YEBOAH RICHARD vs. OPANIN YAW MANU & OPANIN KOFI BOADI OF JANKUFA
  • IN THE SUPERIOR COURT OF JUDICATURE
    IN THE COURT OF APPEAL
    KUMASI - A.D 2017
YEBOAH RICHARD - (Plaintiff/Respondent/Appellant)
OPANIN YAW MANU AND OPANIN KOFI BOADI OF JANKUFA - (Defendants/Appellants/Respondents)

DATE:  23RD MAY, 2017
SUIT NO:  H1/46/2015
JUDGES:  E. K. AYEBI J.A. (PRESIDING), G. TORKORNOO (MRS) J.A., A. M. DOMAKYAAREH (MRS.) J.A.
LAWYERS:  DR. FRANCES DUFIE AZUMAH FOR THE PLAINTIFF/RESPONDENT/ APPELLANT
MERCY LARBI FOR THE DEFENDANTS/APPELLANTS/RESPONDENTS.
JUDGMENT

DOMAKYAAREH (MRS.), J.A

1. This is an appeal against the judgment of the High Court, Wenchi dated 8th July, 2014.

The plaintiff/respondent/appellant (hereinafter referred to as the appellant) on his behalf and that of his brothers and sisters sued the defendants/ appellants/ respondents (hereinafter referred to as the respondents) at the District Court at Drobo for the following reliefs:

a) Declaration of title to and recovery of possession of all that piece or parcel of land lying and situate at a place commonly called ABENA DUKUU BEPOSO which said land is the bonafide property of the plaintiff and share common boundaries with the properties of 1. Koo Korang 2. Yaw Amoah 3. Kwame Owusu 4. Kofi Asiri 5. Ansah Yaw and a motor road but the defendants have trespassed onto the said land without the consent and authority of the appellant, and

b) General damages for trespass.

 

2. The appellant averred in the Statement of Claim that the land in dispute was acquired in its virgin state by his grandfather Opanin Kwabena Ofori and his sister Abena Dukuu who cultivated cocoa on it for over hundred years and the latter inherited the land upon the demise of the former. The appellant’s father inherited and took possession of the land upon the demise of Abena Dukuu as the son. The appellant also inherited the land and cultivated the land for a period of eleven years without any interference until the respondents destroyed his maize and left a message that he should come and see them in the year 2010. The appellant therefore sued the respondents claiming the reliefs as endorsed on the Writ of Summons.

 

3. The respondents in their Statement of Defence denied the appellant’s averments in his Statement of Claim and stated that the land was acquired by their great-grandfathers who gave the land in dispute to the ancestors of the appellant on certain conditions, namely:

a. None of the settlers has any claim of inheritance on the land no matter the length of period they would stay or remain on the land on which they farmed or occupied;

b. All palm trees on the land were for the stool and that no palm wine should be tapped without permission from Nana Gyankufahene and his elders;

c. Their children’s children could as well make living on the land provided they conform to the above conditions, and

d. When they leave the area, they have no claim on the land to sell any part or give to ‘abunu’ or ‘abusa’ to any person to farm on the land for the ‘abunu’ system of farming.

 

The respondents averred that the appellant breached the conditions when he gave a portion of the land to Nana Acheampong to farm the land on the abunu system of farming. The respondents admitted that they went to the land to put a sign post there which is a traditional way of indicating that the land owner has come to the land.

 

4. The District Court Magistrate held that on the balance of probabilities, he found the existence of the appellant’s case more probable than that of the respondents when measured against each other and he consequently entered judgment in favour of the appellant in respect of the area being claimed and as shown during the locus in quo. The trial magistrate awarded costs of one thousand five hundred Ghana Cedis (GH1500.00) in favour of the appellant against the respondents and additional damages of Two Thousand Ghana Cedis (GH2000.00) for the trespass committed by the respondents who were working on the land.

 

5. The respondents being aggrieved by the judgment appealed to the High Court, Wenchi against the decision of the trial magistrate on the following grounds:

a) the judgment of the court was against the weight of evidence on record

b) the Honourable Court failed to take into consideration the observation it made during its visit to the locus

c) that the cost awarded the appellant was excessive, and

d) that additional grounds of appeal shall be filed upon the receipt of the record of proceedings.

 

6. The High Court judge found that the totality of the evidence showed that the plaintiff did not know the boundaries of the land claimed in court. It was further held that the declaration of title in the plaintiff without the evidence meeting the standard of proof required by law rendered the judgment a miscarriage of justice hence the judgment was set aside. This meant that there was no basis for the award of costs and general damages against the defendants and both were consequently also set aside.

 

7. The appellant herein being aggrieved and dissatisfied by the judgment of the Learned High Court judge appealed against the judgment on the sole ground that the judgment is against the weight of evidence adduced. The Notice of Appeal indicated that additional grounds will be filed on receipt of the record of proceedings but no such additional grounds have been filed. The relief the appellant is seeking in this appeal is to have the judgment delivered by the His Lordship Mr. Justice S.K Sarpong Appiah at the High Court at Wenchi on Tuesday, the 8th day of July 2014 reversed by the Court of Appeal.

 

8. The case law has through several authorities, provided the procedure to be followed by the court in tackling the omnibus ground of appeal that the judgment is against the weight of evidence. This is seen in the case of ABBEY & 2 OTHERS V. ANTWI V [2010] SCGLR 17 at page 34 per Dotse JSC who held as follows:

“It is now trite learning that where the appellant alleges that the judgment is against the weight of evidence, the appellate court is under an obligation to go through the entire record to satisfy itself that a party’s case was more probable than not.”

 

This same directive was also stated in the earlier Supreme Court case of TUAKWA V BOSOM [2001-2002] SCGLR 61 per Sophia Akuffo, J.S.C. as follows: -

“…an appeal is by way of a rehearing, particularly where the appellant alleges in his notice of appeal that the decision of the trial court is against the weight of the evidence. In such a case, although it is not the function of the appellate court to evaluate the veracity or otherwise of any witness, it is incumbent upon an appellate court, in a civil case, to analyse the entire record of appeal, take into account the testimonies and all documentary evidence adduced at the trial before it arrives at its decision, so as to satisfy itself that, on a preponderance of the probabilities, the conclusions of the trial judge are reasonably or amply supported by the evidence.”

 

It is also settled that no legal arguments are allowed or permitted when one relies on the omnibus ground that the judgment is against the weight of evidence adduced at the trial. See the case of

BROWN VRS. QUASHIGAH [2003 – 2004] SCGLR 930.

 

9. Since this matter involves declaration of title to land, certain fundamental issues must be determined at the trial. In the instant case the matters to be determined are: -

a) Whether or not the plaintiff/appellant sufficiently proved ownership of the land.

b) Whether or not the traditional evidence was enough to establish the claim of title to the land.

c) Whether or not the plaintiff / appellant had capacity to institute the action.

 

We shall now analyse and evaluate the evidence on record and come to our conclusion as to how these issues fared.

 

10. Counsel for the appellant by his Written Submission contended that having regard to the evidence on record, prima facie, the fact that the existence of a usufructuary interest vested in the appellant in the disputed land is more probable than its non-existence. This stems from the testimony of the appellant that he inherited the land from his grandparents and the said grandparents acquired the land as a virgin land, settled on it and planted cocoa on it till the cocoa withered. Also his ancestors and descendants including himself and his siblings have been in possession of the land for over one hundred years without any interference up until the respondents’ act of trespass disrupting his occupation of the land and that of his tenant. This testimony was corroborated by the plaintiff’s witnesses during the examination in chief and cross- examination.

 

Counsel for the appellant argued that the respondents admitted in evidence that the land in dispute was a virgin forest when it was acquired by the appellant’s ancestors though the respondents testified that the disputed property was rather a stool land on which the appellant’s ancestors settled and was granted to them subject to conditions. Counsel for the appellant submitted that the Jankufa stool was not a party to the suit and neither was there any indication that the respondents were acting for and for on behalf of the said stool. Also upon the respondents’ own testimony that despite the felling of palm trees by the appellant’s ancestors the appellant continued to enjoy actual possession till the date of trespass though the action amounted to a breach of the alleged conditions.

 

Counsel for the appellant in evaluating the traditional evidence led by both parties in proof of their respective claim to the disputed land submitted that the traditional evidence of the appellant is supported by recent acts of possession such as planting cash crops like cocoa, distilling ‘akpeteshie’ from palm trees and general undisturbed possession of the disputed land. Also Exhibit 1 which was a judgment of the native court of Suma Kwatwema held at Sampa on Wednesday, 21st day of May 1952 did not show that the disputed land was one on which the palm trees were felled and neither did the native court make any order as to whom title to the disputed land was vested nor did the order indicate that the fine to be paid was as a result of a breach of any condition that run with the grant of the disputed land.

 

Counsel for the appellant further argued on the admissibility of Exhibit 1 that the import of section 130 of the Evidence Act ,1975 is that for a writing to be admissible in support of traditional evidence adduced by a party ,the writing is inadmissible unless it is relevant to the matter in dispute ,or to an issue as to an interest in the property and the dealings with the property since the writing is not inconsistent with the truth of the writing .Counsel for the appellant submitted that Exhibit 1 was a judgment of the Native Court of Suma Kwatwema in favour of the Nifahene of Suma in respect of palm trees on a palm farm which Odikro Kofi Yeboah had wrongly felled. Exhibit 1 did not indicate that the said palm farm was the land in dispute since it was cocoa that has been cultivated on the land and it did not declare title to that said palm farm in the Jankufa Stool nor indicate that there were any conditions attached to the land in dispute to which the ancestors of the appellant were subject to. Moreover, the learned High Court judge erred when he relied on Exhibit 1 which was legally inadmissible.

 

11. Counsel for the respondents in his Written Submission contended that from the testimony of the appellant during cross-examination it was proven that the land in dispute is a family property of the late Kwabena Ofori of which according to Akan custom, the appellant is not part. However, the appellant claimed the land as a personal property for himself and on behalf of his brothers and sisters and not that he was suing to protect family property. Hence the High Court judge was right to have held that, he lacked capacity to have instituted the present action without any authority from the head of his father’s maternal family or an appointed customary successor of his father’s maternal family.

 

Counsel for the respondents argued that the appellant in his evidence did not prove how the grandparents acquired the land and from which stool they acquired the land. He further argued that the trial judge breached the rules of natural justice by ignoring the right of those persons actually working on the land and who claimed the land as their father’s. Counsel for the respondents submitted that the totality of the evidence showed that the appellant did not know the boundaries of the land claimed. Also the judgment of the trial magistrate showed that he himself did not know the exact boundaries of the land he gave judgment for the appellant; hence his judgment for him to recover possession of land as shown during the locus in quo was wrong.

 

Whether or not the plaintiff/appellant sufficiently proved ownership of the land.

12. The Supreme Court in ACKAH V. PERGAH TRANSPORT LIMITED & OTHERS [2010] SCGLR 728 at page 736 per Adinyira JSC

“It is the duty of an appellate court to ascertain from the record of appeal whether the party who bears the burden of proof has properly discharged that burden. It is a basic principle of the law on evidence that a party who bears the burden of proof is to produce the required evidence of the facts in issue that has the quality of credibility short of which his claim may fail. The method of producing evidence is varied and it includes the testimonies of the party and material witnesses, admissible hearsay, documentary and things (often described as real evidence), without which the party might not succeed to establish the requisite degree of credibility concerning a fact in the mind of the court or tribunal of fact such as a jury. It is trite law that matters that are capable of proof must be proved by producing sufficient evidence so that on all the evidence a reasonable mind could conclude that the existence of the fact is more reasonable than its non-existence. This is a requirement of the law on evidence under sections 10 and 11 of the Evidence Decree.”

 

13. For a party to prove ownership or title to land there are certain fundamental requirements which must be proven conclusively-these include: the root of title; method of acquisition; description, location, dimension, boundary features and boundary owners of the land and the stool land on which the land is located. This has been held in a number of cases.

 

In YAA KWESI V. ARHIN DAVIS &ANOR [16/3/2005] CA NO. J4/10/2004 it was held that “it is trite law that this suit being essentially for a declaration of title the plaintiff was bound to establish his root of title”.

 

It was also held in AKOTO II VRS. KAVEGE [1984 -86] 2 GLR 365 failure to prove even only one side of boundaries can be fatal, notwithstanding whether or not the defendant counterclaimed.

 

14. In the instant case, the appellant averred in the Statement of Claim that the land in question was situated at a place called ‘Abena Dukuu Beposo’ and it shared common boundaries with Koo Korang, Yaw Amoah, Kwame Owusu, Kofi Asiri, Ansah Yaw and a motor road. The appellant also stated that the land was acquired in its virgin state by his grandfather Opanin Kwabena Ofori and his sister Abena Dukuu who cultivated cocoa on it for over a hundred years and the latter inherited the land on the demise of the former. The appellant’s father also inherited the land as the biological son of Abena Dukuu and the appellant also inherited the land upon the demise of his father till date. This was repeated by the appellant in his examination in chief.

 

15.The respondents admitted that the land was a virgin forest when it was acquired by the appellant’s ancestors. However, the respondents maintained that the land was acquired by their great-grandfathers and that the land was given to the ancestors of the appellants on certain conditions which have been itemized earlier on in this judgment.

 

The learned authors, B.J Da Rocha and CHK Lodoh in their book, Ghana Land Law  and Conveyancing, 2nd Edition at pages 86-87 wrote about the customary law licence which may be for either farming or building. “In customary law a licence is a gratuitous tenancy whereby the tenant is permitted to use the landlord’s land free of charge. The customary law is that a stranger licensee continues his possession of the land and the enjoyment of the particular grant to him so long as he continues to recognize the title of the grantor. A licensee is not entitled to economic trees and crops on the land before his grant; however, a licensee may harvest crops from economic trees planted by him after the grant of the licence if he had a prior authorization of the licensor and the allodial title holder before planting such economic trees. As a general rule of customary law, boundary trees are not planted when a farming licence is granted so as to show that the title of the licensor has not been transferred to the licensee”. At page 82, the learned authors stated thus; “…the customary licence creates an interest in the land in which it is granted and this interest is alienable by the licensee subject to the consent of the licensor”. This position is supported by the case of ATTAH V. ESSON [1976] 1 GLR 128

 

The customary law freehold is an interest in land which a member of a community, which holds the allodial title to land acquires in a vacant virgin communal land by either farming it or building on it as stated at pages 13-14 of the Ghana Land Law and Conveyancing, 2nd Edition cited supra. A stranger can acquire a freehold interest only by grant from the community owning the allodial title. A stranger may acquire the status of a member of the community and thus qualify to acquire the customary freehold as seen in the case of ADJEI V. GRUMAH [1982-83] GLR 985

 

16. It is thus important to determine the nature of interest that the appellant’s ancestor’s had in the land. From the Record of Appeal, the case of the appellant is that the ancestors had usufructuary interest in the land. The respondents case is that, the appellant’s ancestors were strangers in the land who were given the land based on a customary licence particularly a farming licence. The deciding factor of these opposing arguments and claim is whether or not the appellant’s ancestors were members of the community or strangers?

 

The Supreme Court in the case of GLIGAH & ATISO V. THE REPUBLIC [2010] SCGLR 870 held that it is the quality of the witnesses called and whether they have succeeded in proving the ingredients required in a particular case to the required standard that is important and not the quantity of the witnesses.

 

What this decision teaches us is that a party to a suit needs to call material witnesses in a matter in order to establish his/her claim. A material witness, therefore, is an indispensable witness without which a party’s claim fails. In other words, a material witness is someone who has adequate or sufficient information on the matter which would cause the court to tilt to one side.

 

17. The trial Magistrate realizing the need to call a court witness per Section 68 of the Evidence Act 1975 (NRCD 323) to resolve the matters which were not clear in the mind of the court called Kwame Koran of Yaa Mansah. This court witness reiterated the standpoint of the respondents. The appellant failed to call material witnesses to testify in the matter to establish their title to the land in dispute. The first material witness which the appellant failed to call was Nana Acheampong, who was the tenant that the appellant gave a portion of the land in dispute to for farming purposes specifically the ‘abusa’ system of farming which led to the act of alleged trespass by the respondents. The said tenant would have been essential to determine the nature of agreement that he had with the appellant to determine whether it amounted to a breach of the conditions as stated by the respondents. and the nature of interaction that he had with the respondents. Also the appellant failed to call the Nana Gyankufahene to ascertain the ownership of the said land in dispute because from the conditions claimed by the respondents which was given by their ancestors to the appellant’s ancestors Nana Gyankufahene is the allodial owner of the area within which the land in dispute is found.

 

From the above, it can be seen that the appellant failed to show clear title to the land is dispute and the respondents’ claim of title to the land is more probable than that of the appellant since the root of their title of the land has been corroborated and affirmed by both the respondents’ witness and the court witness. As held in the case of ODOI V. HAMMOND [1971] 1 GLR 375 at page 381 per Azu Crabbe J.A.

“It is now common learning in this country that in an action for a declaration of title to land the onus is heavily on the plaintiff to prove his case, and he cannot rely on the weakness of the defendant’s case. He must indeed “show clear title”.

 

Whether or not the traditional evidence was enough to establish the claim of title to the land.

18. Traditional evidence on boundaries and community history is admissible per Section 129 of the Evidence Act 1975 (NRCD 323) though it is hearsay and thus an exception to the hearsay rule per Section 117 of the Evidence Act.

 

The Supreme Court in ADJEI V. ACQUAH AND OTHERS [1991] 1 GLR 13 in affirming the test in measuring the probability of traditional evidence held as follows:

“…the law was that although traditional evidence had a part to play in actions for declaration of title, a favourable finding on its evidence was not necessarily essential to the case of the party seeking the declaration. What the authorities required was that traditional evidence had to be weighed along with recent facts to see which of the two rival stories appeared more probable. Facts established by matters and events within living memory, especially evidence of acts of exercise of ownership and possession must take precedence over mere traditional evidence. Accordingly, since the traditional evidence relied upon by both parties was inconclusive but the plaintiff satisfactorily proved long occupation and the exercise of rights over the land in dispute, the Court of Appeal erred in reversing the declaration of title made in the plaintiff’s favour by the High Court solely on the ground that the plaintiff’s family failed to prove its traditional story.”

 

19. In the instant case, both parties proffered traditional evidence to prove their title to the land. The appellant in the Written Submission submitted that their traditional evidence is supported by recent acts such as planting cash crops like cocoa, distilling ‘akpeteshie’ from palm trees and general undisturbed possession of the disputed land. These acts indeed showed possession, however, as already stated above the ancestors of the appellant from the traditional evidence did not show the status by which the virgin land was acquired; therefore, the traditional evidence of the appellant did not meet the standard required to establish the root of their title.

 

20. Despite the fact that a party’s traditional evidence is rejected there is another means by which a party can prove title or ownership and that is the determination and proof of boundaries to the land in dispute. This is illustrated in the case of ADWUBENG V. DOMFEH [1997-98] 1 GLR 282 where the court held at holding 4 as follows:

“Although each party denied that the other’s ancestor was the first to settle at Duasi, neither denied the ancestry of the other. In the circumstances, the resolution of the traditional evidence did not depend on the acceptance or rejection of the entire history of a party as done by the trial judge, but on the determination of which of the ancestors was first to settle at Duasi. In such a situation where it was difficult to make such a finding, the recommended approach was to have recourse to facts in recent years as established by the evidence. Thus a party could still succeed in an action for declaration of title even if his traditional evidence was rejected. In the instant case, not only did the boundary owners testify in support of the boundary the plaintiff identified, but they further testified to the plaintiff’s ownership of the disputed land. However, the defendant called no boundary owner nor any witness to testify to his alleged ownership of the land in dispute. Accordingly, the plaintiff was entitled to judgment”.

 

 

21. In the instant case, the appellant during the trial called some boundary owners and witnesses who described the land. However, the complete boundaries of the land as stated in the Statement of Claim was not proven in evidence. Moreover, some of the descriptions given by the appellant’s witnesses were contradictory. In the Statement of Claim, the appellant averred that the land in dispute was at a place commonly known as ABENA DUKUU BEPOSO. PW1 said the land was at “cocoamu” near Nkokotoa. PW2 said the land was at Kwadwo Korankrom (i.e. between Tekese, Nkokotoa and Boadwo). Only PW3 said the land was at Abena Duku Bepowso while PW4 said the land was at ”Akyeremuaakyi”. Furthermore, when the appellant was given the opportunity to show the boundaries of the land during the inspection of the locus in quo he could not show all the boundaries. The question therefore is if indeed the appellant had title to the land, what is the exact expanse or demarcation of land to which the court would grant a declaration of title? The evidence shows that the appellant could not prove on the balance of probabilities the exact size of the land in dispute nor its exact location. The court cannot and does not give judgment in vacuum. On the authority of AKOTO II VRS. KAVEGE cited supra The District court erred in granting a declaration of title to the appellant.

 

Whether or not the plaintiff / appellant had capacity to institute the action.

22. The capacity to institute a suit is fundamental and goes to the root of an action whether civil or criminal. This is illustrated in the case of REPUBLIC V HIGH COURT, ACCRA; EX PARTE ARYEETEY [2003-2005] 1 GLR 537 at pages 544 –545 where the Supreme Court per Kpegah JSC held as follows:

“The requirement that a party indorses on the Writ the capacity in which he sues, is to ensure that a person suing in a representative capacity is actually invested with that capacity and therefore has the legal right to sue. This includes the submission that the requirement also enables a defendant, if he is so minded, to challenge the capacity the plaintiff claims he has, and such a challenge may be taken as a preliminary issue.

 

This is because if a party brings an action in a capacity he does not have, the writ is a nullity and so are the proceedings and judgment founded on it. Any challenge to capacity therefore puts the validity of the writ in issue…. whether a person who sued in a representative capacity indeed has the capacity he claims to have or not, is a question of fact and if challenged, he must prove same to avoid his suit being dismissed since it is analogous, in our view, to taking an action against a non-existent defendant. But if the representative capacity he claims is not challenged, naturally a plaintiff assumes no such burden.”

 

23. In the instant matter, on the face of the suit, the appellant stated that he was suing on his own behalf and that of his brothers and sisters, however there is nothing in the record of appeal to signify that he had the consent and authority of the siblings to act in their stead. Moreover, since the property from the evidence adduced by the appellant is a family property the appropriate person to institute the action was the family head unless the ‘special circumstances’ enumerated in the case of KWAN V. NYIENI & ANOR [1959] GLR 67 at pages 72-73 have been met. In the said case, as one of the exceptions to the rule in KWAN V. NYIENI, Van Lare Ag. CJ held that upon proof of necessity, provided that the Court is satisfied that the action is instituted in order to preserve the family character of the property any member of the family may sue. In the instant case, the appellant is found not to have instituted the action to preserve the family character of the property but rather to protect the personal interest in the said property and this is seen clearly in the Statement of Claim especially in relief a) where the land was described as “the bonafide property of the plaintiff”. This means that the appellant saw the property in question as a personal property. In any event, by Akan custom, the appellant is not a member of his father’s family.

 

The learned High Court judge was therefore right in holding that the plaintiff did not have capacity to sue in the present action. The District Magistrate entirely missed this fundamental point of capacity.

 

A determination of the three issues just concluded is enough to dispose of this appeal but since the appellant also sought the relief of damages for trespass and was actually awarded GH2,000.00 in that regard by the District Court, we shall comment on same.

 

24. Trespass is an action against possessory interest and not ownership. This is illustrated in the dictum of Ollennu J in SERAPHIM V. AMUA-SEKYI [1962] 1 GLR 328 at page 331 where he held as follows:

“A person in possession can successfully maintain an action for trespass against the whole world except the person proved to be the true owner. But possession means effective possession; a person who enters upon land which is apparently already in the possession of another person, cannot in law be said to have that possession which will entitle him to the benefit of the proposition of law. Therefore, where the possession relied upon has not been effective or where it is one which has been disputed, a plaintiff to succeed in an action for trespass against another person who also claims to be in possession cannot succeed unless he proves that as between him and that other person, the right to immediate possession of the land is vested in him”.

 

25. From the above statement on trespass, it can be seen that if the appellant had instituted the action simply on the tort of trespass to land, the action would have succeeded since from all the evidence adduced and corroborated by the respondents themselves and the other witnesses, it was established that the appellant had possession of the land. However, since the claim for damages for trespass was predicated on a relief of a declaration of title to the land, the latter takes precedence over the relief of general damages for trespass; hence once the appellant failed to prove ownership and title to the land the action for trespass automatically fails as well.

 

26. Three other matters raised in this appeal deserve analysis and comment before we conclude this judgment. These are: -

·         Whether or not Exhibit 1 was admissible in evidence;

·         Whether or not the Jankufa stool ought to have been joined as a party to the suit by the respondents since they did not indicate that they were acting for and for on behalf of the said stool; and

·         The contention by the appellant that the respondents testified that the felling of palm trees by the appellant’s ancestors amounted to a breach of the alleged conditions but the appellant continued to enjoy actual possession till the date of trespass.

 

EXHIBIT 1.

27. This Exhibit is a judgment of the Native Court of Suma Kwatwema held at Sampa on Wednesday, 21st May, 1952. The main question to consider is what Exhibit 1 contributed to the weight of evidence adduced at the trial. Section 51 of the Evidence Act, 1975 (NRCD 323) governs the admissibility of evidence and the cardinal consideration is that the evidence must be relevant to be admissible. The section is set out in below.

“51. Relevant evidence admissible

(1) …

(2) Relevant evidence is admissible except as otherwise provided by an enactment.

(3) Evidence is not admissible except relevant evidence.”

 

The court in DPP V. KILBOURNE [1973] AC 729 at page 736 established what was meant by relevant evidence. Lord Simon held that ‘evidence is relevant if it is logical, probative or disprobative or evidence which makes the matter which requires proof more or less probable’.

 

Exhibit 1 was tendered in evidence to corroborate the testimony of the respondent and their witness that the said land was given to the ancestors of the appellant by the Jankufa stool on conditions and that Kofi Yeboah an ancestor of the appellant once inherited said land and was fined by the native court of Suma Kwatwema for wrongfully felling the palm trees on the palm farm of the Nifahene of Suma. The testimony to be corroborated by Exhibit 1 was hearsay evidence.

 

Hearsay evidence as a rule is not admissible unless it is provided for by statute or by the agreement of parties. This is provided in section 117 of the Evidence Act as follows:

 

“117. Hearsay not admissible

Hearsay evidence is not admissible except as otherwise provided by this Act or any other enactment or by the agreement of the parties.”

 

The order of the native court of Suma Kwatwema is an ancient writing affecting an interest in land which is based on hearsay evidence. Section 130 of the Evidence Act sets out the parameters for the admissibility of hearsay evidence contained in deeds or ancient writings. Section 130 of the Evidence Act provides as follows:

 

“130. Deeds and ancient writings

(1) Evidence of a hearsay statement contained in a deed of conveyance or a will or any other writing purporting to affect an interest in movable or immovable property is not made inadmissible by section 117 if

(a) the matter stated was relevant to the purpose of the writing;

(b) the matter stated would be relevant to an issue as to an interest in the property; and

(c) the dealings with the property since the statement was made have not been inconsistent with the truth of the statement.

2) Evidence of a hearsay statement is not made inadmissible by section 117 if the statement is contained in a writing more than 20 years old and the statement has since been acted upon as true by persons having an interest in the matter.”

 

28. From a careful reading and examination of the Exhibit 1, it is seen that reference is made to a palm farm belonging to Nifahene of Suma upon which Kofi Yeboah an ancestor of the appellant was fined for the wrongful felling the palm trees on the said palm farm. There is a great difficulty in reconciling a palm farm and a cocoa farm as referring to the same land in contention in the instant suit. This is because the respondents and their witness corroborated the testimony of the appellant and his witnesses that the ancestors of the appellant cultivated cocoa on the land for more than a hundred years.

 

Exhibit 1 was therefore not relevant to the subject matter of this dispute and should therefore not have been admitted in evidence. Even if it was admitted in evidence without objection as was the case, it should not be relied upon in giving judgment since it had no weight in deciding the issue of ownership and proof of title as sought to be established by the respondents. In TORMEKPEY VRS. AHIABLE [1975] 2 GLR 432 the court of Appeal held per Holding 1 thatif inadmissible evidence has been received (whether with or without objection) it is the duty of the judge to reject it when giving judgment; if he had not done so, it will be rejected on appeal as it is the duty of the courts to arrive at their decisions upon legal evidence only.”

 

JANKUFA STOOL AS A PARTY TO THE SUIT.

29. It was the appellant who sued the respondents. The respondents did not volunteer themselves for the litigation. When the respondents pleaded that the land in dispute was Jankufa Stool land, nothing prevented the appellant from applying to the court to join the stool as a defendant. The argument raised by the appellant that the respondents ought to join the Jankufa stool or show that they have the requisite capacity to represent the stool shows that the appellant is trying to rely on the weakness of the respondents’ case. On the authority of ODOI V. HAMMOND cited supra, he is not allowed to do so. He can only succeed on the strength of his own case by showing clear title and not on the weakness of his opponent’s case.

 

APPELLANT REMAINING IN UNDISTURBED POSSESSION DESPITE THE BREACH OF THE CONDITIONS BY HIS ANCESTOR IN FELLING PALM TREES BEYOND THE NUMBER ALLOWED.

 

We have already held the Exhibit 1 which is the basis for this contention does not show clearly on the face of it or at all that the land on which the palm trees were felled is the same las the land in dispute in this matter which was a cocoa farm. Neither did Exhibit1 vest title in that palm farm in the Jankufa stool. Therefore, this contention has no relevance to the case at hand. Even if the palm farm was the same as the land in dispute, the evidence is that the matter was not taken kindly as the appellant’s offending ancestor was sued and a fine of £40.00 exacted way back in 1952. The appellant cannot therefore rely on this to say that there were no conditions attached to the grant of the land.

 

30. In conclusion, from the foregoing it can be seen that the appeal must fail since the appellant did not have capacity to institute the action. This lack of capacity nullifies the whole trial and proceedings. Moreover, even if the appellant had the capacity to initiate the action, on the weight of evidence adduced by the appellant, he failed to discharge the burden of proof required of him by the law as he failed to prove a clear title to the land. The appeal is therefore dismissed in its entirety and the judgment of the Wenchi High Court dated 8th July, 2014 is hereby affirmed.

 

Sgd.

Angelina M. Domakyaareh (Mrs)

(JUSTICE OF APPEAL)

 

Sgd.

E. K. Ayebi JA                                   I agree              E. K. Ayebi

(JUSTICE OF APPEAL)

 

Sgd.

Torkornoo (Mrs), JA                         I agree G.          Torkornoo (Mrs)

      (JUSTICE OF APPEAL)

 

 

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