CEPHAS OKUONU ADDO vs. KOIWAH INVESTMENT CO. LTD., BISINA BORTEY & ORS., ANTHONY ODAI & ORS. & LOMOTEY BORTIER & ORS.
  • IN THE SUPERIOR COURT OF JUDICATURE
    IN THE COURT OF APPEAL
    ACCRA - A.D 2016
CEPHAS OKUONU ADDO - (Plaintiff/Respondent)
KOIWAH INVESTMENT CO. LTD., BISINA BORTEY & ORS., ANTHONY ODAI & ORS. AND LOMOTEY BORTIER & ORS. - (Defendants/Appellants)

DATE:  14TH JULY, 2016
CIVIL APPEAL NO:  H1/56/2016
JUDGES:  KUSI-APPIAH (J.A). – PRESIDING, ADUAMA OSEI (J.A.), KWOFIE (J.A.)
LAWYERS:  MR. W. BABA AVIO FOR THE DEFENDANT/APPELLANT
MR. S. M. ASANTE FOR THE PLAINTIFF/RESPONDENT
JUDGEMENT

 

KUSI-APPIAH, ( J.A.):

The respondent to this appeal, Cephas Okuonu Addo substituted by J. B. Bortey (hereinafter called the Plaintiff) brought an action at the High Court, Accra against the Appellants herein, Koiwah Investment Company Limited and three others (hereinafter called the Defendants) jointly and severally for declaration of title to a piece or parcel of land lying and being at Baatsonaa in the Greater Accra Region covering an approximate area of 80.26 acres.

 

In his statement of claim, the plaintiff pleaded that he was bringing the action for himself and on behalf of the late Edward Annan Addo family of Nungua. Apart from the declaration, he also sought recovery of possession of the said land, general damages for trespass and an order for perpetual injunction against the defendants and their privies.

 

The facts which gave to the case are as follows: The plaintiff who describes himself as the Head and lawful representative of the family of the late Edward Annan Addo of Nungua claimed (per his statement of claim) that by a Deed of a Gift dated the 26th day of August, 1960, and numbered at Lands Department as No. AC 7339/60, ALL that piece or parcel of land more particularly described in the indorsement to the writ was granted to the said Edward Annan Addo and his brothers forever by the Nungua Stool.

 

The plaintiff in his evidence stated that on the death of their sister in 1993, the family discovered a site plan that covered the 80 acres of land in the name of his late brother Edward Annan Addo. That upon a search at the Lands Commission it came out that a deed of gift was executed on 26th August, 1960 by Nii Odai Ayiku (IV), Chief/Mantse of Nungua in favour of his late brother E.A. Addo and Brothers on the said 80 acres of land.

 

Thereafter, the plaintiff and his family went into possession by granting parts of the said land to various grantees for farming and residential purposes.

 

It is the case of the plaintiff that the defendants have trespassed on portions of the said land and developed residential houses or estates thereon. That the 2nd, 3rd and 4th defendants are wantonly selling portions of the land to developers without the authority or consent of the plaintiff. The plaintiff contended that all attempts by the plaintiff and his family to stop the acts of trespass by the defendants have proved unsuccessful; hence the plaintiff’s action against the defendants herein.

 

On their part, the 1st defendant, a limited liability company registered under the laws of this country and the 3 other defendants, filed a 15 paragraph amended defence in which they vehemently denied plaintiff’s claim to the ownership of the land, the alleged deed of gift and possession of their late brother Edward Annan Addo and that of themselves. The defendants averred that the land had always been in the possession of the Nungua Stool and 2nd, 3rd and 4th defendants until in 1992 when a grant was made to 1st defendant. The 1st defendant contended they have been in lawful possession of their land since 1992 after a grant from the Nungua Stool which has received the concurrence of the Lands Commission and has been registered as No.830/1995.

 

According to the 1st defendant, when they took effective possession of the land, they expended large sums of money constructing road networks, paid for electricity to the area and built 50 units of 3-bedroom estate houses at various levels of completion on the land under the Government Home Finance Scheme. The defendant further averred that it was after the 1st defendant had invested an amount of about Four Hundred and Fifty Million Cedis (¢450,000,000.00) now Forty-Five Thousand Ghana Cedis in the land that the plaintiff approached the defendants alleging that he had an interest (30 acres) in the land and that he had a document to that effect.

 

The defendants challenged the plaintiff’s claim to the land and requested him to submit his documents he relied upon but he never did. Rather, the plaintiff issued criminal summons of trespass against 1st defendant’s company and the other defendant. They maintained that the Circuit Court, Accra in case No.1032/94 entitled The Republic vrs. Koiwah Investment Company Ltd. & 2 Ors. in

 

its judgment dated 28th June 1996 tendered in evidence as Exhibit ‘B’, while acquitting the accused persons made a finding of fact that the alleged recorded transaction No.AC7339/60 in the record of the Lands Commission, which the plaintiff tendered in evidence as his root of title to the land was falsified and inserted in the records of the Lands Commission.

 

The defendants contended that the Circuit Court in its judgment, Exhibit ‘B’ held inter alia that the plaintiff committed the forgery of the document with one Kwadjo Fofie of the Lands Commission. The defendant further contended the document which formed the basis of the plaintiff’s claim to the land was forged. They gave the particulars of fraud as follows:

 

PARTICULARS OF FRAUD

“(A) The name Nii Odoi Ayiku III was altered to read NII ODAI AYIKU IV.

(B) The site plan on the alleged transaction gift refers to ‘AND BROTHER’ and no reference to plaintiff or his family.

(C) Ink marks and alterations on Lands Commission records was found by Police Forensic Laboratory to have been made recently and not in 1960.”

 

After examining and evaluating the evidence adduced by the parties and their witnesses, the learned trial judge entered judgment for the plaintiff. In effect, the trial court decreed title of the disputed property on plaintiff’s family.

 

Dissatisfied with the judgment, the defendants have filed an appeal against the court’s decision on four grounds of appeal as follows:

“(a) The trial judge erred when he declared the plaintiff owner of the land in dispute when the plaintiff could not tender a Deed of Gift dated 26th day of August 1960 which he relied on as his root of title but only entries at the Lands Commission.

(b) The trial judge erred in failing to hold that the recorded transaction in favour of the plaintiff at the Lands Commission on the land in dispute is a forgery or defective.

(c) The trial judge erred in giving judgment in favour of the plaintiff when by plaintiff evidence his alleged deed of gift was made without the Gborbu Wulomo of Nungua.

(d) The judgment is against the weight of evidence.”

 

Arguing grounds (a) and (c) of the appeal together, counsel for the defendant in his written submission takes issue with the conclusion arrived by the trial judge in decreeing title of the disputed land to the plaintiff. He submitted that in a claim for declaration of title, the onus is on the plaintiff to lead sufficient evidence to establish acts of ownership including how he came by the land. Counsel contended that if a party relies on a deed of gift as his root of title, then there must be evidence of clear and valid document or instrument supporting such a gift or grant.

 

Learned counsel for the defendant argued that the plaintiff in his pleadings rely on a Deed of Gift dated 26th day of August 1960 and numbered at Lands Commission as No. AC7339/60 from the Nungua Stool as his root of title on the disputed land, he could not produce the said Deed of Gift in evidence. However, the pleadings of the plaintiff were vehemently challenged by the defendants in their defence that there was never any such gift by Nii Odai Ayiku IV, the Chief of Nungua to E. A. Addo and Brothers. During the trial, the evidence of the plaintiff including his witnesses was strongly controverted under cross-examination.

 

Counsel maintained that in such situation, the plaintiff who carry the evidential burden sufficiently to warrant a determination in his favour must produce sufficient evidence on the issue of a Deed of Gift on the subject property on the preponderance of probabilities to show that he has proved his case.

 

In the view of counsel for the defendant, the plaintiff in his attempt to discharge the onus of proving his title to the disputed land by producing the Deed of Gift dated 26th day of August 1960 in evidence, only gave evidence which is a departure from his pleadings. Counsel further submitted that the plaintiff testified that he first became aware of the land in 1993 when their sister died and found among her things a site plan of the land.

 

According to counsel for the defendant, it is trite law that a court cannot accept a case different from what a party himself has put forward. He argued that a critical look at the plaintiff’s statement of claim and the evidence adduced in court by the plaintiff and his witnesses amply support the fact that the plaintiff departed completely from his case as set out in his pleadings. Counsel quoted the case of Opanin Yaw Boakye (substituted for Opanin Kwadwo) vrs. Opanin Kwame Marfo (2011) 35 G.M.J. 103 S.C. and Gihoc Refrigeration (No.1) vrs. Hanna Assi (No.1) (2007-2008) S.C.G.L.R. 1 at p.10 to support his stand.

 

Counsel strongly contended that the failure on the part of the plaintiff to produce the Deed of Gift in evidence is fatal to his case. Similarly, counsel lamented that the evidence of the plaintiff which is a departure from his pleadings is also fatal to the case of the plaintiff.

 

By way of reply, the plaintiff contended otherwise. Tracing his root of title, counsel for the plaintiff submitted that there is overwhelming evidence on record indicating that there was indeed a gift of the disputed land from the Nungua Stool to the Addo Family. That an indenture with a site plan describing the land is part of a documentary proof of a grant. He claimed that the plaintiff exhibited the site plan which he described as his document.

 

Learned counsel further contended that to support his claim of the existence of the said gift of the land, the plaintiff rely on the site plan – Exhibit ‘A’ and public records at the Lands Commission together with his evidence which was corroborated in material particular by his witnesses. He further submitted that failure to tender the Deed of Gift could neither have rendered the plaintiff’s case fatal nor amount to a departure from the plaintiff’s case.

 

Counsel argued the site plan which the plaintiff meant was his document, ultimately led to the establishment of the existence of the Deed of Gift at the Lands Commission which document showed that plaintiff had land at Batsonaa gifted to the family by Nii Odai Ayiku IV in 1960. He maintained that the production of the Deed of Gift in court would not have added anything new to the existing evidence from both parties on record that a Deed of Gift exists at the Lands Commission. Counsel therefore concluded that the trial judge after evaluating the evidence came to the right conclusion that the plaintiff is entitled to declaration of title to the land in dispute.

 

Now, the question is: Was the plaintiff able to discharge the burden of a proof relating to his title to the land in dispute? The law relating to the standard of proof in all civil actions without exception was stated to be proof by preponderance of probabilities, having regard to Sections 11(4) and 12 of the Evidence Act. This means that the successful party must show that his claim is more probable than that of the other. See Adwubeng vrs. Domfeh (1996-97) S.C.G.L.R. 660. At the trial, the plaintiff and his witnesses testified to show how the (Addo) family came to acquire the dispute land. The plaintiff in his evidence-in-chief said:

 

“In 1993, our elder sister died. We found a site plan among her things. We took it, gave it to Mr. Inusah Adusah to check at the Lands Department. When he came back he said the document related to land which belonged to E.A. Addo and brothers. He brought some documents, they are with him.”

 

A cursory look at the evidence of the plaintiff including his witnesses indicate that he is relying on the site plan (Exhibit A) contrary to the Deed of Gift in his pleading to claim ownership of the disputed land.

 

I therefore warmly accept the contention of the defendants that this piece of evidence by the plaintiff is a departure from his pleadings. It is not the case of the plaintiff as pleaded in his statement of claim that in 1993 when their sister died, they found among her things a site plan and when they checked at Lands Commission it showed that the land in dispute was gifted to E.A. Addo in 1960 by the Nungua Stool.

 

A party’s case is defined, circumscribed and limited by his pleading, it hence take so much care and skill to draft. Where a plaintiff’s pleading is defective or bereft of essential averments, it could constitute a definite guarantee for his failure. The law is that a court cannot accept a case different from what a party himself has put forward. Put differently, a court cannot as a general principle, base its judgment on a case not open to a party on the pleadings. A critical look at the plaintiff’s statement of claim (paragraph 4) when compared to the evidence adduced by the plaintiff and his witness amply support the fact that the plaintiff departed completely from his case as set out in his statement of claim.

 

Faced with a similar issue, the Supreme Court in the case of Opanin Yaw Boakye (substituted for

Opanin Kwadwo) vrs. Opanin Kwame Marfo (2011) 35 G.M.J. 103 held as follows:

 

“This change in the version of the appellant between the statement of claim and the evidence adduced on trial is fundamental in nature and cannot be seen as a variation but a conflict in his case that has the effect of disentitling him to a relief, on the ground that he had departed substantially from his case and accordingly his case should not have been given a favourable consideration by the learned trial judge.”

 

Guided by the above principle of law, I hold that the change in the version of the plaintiff between the statement of claim and the evidence adduced on trial is not only fundamental in nature but also amounts to a complete departure from his case which is fatal to the case of the plaintiff. Consequently, I further hold that the plaintiff’s case should not have been given a favourable consideration by the learned trial judge.

 

It appears to me that the gravemen of the compliant in this appeal is that judgment ought not to have been entered for the plaintiff who failed to produced the Deed of Gift or for not calling the surviving signatory to the

 

Deed (i.e. NII Odai Ayiku IV the Chief of Nungua) to give evidence that a Deed of Gift dated 26th day of August, 1960 on the disputed land was granted to E.A. Addo and his brothers forever by the Nungua Stool.

 

This brings me to the issue of whether or not the non-production of a Deed of Gift allegedly made for the plaintiff in 1960 amounts to the failure of the plaintiff to discharge the burden of proof relating to his title to the land in dispute.

 

The plaintiff by paragraph 4 of his statement of claim pleaded that:

 

“4. By a Deed of Gift dated the 26th day of August, 1960 and numbered at Lands Department as No. AC 7339/60, ALL that piece or parcel of land more particularly described in the endorsement to the writ was granted to the said Edward Annan Addo and his brothers forever by the Nungua Stool.”

 

In paragraph 7 of the defendants further amended statement of defence, they pleaded as follows:

 

“7.The deed referred to in paragraph 4 of the statement of claim even if it existed is of no legal effect since it was not registered in accordance with the Lands Registry Act of 1962 Act 122.”

 

Indeed, evidence on record shows that when the defendants challenged the existence of the Deed of Gift dated 26th day of August, 1960, the same was made an issue by the plaintiff at the Directions Stage for determination by the court. And in pursuance to that, the following issues were set down relating to the Deed of Gift pleaded by the plaintiff:

 

“(1) Whether or not by a Deed of Gift dated the 26th day of August, 1960, the land particularly described in the endorsement to the writ was granted to the said Edward Annan Addo and his brothers forever by the Nungua Stool.

(2) Whether or not the alleged gift executed on 26th August, 1960 was ever made.”

 

To these issues, the plaintiff who asserts the claim that his family own the subject property which assertion is denied by the defendants, has to adduce evidence sufficient to establish a prima facie case as required by Section 14 of the Evidence Act. The plaintiff bears the burden of producing evidence and persuasion concerning the issue as to whether or not a Deed of Gift dated 26th August, 1960 on the disputed land was granted to E.A. Addo and his brothers forever by the Nungua Stool. (See Sections 10 and 11 of the Evidence Act, N.R.C.D. 323). It is only when he (plaintiff) has succeeded in doing so by his evidence, established facts from which an inference can reasonably be drawn in his favour that the burden of producing evidence would shift to the defendant. For if he the plaintiff did not produce that kind of evidence, a ruling would be given against him on that issue. In other words, by operation of the law, the onus was on the plaintiff to have established his title. However, the plaintiff could not lead any evidence to show that a Deed of Gift was ever made to his predecessors by the Nungua Stool.

 

The plaintiff took the view that the onus of proof shifted to the defendants merely because the site plan tendered in evidence as Exhibit A led to the establishment of the existence of the Deed of Gift at the Lands Commission which document showed that plaintiff had land at Batsonaa gifted to his predecessors by Nii Odai Ayiku IV in 1960. He thereafter spent his time attacking the defence put up by the defendants, pleading in his aid the principle nemo dat quod non habet in the instant case. The plaintiff argued that NIi Odai Ayiku IV and his elders of Nungua Stool after the Deed of Gift – (the

 

first grant) in 1960 to the plaintiff had nothing left to convey to the 1st defendant in 1992 since their interest had been extinguished when they earlier divested their land in question to the plaintiff. That principle applies where the plaintiff has already establish his title that indeed the alleged gift was ever made to his predecessors which he failed to prove. The principle cannot be invoked and applied in lieu of the necessity to prove one’s case.

 

I must say that in the face of a strong challenge by the defendants on the existence or otherwise of the Deed of Gift, the plaintiff who relied on this document as his family root of title to the land, should have substantiated his claim by tendering a copy or extract from the Lands Department to prove the existence of the Deed of Gift. He could have also called any of the supposed signatories to the Deed to confirm that the Deed of Gift was indeed made or granted to the E.A. Addo and Brothers by the Nungua Stool in 1960. But plaintiff woefully failed to do so. One wonders how the plaintiff could come out with the date and the registered number of the said Deed of Gift and yet could not produce a copy or extract from the Lands Department.

 

In any case, when the plaintiff was challenged under cross-examination about the existence of the

 

Deed, he said he could produce the Deed of Gift dated 26th August, 1960 but failed to do by himself or his witnesses. Emerging from the cross-examination of plaintiff at pages 140, 141 and 148 of the record of appeal are the following:

“Q. Have you brought the document you talked about?

A. Yes. Plaintiff produces a site plan.

Q. Is that all you got to show for the transaction?

A. That is the document, it was sent to Lands and a search report.

Q. So apart from the site plan the search you do not have any other document?

A. All the documents are at the Lands Department.

Q. There is no document of grant of land by Nungua Stool to the Addo family?

A. There is a document.

Q. There was never any such gift by Nii Odoi Ayiku to your family.

A. There was such a gift.”

 

Plaintiff called Pw2 Riley Henry Lutterodt an official of the Lands Commission to testify as to his cause. But the said witness could not produce all the documents that the plaintiff claimed were with the Lands Commission including the Deed of Gift dated 26th day of August, 1960. The Pw2’s testimony was followed by Pw3 (Nii Borketey Testsrenya II), the Secretary to the Nungua Traditional Council who said that Nungua Stool was aware of the grant of the land to E.A. Addo in 1960 but could not also produce a copy of the said Deed of Gift dated 26th day of August, 1960.

 

It is instructive to note that when the plaintiff pleaded by paragraph 4 of his statement of claim that:

“By a Deed of Gift dated the 26th day of August, 1960…”, he meant or implied that the said Deed of Gift is his root of title to the subject property. It follows that the plaintiff who based his case on the averment that the subject property was granted to his family in 1960 by a Deed of Gift and thus bears the burden of proof as enjoined by law (the Evidence Act Sections 10, 11 and 12), has to produce the Deed of Gift which he claims to be his root of title.

 

The trial judge rightly appreciated the legal burden which the plaintiff has to discharge to succeed in his claim when he delivered himself at page 2 of the judgment found at page 423 of the record as follows:

 

“It cannot be disputed that by plaintiff’s own case his evidence should include a Deed of Gift dated the 26th of August, 1960 and numbered at the Lands Department as No: AC 7339/60.”

 

However, the trial judge at the same page 423 of the record made a U-turn when he held that:

 

“It would appear however that the document the plaintiff means and is relying on is a site plant Exhibit A2 and not a Deed of Gift. Looking at the evidence in its entirety, it appears to me that this omission to produce the Deed of Gift itself cannot be fatal to plaintiff’s case…”

 

Indeed, the findings and conclusions made by the learned trial judge at page 423 of the record that plaintiff is relying on a site plan and not a Deed of Gift and that the omission to produce the Deed of Gift is not fatal to the plaintiff’s case, were in direct conflict with his earlier conclusion that the burden of proof lies on the plaintiff to produce the Deed of Gift.

 

For me, the trial judge having found earlier that the onus of proof lies on the plaintiff to produce the Deed of Gift which is his root of title, he has no right or authority to depart therefrom.

 

In any case, the document tendered in evidence as Exhibit A by the plaintiff which is a site plan allegedly covering the land in dispute is a mere self-serving act which is not permissible in law in proof of his case. The law was such that a person cannot by his acts prove anything in his favour (for they) …are not of the same class as admission against interest. Those self-serving acts could not be multiplied in proof of an issue. See Takoradi Flour Mills vrs. Samir Faris (2005-2006) S.C.G.L.R. 882 at p. 899 holding 4.

 

In this appeal, it was the plaintiff who first had to prove what he had claimed in his writ of summons. Unlike the plaintiff, the defendants not having made a counterclaim, assumed no onus of proving title. Necessity for this proof was imperative considering the fact that the 1st defendant had been in possession of the property for over three years by a deed of conveyance and had seriously challenged the plaintiff’s claim to the land, a fact which was not disputed by the plaintiff.

 

However, the plaintiff who bears the evidential burden to establish his claim or root of title that by a Deed of Gift dated 1960, the Nungua Stool granted the land in dispute to his family, woefully failed to discharge that burden.

 

It is a matter of regret that in the face of the overwhelming evidence on the record of appeal on a preponderance of probabilities against the plaintiff for failing to prove his case, the learned trial judge fell into an unpardonable error when he relied solely on Exhibit A, the site plan which has been found to be of no probative value and thus invalid to enter judgment for the plaintiff.

 

In Ogbarmey Tetteh vrs. Ogbarmey Tetteh (1993-94) 1 G.L.R. 353, the Supreme Court held in holding 4 that:

 

“In an action for a declaration of title, a plaintiff who fails to establish the root of title must fail because such default was fatal to his case.”

 

In the light of these principles, I hold that the plaintiff having failed to establish his root of title on the land in dispute must fail in his claim because such default is fatal to his case.

 

On the whole, it is clear that the trial judge improperly evaluated certain pieces of evidence, failed to appreciate the correct legal burden on the parties having regard to the evidence and the state of the pleadings, failed to examine critically the evidence as a whole, and finally failed to realize that the real nature of the plaintiff’s claim was an alleged Deed of Gift over a parcel of land which he failed to produce the said vital document to prove his case.

 

Having come to this conclusion, it is unnecessary to discuss any of the other interesting matters in this appeal.

 

In the result, I will allow the appeal and the judgment of the High Court, Accra dated 19th June, 2009 together with the consequential orders are hereby set aside.