IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ACCRA - A.D 2016
COMFORT OFEIBEA DODOO - (Plaintiff/Respondent)
NII AMARTEY MENSAH & 4 OTHERS - (Defendants/Appellants)
DATE: 12TH MAY, 2016
SUIT NO: H1/38/2015
JUDGES: GYAESAYOR (PRESIDING), ADUAMA OSEI JA, DZAMEFE JA
THOMAS HUGHES FOR APPELLANTS
DAVID AMETEFE FOR RESPONDENT
ADUAMA OSEI JA:
In its judgment dated the 22nd of March, 2013, the High Court, Accra, made a declaration of title against the Defendants/Appellants in favour of the Plaintiff/Respondent in respect of a parcel of land situate at Amasaman in Accra, and containing an approximate area of 229.67 acres. Other reliefs granted against the Defendants/Appellants in the said judgment were damages for trespass in favour of the Plaintiff/Respondent, recovery of possession in favour of the Plaintiff/Respondent, and perpetual injunction. In the same judgment, the High Court ordered the Lands Commission to cancel a document which the Defendants had registered with the Commission as No. R 225/97 in respect of the disputed land.
Not satisfied with the judgment of the High Court, the Defendants/Appellants have appealed against the same to this Court and we now read the judgment of the Court. In this judgment, the Plaintiff/Respondent is referred to as “the Plantiff”, and the Defendants/Appellants are referred to as “the Defendants”.
The writ of summons by which the Plaintiff initiated her action was issued on the 20th of September, 2000, and by it, the Plaintiff sued “on behalf of herself and on behalf of the Atu We, Adjebua and Ayikushie families of Accra”. The indorsement on it was for the reliefs which the trial Court granted the Plaintiff in its judgment of 22nd March, 2013.
In the statement of claim that accompanied the writ of summons, the Plaintiff described herself as the daughter and surviving executrix of the late Mercy Naa Aponsah, also known as Mrs. Mercy Dodoo and owner of the disputed land. She also claimed to be a beneficiary of the disputed land together with the 3 families mentioned in the writ of summons by virtue of the Will of the late Mercy Naa Aponsah dated the 29th of December, 1984 and proved on 5th May, 1988. Among other things, her complaints against the Defendants, as expressed in the statement of claim, were that the 1st, 2nd and 3rd Defendants had fraudulently procured the registration of a portion of the disputed land by the Lands Commission in Accra, and had brought the 4th – 6th Defendants upon the land, who had been winning sand on portions of the land without lawful authority, and who by their unlawful activities on the land had damaged the soil as well as food and economic crops belonging to her and her caretakers.
The Defendants however stated in their amended statement of defence and counterclaim that the sand-winning activities on the disputed land were being undertaken by the 4th and 5th Defendants with the consent of the 1st Defendant, who was described as Head of the Nii Tetteh Mensah Family of Pobiman in the Greater Accra Region. The 2nd and 3rd Defendants were described as principal members of the said Nii Tetteh Mensah Family, and all their acts in the matter were alleged to have been performed on the authority of the said family. In the name of their family, the Defendants claimed ownership of the disputed land by settlement and contended that Mrs. Mercy Dodoo had no power to bequeath the disputed land to the beneficiaries mentioned by the Plaintiff or any other person. They also contended that the Plaintiff, not being the Head of her family, had no capacity to institute the action.
Having considered the issues raised in the action in the light of its evaluation of the evidence, the trial Court on the 22nd of March, 2013, entered judgment for the Plaintiff as stated above. Thereafter, on the 25th of July, 2013, in an application by the Plaintiff, the trial Court granted leave to the Plaintiff to amend relief ‘C’ of the indorsement on her writ by changing the number of the document mentioned therein from “R225/97” to “No.767/1999”. All references in the judgment to document number R225/97 were to be read as references to document number 767/1999.
The Defendants are in this appeal challenging the judgment of 22nd March, 2013 on the grounds that it is against the weight of evidence, and that the trial Court erred in holding that the Plaintiff had capacity to institute the action when the disputed land clearly belonged to different families. Subsequent to the filing of their Written Submission, the Defendants obtained leave of this Court and argued the following as an additional ground of appeal:
“The Learned Judge erred in granting leave to amend the reliefs in the writ of summons of the Plaintiff after final judgment and also amending judgment when he was clearly functus officio as the amendment was not only limited to correcting clerical errors”.
The judgment appealed against may be found at page 108 to page 128 of the Record of Appeal and the Notice of Appeal may be found at pages 164 and 165 of the Record. The Written Submission arguing the additional ground set out above was filed on 8th December, 2015.
Counsel for the Defendants started his arguments in support of the appeal with Ground 2, which challenged the capacity of the Plaintiff to institute the action. Counsel observed that a plaintiff cannot prosecute an action when he does not have capacity, and where the capacity of a plaintiff to sue is challenged, he is obliged to establish it before his case can be heard on the merits. Counsel noted that in the present case, the Defendants had challenged the Plaintiff’s capacity to sue. He contended that from the evidence, the Plaintiff had failed to establish her capacity and the trial Court was wrong in holding otherwise.
To support his contention that the Plaintiff had failed to establish her capacity to sue, Counsel cited this Court’s decision in Kwan Vs. Nyieni  GLR 67 and submitted that, as a general rule, the head of family, as the representative of the family is the proper person to institute a suit for recovery of family property. Counsel referred to portions of the evidence on record and contended that, on the evidence, the property the Plaintiff was claiming in the present case was family property and the Plaintiff was therefore obliged to establish that she was head of family. In the view of Counsel, that obligation was however not met. Counsel acknowledged the existence of exceptions to the general rule but contended that even under the exceptions, the Plaintiff had failed to establish her capacity.
Counsel argued further that if the land in dispute is considered as a bequest to the Plaintiff and 3 other families, namely the Ato We, the Adjebua We and the Ayikushie families, the point still remained that the Plaintiff’s capacity to sue in respect of it was not established. Counsel explained that the Plaintiff’s beneficial interest was limited to the portion that was devised to her and that was what she could sue for. To be able to do this, however, the Plaintiff was obliged to demonstrate her one-fourth portion of the bequest by evidence. But, again, in the view of Counsel, that obligation had not been met. Not being able to establish her one-fourth portion, the Plaintiff could sue in respect of the entire bequest only with the express permission of, or with a power of attorney from, the 3 other families. There was however no evidence of a power of attorney or express permission from the said families.
A further contention Counsel made under Ground 2 in his filed submissions was that the vesting assent which the Plaintiff tendered in the action was a nullity. His explanation was that it should have been prepared for the beneficiaries individually, with the portion of each beneficiary marked out on an approved site plan attached to the vesting assent. This not having been done, the vesting assent was a nullity, and the Will itself was also invalid.
Ground 1 of the appeal states that the judgment is against the weight of evidence and in arguing this ground, Counsel for the Defendants contended that if the trial Court had properly evaluated the documents tendered in evidence by the Plaintiff, it would have dismissed them as conferring no title on the Plaintiff. It was also contended under this ground that the evidence on record compelled a decision that the Defendants’ predecessor-in-title was in possession of the disputed land and, further, that the evidence of the boundary owners supported the Defendants’ case. In the view of Counsel, the trial Court decided the case against the Defendants not because the evidence does not support the Defendants’ case, but because the trial Court failed to adequately analyse the evidence.
Arguing the additional ground for which leave was granted by this Court on 29th May, 2015, Counsel for the Defendants submitted that after judgment, a judge becomes functus officio in respect of the judgment. The only amendment permissible in such a situation is an amendment that corrects clerical errors, or mistakes which, to any discernible eye, would be seen as obvious mistakes or errors. Counsel contended that this was not the case with the amendment which the trial Court granted on 25th July, 2013. In the view of
Counsel, the amendment of 25th July, 2013 had the effect of rendering the whole trial nugatory. The amendment brought into being two judgments in one case.
Counsel for the Plaintiff responded to the Defendants’ challenge to the capacity of the Plaintiff by first drawing attention to the indorsement on the writ that the Plaintiff sued “on behalf of herself and on behalf of Atu We, Adjebua and Ayikushie families of Accra”, and to paragraph 1 of the statement of claim, where the Plaintiff described herself as the daughter and surviving executrix of the late Mercy Naa Aponsah, the owner of the disputed land, and also to paragraph 2 of the statement of claim where the Plaintiff described herself as a beneficiary of the disputed land together with the Atu We, Adjebua We and the Ayikushie We families. Counsel contended that from the writ and the statement of claim, the capacities in which the Plaintiff sued were that of an executrix and that of a beneficiary of the Will of her deceased mother. The Plaintiff had not stated anywhere that she was suing as head of her family or as head of any of the families mentioned in the writ or statement of claim.
In his view, the disputed land having been devised under a will, the only person clothed with capacity to sue in respect of the estate was the Plaintiff, as the surviving executrix. Counsel contended that the authorities cited by Counsel for the Defendants are applicable where the capacity of a person suing in respect of family property is in issue, but not in a situation like the present one where the surviving executrix who is also a beneficiary has sued in respect of the property devised in the will. Counsel stressed that the disputed land was in issue as the self-acquired property of the testatrix, and not as family property. Even if the will devised portions of the land to other families, as devises contained in a will, it is only the Plaintiff, as the executrix of the will, who can sue or be sued in respect of the devised property. The Plaintiff did not have to bring herself under any of the exceptions set out in Kwan Vs. Nyieni (supra).
In responding to Ground 1 of the appeal, Counsel for the Plaintiff observed that a judgment of a court of competent jurisdiction is presumed valid until the contrary is established. Counsel contended that for this reason, where an appellant claims that a judgment of a trial Court is against the weight of the evidence adduced, the burden was on the appellant to show that the judgment was in fact against the weight of the evidence. Counsel contended that in this appeal, the Defendants have failed to demonstrate that the judgment is in fact against the weight of evidence. On the basis that an appeal is by way of re-hearing, Counsel referred to various parts of the evidence on record and contended that the evidence disclosed several acts and conduct which were consistent with ownership of the disputed property by the Plaintiff. He also contended that the evidence established the boundaries of the Plaintiff’s land and also left no doubt about the validity of the will.
Regarding the additional ground in respect of which the Defendants filed submissions on 8th December, 2015, Counsel for the Plaintiff drew the attention of this Court to the fact that while the judgment, the subject of this appeal is dated 22nd March, 2013, the ruling which the Defendants seek to challenge under the said additional ground is dated 25th July, 2013. Counsel contended that the decision in the ruling is interlocutory, and the Defendants had 21 days within which to appeal against it, if they were so minded. Counsel contended that this appeal does not cover that ruling and the ruling cannot therefore properly be challenged as an additional ground in this appeal. In the view of Counsel, the procedure by which the Defendants seek to challenge the ruling of 25th July, 2013 under an additional ground in this appeal is incurably bad.
I agree with the observation made by Counsel for the Defendants that without capacity, one may not sue or be sued in court. In my view, a challenge to the capacity of a party to a suit is not merely a challenge to his capacity as a person (natural or artificial), but also a challenge to his capacity in relation to the subject matter of the suit. An important question that the challenge raises is whether the party, if he is the plaintiff, has a vested interest in the subject matter of his claim. In other words, the person suing is challenged as to his right to appear in a court of law in respect of the subject matter of his claim.
In the present case, Counsel for the Defendants has contended that the property the Plaintiff herein is claiming is family property and to be able to prosecute her claim in respect of the property, therefore, she must either establish that she is head of family or bring herself within the exceptions acknowledged in Kwan Vs. Nyieni (supra). Among the exceptions acknowledged by van Lare Ag. CJ in Kwan Vs. Nyieni were the situation where family property is in danger of being lost to the family, and it is shown that the head, either out of personal interest or otherwise, will not make a move to save or preserve it; or where, owing to a division in the family, the head and some of the principal members will not take any steps; or where the head and the principal members are deliberately disposing of the family property in their personal interest, to the detriment of the family as a whole. Where special circumstances existed, subject to satisfying the court that the action had been instituted to preserve the family character of the property, an action by any member of the family would be entertained upon proof that he had been authorised by other members of the family to sue, or upon proof of necessity.
Brobbey, JSC has also suggested in In Re Ashalley Botwe Lands; Adjetey Agbosu and Others Vs. Kotey and Others [2003 – 2004] SCGLR 420, that the exceptions set out in Kwan Vs. Nyieni should be seen as a reflection of the large measure of flexibility that should attend consideration of capacity to institute actions on behalf of families. He considered that once the person suing was a member of the family claiming ownership of the property and the action being instituted was principally to protect family property, the action could be entertained.
In the same case, that is, the Ashalley Botwe Lands case, Wood, JSC, as she then was, expressed the view that van Lare, Ag. CJ should not be read in Kwan Vs. Nyieni, as providing a closed category of those possible or exceptional cases in which the general rule would be inapplicable. She noted that customary law is dynamic and considered that Kwan Vs. Nyieni left it open for the exceptional circumstances to expand, when the need arose. She stated at page 433 of the Report:
“Therefore, the question whether any particular case falls within the stated exceptions rather than the rule or even an exception not identified in Kwan Vs. Nyieni, is dependent on the particular facts of the given case.”
In the view of Wood JSC, as she then was, depending on the peculiar facts of the case, even ordinary members of a family would be entitled to sue in preservation of family property.
So, what are the particular facts of the present case? As noted above, Counsel for the Defendants has contended that the property the Plaintiff is claiming in this suit is family property. Indeed, 3 families are mentioned in the writ and statement of claim as being among the persons on whose behalf the Plaintiff is suing. Counsel for the Plaintiff has however denied that the Plaintiff sued as head of her family or as head of any of the families mentioned in the writ or statement of claim. How does this Court read the disclosures on the writ and statement of claim herein as to the capacity in which the Plaintiff sued?
I take note that on the writ of summons herein, the Plaintiff gave notice that she was suing
“on behalf of herself and on behalf of Atu We, Adjebua and Ayikushie families of Accra”, and I further take note that the Plaintiff described herself in the statement of claim as the daughter and surviving executrix of the late Mercy Naa Aponsah. The disputed property is asserted as the self-acquired property of the late Mercy Naa Aponsah and she is alleged to have devised it in her Will to the Plaintiff together with the Atu We, the Adjebua We and the Ayikushie We families. It is further alleged that probate of Naa Aponsah’s Will was taken on 5th May, 1988, and the Plaintiff is alleged to be the surviving executrix named in the Will.
I have looked at the Will at page 283 to page 285 of Volume 2 of the Appeal Record and I find that the Plaintiff was indeed appointed as an executrix under it. I also notice from the Vesting Assent, which is at page 313 of Volume 2 of the Record, that by it, the Plaintiff as “the only surviving personal representative and executrix of the will of the late Mrs. Mercy Amponsah Dodoo” assented to the vesting of the disputed land in “Mrs. Comfort Ofeibea Dodoo as beneficiary and also to hold same in trust for the Ato We (Family), Adjebua We family, and Ayikushie family”.
To the best of my understanding, by the above-quoted words in the Vesting Assent, the Plaintiff has vested the disputed property in herself as a beneficiary, and has also made herself a trustee for the Ato We, Adjebua We and the Ayikushie We families in respect of the said property.
I notice that during the cross-examination of the current Plaintiff, it was suggested to her that Comfort Ofeibea Dodoo had no right to vest the property in her name. That may well be so. But then, it is up to the other beneficiaries to challenge her right to do so, if they feel aggrieved. Looking at the Vesting Assent as it stands now, it proves a vested interest on the part of the Plaintiff in respect of the disputed property. I am aware of the contention by Counsel for the Defendants that the vesting assent is a nullity, and that the Will itself is invalid. I do not however consider that contention a helpful contribution in this discussion on capacity. This is because probate of the Will has not been set aside. If therefore the vesting assent is a nullity, it will only mean that the properties devised under the Will have not been distributed yet and, with the death of Nii Ashie Hammond, the Plaintiff remains the only person clothed with capacity to deal with any of those properties. In my view, the record discloses such interest on the part of the Plaintiff in respect of the subject matter of this suit as to entitle her to a hearing. I accordingly dismiss Ground 2 of this appeal.
Having decided that the Plaintiff had capacity to sue, I now proceed to consider Ground 1 of the appeal. This ground contends that the judgment of the trial court is against the weight of evidence. It is now trite that when in a civil appeal the appellant contends that the judgment of the trial court is against the weight of the evidence, an obligation is placed on the appellate court to analyse the record of appeal on its own in order to consider whether on a balance of the probabilities, the conclusions of the trial Court have reasonable support from the record. It is however important to keep in mind that this obligation of the appellate court is carried out on settled principles. One such principle emerged in the case of Martin Nortei Codjoe Vs. Emmanuel Kwatchey & Others, 2 WACA, in which Webber CJ (Sierra Leone) underscored that the burden of proving that the judgment is against the weight of the evidence is on the appellant. For this reason, he advised that if after weighing the evidence, the appellate court was in doubt as to where to place the balance, it must dismiss the appeal. He however suggested that, if after carefully weighing and considering the evidence on record, the appellate court came to the conclusion that the judgment was wrong, it should not shrink from overruling the trial court.
Noting that an appeal is by way of re-hearing, Ollennu JSC also expressed the view in Praka Vs. Ketewa  GLR 423, that an appellate court is entitled to make up its own mind on the facts and draw inferences from them. He however cautioned that an appellate court should not interfere with findings of fact made by a trial court, unless those findings are clearly shown to be wrong. Where the decision on the facts depended upon credibility of witnesses, His Lordship was of the view that “the appeal court ought not to interfere with findings of fact except where they are clearly shown to be wrong, or where those facts are wrong inferences drawn from admitted facts or from the facts found by the trial court”.
In acknowledgment of the deference that appellate courts normally accord findings of fact made by trial courts, Azu Crabbe JSC, as he then was, also observed in Nyame Vs Tarzan  1GLR 8, that because the trial judge had the advantage of observing the demeanour of witnesses, "their candour or their partisanship, and all the incidental elements so difficult to describe which make up the atmosphere of an actual trial," the appellate court should be reluctant to disturb a finding of fact by the trial judge. On this subject, Brobbey JA, as he then was, also stated in Nsiah Vs. Attuahene [1992 – 93] 2 GBR 898, that an appellate court would not disturb findings of fact made by a trial court “unless there is no evidence in support of the findings or the preponderance of the evidence heavily weighs against those findings, or the inferences from the facts were wrong”.
In the judgment the subject matter of this appeal, the trial Court declared title to the disputed land in favour of the Plaintiff, awarded the Plaintiff damages for trespass to the said land, ordered recovery of possession of the land in favour of the Plaintiff, and ordered the Lands Commission to cancel documents registered on the land by the Defendants. An order of perpetual injunction was also made against the Defendants and their agents or servants in respect of the land, and the Defendants’ counterclaim was also dismissed. By Ground 1 of this appeal, this Court is called upon to consider whether the above decisions of the trial Court have reasonable support from the record, and I consider this question guided by the wise words of the eminent jurists above referred to.
I will first consider the decision as to title to the disputed land. The evidence as to how the Plaintiff became owner of the disputed land was given by Vivian Naa Kwamah Ankrah. She stated that she was the daughter of Comfort Ofeibea Dodoo, the original plaintiff in this case. She explained that her mother was the daughter of Mrs. Mercy Aponsah Dodoo, who died testate and made Comfort Ofeibea Dodoo and Nii Ashley Hammond the executors of her Will, in respect of which probate had been granted. She stated that the land mentioned in clause 3 of the Will of the late Mrs. Mercy Aponsah Dodoo was the same as the disputed land herein.
On how the disputed land devolved on the late Mrs. Mercy Aponsah Dodoo, Vivian Ankrah related the story of one Klokor Klotey having a misunderstanding with her sister called Atwea and deciding to part ways with her sister and find a place of her own to live with her husband, who was a chief. Eventually, Klokor Klotey purchased a large tract of land of which the disputed land forms a part from one Nana Ampah. The witness described Klokor Klotey as her “great, great, great grandmother”. The witness stated that after Klokor Klotey had purchased the land, she gave it to her brother, Klotey, to take care of it for her. She said Klotey gave portions of the land to settler farmers who paid “adode” during Christmas and Homowo. Klokor’s brother had the nick-name “Ato” and the place was called Atoman.
I find on record evidence by which the Plaintiff seeks to establish that from acquisition of the land up to the time the dispute herein arose, Klokor Klotey and her successors had maintained possession of the land. Reference, in this respect, may be made to the testimony of Anani Foli, who gave evidence as the Plaintiff’s 2nd witness. Anani Foli described himself as a farmer who cultivated mangoes, oranges, cassava and other crops at Atoman. He said he was 68 years and was born at Atoman. He grew up to find his father farming on the disputed land and he joined him in that occupation. According to Anani Foli, when he grew up, his father introduced Vivian Ankrah to him as the daughter of his landlady, Comfort Ofeibea Dodoo in respect of Atoman lands. The witness stated that apart from being a farmer, he collected tolls or “adode” from the farmers on the land and gave them to the landlady, Ofeibea Dodoo. He said he was caretaker for 30 years and that other people before him had been caretakers. His father had been a caretaker for over 40 years. He gave his father’s name as Foli Karege and said his father had also been preceded by other persons as caretakers in respect of the land on behalf of the Plaintiff. Anani Foli also testified that it was Mrs. Aponsah Dodoo who placed his father on the land and made him caretaker. He said Mrs. Aponsah Dodoo gave birth to Comfort Ofeibea Dodoo and when Mrs. Aponsah died Comfort Ofeibea Dodoo took over and his father, Foli Karege, worked for her as caretaker. Anane mentioned some of the villages on the land as Atoman, Logokope, Ahiasekope, Gbedemakope, Davorkope, Ozuremekope, Amahiakope, Kwaku Akimkope, Kwaku Hovovikope and Ogorvikope. He said there were 3 caretakers for the land. Anani Foli said a lot more to suggest that for several years, he and several other persons had been in possession of the disputed land as grantees of the Plaintiff. Evidence to the same effect was given by Agnes Obgorvie Dede. There was also the evidence of Nii Amo Djan, the Chief of Djanman, who testified that since he was installed as a chief in 1973, he had known Anane Foli as caretaker of Atoman land, and had also known the Plaintiff as owner of the said land right up to the date of his testimony.
The foregoing is evidence which would suggest that the disputed land had been acquired by the Plaintiff’s ancestor, Klokor Klotey several years ago, that Klokor Klotey had taken possession of the land upon acquisition, and that up to the time the present suit arose, possession had remained in the generations that followed Klokor Klotey.
But there is also evidence on record that supports the 1st Defendant’s claim to ownership of the disputed land. The strongest of such evidence comes from David Awuletey Obodai, the current 1st Defendant. David Obodai denied that the disputed land was the property of the Plaintiff and asserted that it was rather the property of the Nii Tetteh Mensah family. He tendered as Exhibit 2 the family’s document on the land and testified that the family acquired the land through Nii Tetteh Mensah, who was a hunter and a farmer. He said it was through Nii Tetteh Mensah’s farming and hunting activities that he found the disputed land and settled on it. He named the place of settlement as Akwarkyere and gave the date of settlement as 1910. He contended that all the villages claimed by the Plaintiff as settlements on her land rather belong to his family, and he mentioned some of the villages as Amewakope, Kwakukope, Davorkope, Ahiasekope, Gbedemakope and Obgorviekope. In respect of Obgorviekope, David Obodai testified that when Obgorvie was alive he was paying “adode” to Nii Ayi, an old man, and that after Obgorvie’s death, his son paid “adode” to Nii Amartey Mensah, the original 1st Defendant. There is also the evidence of Selasie Kofi Segbao who acknowledged the 1st Defendant as his landlord in his testimony. He said he was a farmer of 60 years old and had lived at Ozoamekope on the disputed land since he was born. The 1st Defendant’s title to the disputed land was also acknowledged by Amahia Mawu, who testified as the sixth witness of the Defendants and stated that the 1st Defendant was his landlord.
Merely on the face of the evidence on record, either side in this dispute seems to have made some case in support of a claim to title. There may be more testimonies on one side than the other, and the testimonies for one side may be more elaborate than they are in the case of the other. But as the courts have always said, it is not the number of witnesses called by a party that wins the day. It is the truth element in what the witnesses say. And arrival at the truth in a matter is the purpose of assessing evidence. So where we have conflicting testimonies as in the present case, the testimony that wins the day is the testimony which the court considers more likely to be true on a balance of the probabilities. And the question is, as an appellate court, can we determine the truth element in the evidence better than the trial Court could do?
Ollennu’s obvious response to this question would be that where the decision on the facts depends upon credibility of witnesses, “the appeal court ought not to interfere with findings of fact except where they are clearly shown to be wrong”. Azu Crabbe would explain that the atmosphere in which a trial takes place is not quite the same as that in which an appeal is heard. He would elaborate that apart from the advantage the trial court has in observing the demeanour of witnesses, there are certain elements “so difficult to describe which make up the atmosphere of an actual trial” that the appellate court should hesitate in interfering with findings of fact made by the trial court. Weber would simply counsel that where after weighing the evidence, the appellate court is in doubt as to which way the balance of the probabilities weigh, it must dismiss the appeal.
In the judgment appealed from, it seems to me that the findings on which the decisions of the trial Court were based were largely influenced by the trial Court’s view of the credibility of witnesses. For example, regarding the founding of Atoman, the trial Court found no reason to doubt the evidence led by the Plaintiff, and it accepted the evidence as the truth. The Defendants’ case of sharing boundary with Atoman was rejected because the trial Court did not believe the Defendants’ evidence on that issue. Also, having observed the 1st Defendant as he answered questions during cross-examination, the trial Court came to the conclusion that he had little knowledge about the land in dispute. Several other instances of conclusions influenced by credibility of witnesses can be found in the judgment.
What I have not found in this appeal, however, is a demonstration by the Defendants that the findings, conclusions and decisions of the trial Court did not have reasonable support from the record. This Court will therefore not disturb the trial Court’s decision that the Plaintiff is the owner of the disputed property. It should follow that the decision of the trial Court dismissing the Defendants’ counterclaim will not be disturbed. Now, if the Plaintiff is the owner of the disputed land, then given that the Defendants admit that their entry upon the land was in their own right and without the consent of the Plaintiff, the trial Court’s decision awarding the Plaintiff damages for trespass cannot be questioned. Neither can the decision ordering recovery of possession against the Defendants be questioned. Again, the Plaintiff will in the circumstance be entitled to the restraining order made in her favour against the Defendants in respect of the disputed land.
Ground 1 of the appeal therefore fails and the same is dismissed.
Now, as noted above, on the 29th of May, 2015, this Court granted leave to the Defendants to argue an additional ground of appeal which contends that the trial Court erred in granting leave to the Plaintiff to amend the reliefs in her writ of summons after final judgment, and also in amending the judgment when the trial Judge was functus officio.
The submissions arguing this additional ground were filed on 8th December, 2015. I have read the said submissions as well as those filed on behalf of the Plaintiff in response, and I wonder whether they are submissions made for this appeal.
The record shows that the judgment, the subject matter of this appeal, was delivered on 22nd March, 2013, and the Notice appealing against it was filed on 17th June, 2013. The ruling which granted the amendment the Defendants are complaining about in the additional ground was given on 25th July, 2013. In my view, the judgment of 22nd March, 2013 and the ruling of 25th July, 2013 are separate decisions made by the trial Court and the ruling of 25th July, 2013 cannot be read as part of the judgment of 22nd March, 2013. The judgment of 22nd March, 2013 does not also mean the ruling of 25th July, 2013.
Now, the Notice that initiated this appeal reads as follows:
“Take notice that the Defendants being dissatisfied with the judgment of the High Court, Accra, Land Division which is contained in the judgment dated 22nd March, 2013 by His Lordship S.H. Ocran hereby appeal to the Court of Appeal on the ground set out in paragraph 3 and will at the hearing seek the relief set out in paragraph 4”
This appeal is therefore specifically against the judgment of 22nd March, 2013, and in my view, a grievance against a decision other than the said judgment or against a decision not contained in the said judgment cannot properly be prosecuted when the Notice of Appeal has not been amended to include that other decision. The Defendants sought leave to argue, and have argued, the additional ground without seeking leave to so amend the Notice of Appeal as to bring the additional ground within its scope. As far as this appeal is concerned, therefore, the additional ground argued is redundant and cannot be entertained.
Apart from the above, I think the record discloses a further reason why the arguments advanced under the additional ground cannot be entertained in this appeal. As already noted, the ruling which the arguments seek to challenge under that ground was read on
25th July, 2013, while leave to file that ground was obtained on 29th May, 2015. This was almost 2 years after the ruling had been read, and the Defendants were utterly out of time to file an appeal against it, if they were aggrieved by it. In respect of that ruling, the Defendants had slept on their right to resort to the appeal procedure and I see the arguments advanced under the additional ground as an attempt to circumvent the limitation rules for appeals. In my view, this Court will be condoning an abuse of its process if it entertains the arguments advanced under the additional ground. This is another reason why the additional ground ought to be dismissed and I do dismiss it. This means that this appeal has failed in its entirety and the same is hereby dismissed.
Cost of One Thousand Ghana Cedis (¢1,000.00) against each of the Appellants in favour of the Respondent.