should not derogate from his grant. Accordingly, since the Odorkor stool had earlier granted the land in dispute to the defendant, it had no right to regrant that land to the plaintiff or to any other person, since the defendant had not breached a condition of the grant that could have led to steps being taken by the stool to re-enter”.
The ground of the appeal will be dismissed and it is dismissed because the court has found that the plot of land sold/leased to defendant/respondent is the same plot the plaintiff/appellant is claiming in this action through the same vendor.
Ground (g) of the appeal is indeed uncalled for. The plaintiff/appellant says he has three boreholes and cesspit tank on a portion of the land. Defendant/respondent it is not denied, also has a wooden structure in which he stores his building materials on the same land. I recall the plaintiff/appellant’s evidence that the defendant/respondent has encroached on his land by 3 feet. This 3 feet of the plot he has failed to delineate in his pleading and evidence. Rather, he endorsed his writ with a claim for a larger piece of land. So if it is not the same piece of land he is claiming from the defendant/respondent, why did he sue the defendant/respondent after unsuccessful attempts at the police station and Amasaman Municipal Assembly to resolve the issue of ownership of the plot? This ground of appeal is uncalled for and so has no merit. It is dismissed.
I noticed from the written submission of the plaintiff/appellant that counsel made submission on convenants on the user of the plot leased to the appellant in paragraph 31; the proof of the year of death of Hawa Botchway as regards the execution of Exhibit “B” in 2010 in paragraph 33; the non-compliance with the order for forensic examination of documents by the plaintiff/appellant in paragraph 41 and the date on the indenture, Exhibit B in paragraph 50 amongst others. Unless an issue is made a ground of appeal in the notice of appeal, it is the rule that an appellant is not permitted to challenge them in his written submission. This is because an issue not complained against in the notice of appeal is deemed admitted. We have therefore not countenanced all those submissions in this judgment.
In conclusion, we uphold the findings of fact made by the trial judge in her judgment. We agree with her conclusion that the plaintiff/appellant has failed to prove his claim on the preponderance of probabilities. The appeal is therefore dismissed.