JUDGEMENT

MARIAMA OWUSU, J.A.

 On 24^th June, 2016, the High Court, Land Division, Kumasi, entered judgment in favour of the plaintiffs and dismissed the defendant’s counterclaim.

 In her judgment, the trial Judge held among other things that;

 “After the consent judgment has been fully complied with and all the contributors are allotted shares in the limited liability company so formed, they will be entitled to dividends to be declared by the company until the consent judgment is complied with to the letter, the plaintiffs and for that matter all the contributors will have a legal right to remain on the property and operate the stores they occupy…”

 Now, dissatisfied with the decision of the High Court, the defendant appealed to this court on the following grounds:

 The honourable trial court erred when it misconstrued pre-finance of a construction project (stores) as amounting to ownership of the store(s)

The honourable court erred as it misconstrued and misapplied the well settled legal principle of “quiequid plantatuo sola solo codit” when she declared plaintiffs as owners of the “shops” when defendant’s ownership of the landed property was not in dispute.

The honourable trial court erred, when without and justificable legal basis, declared the tenancy agreement entered into between the plaintiff’s and the defendant a nullity.

The honourable trial court erred when it applied the principle regarding the purchaser of land to this case contrary to the facts of the case and the evidence on record. 

The honourable trial court erred, when it failed to hold that the plaintiffs relinquished their rights of ownership when they willingly executed tenancy agreement with defendants as tenants to the disputed property.

The honourable court erred when it shifted the evidential burden onto the defendants notwithstanding the plaintiffs’ inability to prove their title to the property.

The honourable court erred when it awarded excessive damages and cost against the defendant/appellant herein notwithstanding the clear facts of the case.

The judgment is against the weight of evidence on record. 

Additional grounds of appeal to be filed on receipt of the record of appeal.

The relief sought from the Court of Appeal is that the judgment of the High Court dated 24^th June, 2016 be set aside and judgment entered in favour of the defendant/appellant as per its counterclaim.

 At this stage, it is noted for the record that, the defendant/appellant did not file additional ground(s) of appeal as indicated in its notice of appeal.

 Also, in this appeal, the plaintiffs/respondents would be referred to simply as plaintiffs and the defendant/appellant would be referred to as defendant.

 Before dealing with the arguments advanced in support and against this appeal, I will give a brief background of the case.

 The plaintiffs and 29 others by their writ of summons claim against the defendant the following reliefs:

a.    Declaration that the plaintiffs and for that matter the occupiers are the rightful owners of the respective shops they occupy.

b.    Declaration that any purported tenancy executed between the occupiers and the defendant or its predecessor is null and void.

c.     Damages.

d.    Any further order or other relief(s) as shall be just in the circumstances of this case.

e.    Perpetual injunction restraining the defendant from in any way interfering with plaintiffs’ right of quiet enjoyment.

In the 14-paragraph statement of claim which accompanied the plaintiffs’ writ of summons, they averred among other things that some of the plaintiffs were trading in kiosks at the site where the disputed property has been constructed. The plaintiffs averred further that sometime in 1998 after consultation between the traders, KMA and the school that owned the land, the property in dispute was constructed by plaintiffs who pre-financed the project by contributions from the occupants.

Plaintiffs continued that, initially, the occupants levied themselves Gh¢700.00 with the understanding that, after completion, all the traders would be allocated with stores that stand on the site they operated. Later, according to plaintiffs, outsiders were also allowed to contribute Gh¢900.00 and later Gh¢1,200 for some of the stores. It is the case of the plaintiffs that, they realized that some people had clandestinely formed a company, Gabbat Co. Ltd and registered the lease in respect of the land on which the building stands. This resulted in some contributors taking legal action against Gabbat Co. Ltd.which action resulted in a settlement that said all the contributors are joint owners of the property. In spite of the consent settlement, some people have formed the defendant company claiming the latter is the owner of the building complex which was constructed through the contributions of members hence this action.

On receipt of the plaintiffs’ writ of summons, the defendant reacted by filing its statement of defence denying plaintiffs’ claim and put the latter to strict proof of their averments. In particular, the defendant, averred that sometime in 1999, it entered into an agreement with the Lands Commission who granted all that piece or parcel of land known as site for shop in the Tarkwa Markro layout situate in Kumasi measuring about 0.33 acre and delineated on Plot No. LDA 960/K 48790 for which the defendant company constructed 125 commercial stores thereon. Hitherto, according to defendant, before the said grant, all traders on the land were mere licensees of the Lands Commission. The defendant averred further that, there was a misunderstanding between its directors and some stakeholders which matter ended at the High Court but was subsequently settled out of court where upon consensus, the name of the company was amended/changed to Asomdwe Co. Ltd., the defendant company herein.

The defendant continued that, its directors announced to the general public that anyone who wanted to rent a store room could contact the financial secretary of the defendant for some of the stores to carry their commercial activities which said request the plaintiffs and others applied and defendant granted same. It is the case of the defendant that, it subsequently entered into tenancy agreement with the plaintiffs which agreements were documented.

The defendant concluded that, the plaintiffs are estopped from contending the contrary in the said tenancy agreement and that all the stores and the land on which the stores are located belongs to the defendant. Having challenged the defendant’s title to the stores, the defendant claims recover of possession of the said commercial stores being occupied by plaintiffs and counterclaimed against plaintiffs as follows:

a.    A declaration that all the commercial stores being occupied by the plaintiffs at Tarkwa Markro layout registered under Title No. 18397 and Serial No. 56/99 delineated on Plan No. LDA 960/K 48790 is the property of the defendant absolutely and exclusively.

b.    A declaration that the plaintiffs are potential tenants of the defendant.

c.     Recovery of possession of the said stores.

See paragraph 1 to 15 of the statement of defence of defendant filed on 26^th October, 2010.

At the trial, 2^nd and 3^rd plaintiffs testified and called two witnesses. The defendant also testified through its secretary and called one witness.

At the end of the trial, plaintiffs’ claims were upheld. Defendant’s counterclaim was dismissed hence this appeal.

In arguing the appeal, counsel for the defendant argued ground ‘c’ first. He then submitted that, the plaintiffs entered into a tenancy agreement with defendant and Exhibit ‘2’ supports this fact. Counsel continued that, in Exhibit ‘2’, the plaintiffs were described as “Tenants” and defendant as “Landlord”. Counsel then posed this question;

“Whether the Agreement, Exhibit ‘2’ was procured by fraud, undue duress, mutual mistake or whether it is against the 1992 Constitution of Ghana or any statute for it to be rendered illegal?

Counsel then submitted that, since the plaintiffs are not attacking the Tenancy Agreement on any of the above stated grounds by the provisions of Section 25 of the Evidence Act, they are estopped from challenging same and the Tenancy Agreement are conclusively presumed to be true as between the parties and are bound by the Agreements i.e. Exhibit 3, 4, 5 and L.

Counsel referred to the case of P. Y. Atta and Sons Ltd. Vs. Kingsman Ent. Ltd. [2008] 17 MLRG 170, 174 per Brobbey JSC:

“The commonest rule is that extrinsic evidence is not admissible to vary or alter the words in a document…”

His Lordship continued that:

“In considering every agreement, the paramount consideration is what the parties themselves intended or desired to be contained in the agreement. The intentions should prevail at all times.”

He concluded that:

“The rules of interpretation mandate that the document should be interpreted in a view that will cause the intention of the parties to prevail.”

Based on the foregoing, counsel for the defendant submitted that, the plaintiffs failed to discharge their persuasive and evidential burden/obligation to prove why the tenancy agreements were null and void and so must be cancelled by the court. He submitted that they are bound by the Tenancy Agreement in terms of Sections 25 and 26 of the Evidence Act.

Additionally, counsel argued that plaintiff sought as a relief that the agreement they signed with Gabbat substituted by the defendant must be cancelled by the court. Defendant tendered Exhibit ‘D’ which is the incorporation of the defendant with all the names of all the members who were the original members. Not a single plaintiff signed the tenancy agreement as an illiterate. Counsel submitted that, the plaintiffs never proved what made them owners of the commercial stores and why they signed the tenancy agreements. Counsel concluded on this ground that, since the plaintiffs never pleaded fraud as required by Order 11 Rule 8 (1) of C. I. 47, the trial Judge erred in law in rejecting the tenancy agreement between the parties.

On grounds ‘a’, ‘b’ and ‘f’ which were argued together, counsel for the defendants referred to the 1^st relief sought by the plaintiffs in their Writ of Summons and Issues ‘3’ and ‘4’. He then submitted that, if the plaintiffs knew they were owners of the commercial stores in dispute, why did they sign the tenancy agreement with defendant as Tenants.

Counsel then submitted that the plaintiffs are bound by the tenancy agreements which they all signed. Again, plaintiffs claim that, they are owners of the store simply because they contributed towards the building of the stores. But none of the plaintiffs tendered a single receipt of their contributions. Secondly, according to counsel, merely contributing to the building of the stores never made a contributor an owner of a store. He continued that, the land in question is government land on which all the traders were trading. By Exhibit ‘2’, the land was officially granted to Gabbat Co. Ltd.

Counsel submitted that, at the time Gabbat applied for the lease, the plaintiffs had no interest in the land. However, all the original members occupying the land were made members of the defendants. He argued that, the plaintiffs were the outsiders who were given tenancy agreements by the defendants. Therefore, according to counsel for defendants, the trial Judge erred when she held that the plaintiffs were original occupants at where the stores were constructed. The plaintiffs also failed to discharge the burden of proof cast on them. He referred to the following cases to buttress his point:

1.    Faroe Atlantic Co. Ltd. Vs. The Attorney General [2006[ 1 GMLR 124

2.    Gligah Vs. Republic [2010] 25 GMJ 1, 5

3.    Maesk Ghana Ltd. Vs. Jemt Co. Ltd. [2012] 48 GMJ 45 and

4.    Zabrama Vs. Segbedzi [1991] 2 GLR 221

In response to the submissions of counsel for the defendant, counsel for the plaintiffs after recounting the respective case of the parties and going through the grounds of appeal stated that, a resolution of the eight ground of appeal namely, the judgment is against the weight of evidence on record, would dispose of the whole grounds of appeal.

Counsel then stated what is required of us as an appellate court when a party complains that the judgment is against the weight of evidence and also the obligation on such an appellate court. He referred us to the cases of Tuakwa Vs. Bosom [2001-2002] SCGLR 61; Djin Vs. Musah Baako [2007-2008] SCGLR 686 and In Re Okine (deceased); Dodoo and Another Vs. Okine &Ors. [2003-2004] SCGLR 582 and submitted that, when an appellant raises this ground of appeal, this court, as an appellate court is under an obligation to go through the entire record to satisfy itself that a party’s case is more probable than not. Additionally, the appellant canvassing such a ground of appeal has to properly demonstrate the lapses he is complaining about.

Counsel for the Defendant then submitted that, contrary to the submissions of counsel for the defendant, the plaintiffs led material evidence to prove their claim and tendered documentary evidence. Exhibit ‘A’ to ‘P’ to prove their claim. Counsel continued that, the findings of facts by the trial Judge were also supported by the documentary evidence.

Counsel stated that, the plaintiffs’ case is that their involvement and contribution led to the construction of the stores complex at Anomanye Nkwanta the subject matter of this suit. That whilst constructing the stores, the Lands Commission ordered the traders and artisans “to stop work” and they detailed some of their members to sort things out with the Lands Commission but their representatives took advantage of their appointment as representatives of the traders on the disputed land on which the stores stood to clandestinely form a company (Gabbat) in which they constituted themselves as Directors and Shareholders of the Company.

According to the plaintiffs when the formation of the company (Gabbat), by their representatives came to their knowledge it sparked a lot of litigations both civil and criminal against the Shareholders/Directors of Gabbat and the criminal case led to a settlement out of court, Exhibit ‘B’. Secondly, the plaintiff tendered Exhibit ‘K’ which clearly shows that the Traders and Artisans on the land started construction of the land in dispute before Gabbat, the defendant’s predecessor was formed. Exhibit ‘K’ is dated August, 1999.

Thirdly, in Exhibit ‘B’, the terms of settlement reached by the Directors/Shareholders of Gabbat who were being prosecuted for defrauding among other charges the Artisans and Spare parts dealers who were the owners of the stores in dispute. Exhibit ‘G’ is the proceedings before the Circuit Court, Kumasi.

We think counsel for the defendant did not appreciate the burden of proof on the parties considering the fact that each party is seeking declaration of title to the property in dispute.

In the case of Jass Co. Ltd. Anor. Vs. Appau & Anor. [2009] SCGLR 265 their Lordships in holding (1) of the headnotes held that:

“The burden of proof is always put on the plaintiff to satisfy the court on a balance of probabilities in an action for a declaration of title to land. Where the defendant has not counterclaimed and the plaintiff has not been able to make out a sufficient case against the defendant, then the plaintiff’s claims would be dismissed. Whenever a defendant also files a counterclaim, then the same standard or burden of proof would be used in evaluating and assessing the case of the defendant, just as it was used to evaluate and assess the case of the plaintiff against the defendant.”

See also the case of Veronica Opoku Vs. Mary Lartey [2018] 119 GMJ, 244, 248 where their Lordships held that:

“It is pertinent to note that the defendants having filed a counterclaim, assumed the position of the plaintiff and was therefore under a duty to discharge the burden of persuasion on the issues…”

This means that plaintiffs bear the burden to prove their claim as required by Section 10, 11 and 12 of the Evidence Act.

So, the question is, were the plaintiffs able to prove their claim before the trial court?

The trial Judge answered this question in the affirmative when she held that:

“Upon a careful evaluation of the evidence on record on the balance of probabilities, I find that the plaintiffs, whether as ‘original occupiers’ or ‘outsiders’, made financial contributions towards the construction of the stores in issue and that the defendant’s predecessor through whom it traces its title acquired the lease after the commencement of the construction. For that reason and as the Court of Appeal rightly held, their financial contributions created a proprietary interest in their favour and if I may add, they were not financiers of a project of a third party in which they had no interest.”

We think this finding is clearly supported by the evidence on record. Exhibit ‘K’ is clear on this. Exhibit ‘K’ is a letter from Lands Commission dated 5^th August, 1999, addressed to;

Mr. K. A. Asante-Krobea

Sekyere Chambers

P. O. Box 3458

Kumasi

I will quote paragraph 2, 3 and 5 for emphasis. The letter reads:

“Nevertheless, upon the strength of the petitioner’s letter dated the 19^th of February, 1999, the Encroachment Committee of the Ashanti Regional Lands Commission made on the spot inspection of the land and ordered the developers to stop construction works on the site. The developers actually did stop construction work on the site…”(our emphasis)

Paragraph 3, the Letter continued:

“Later the Encroachment Committee which inspected the land separately also confirmed my findings on the site recommended that the site could be approved for the developers at a penalty since the developers had spent over ¢42,000,000.00 (forty-two million cedis) on the nearby school. (our emphasis)

Moreover, before final approval could be given, I made a search in our Records Room to verify whether the land was a Stool land or a State land. Records information at the office reveal that the land falls wholly on State land and that the land had not been affected by any recorded transaction at the Lands Commission.”

The last paragraph reads:

“Lastly, but not the least, upon the recommendation of the Encroachment Committee of the Ashanti

Regional Lands Commission at its sitting on 21^st July, 1999, approved the developers’application with two conditions. Firstly, the developers were to pay ¢10,000,000.00 (ten million cedis) to the Lands Commission for developing a State land without approval.

Secondly, the developers had made a Statutory Declaration to undertake the constructionof two Headmaster Bungalow, one Library for the school, the completion of the fence wall and to improve the school’s playing field. The Headmaster of St. Joseph’s Catholic Junior Secondary School had also written to confirm that the developers had commenced the constructionof the school projects as directed by my outfit.”

This letter was signed by the Regional Lands Officer, Daniel Osei-Sekyere. See pages 334 of the Record of Appeal.

Exhibit ‘K’ confirms the evidence of the 2^nd and 3^rd plaintiffs, Traders and Artisans that the construction of the stores begun in 1999. It also confirms the plaintiffs’ case that Lands Commission ordered the plaintiffs or the Traders and Artisans to stop the construction. In the face of Exhibit ‘K’, the defendant’s averment in paragraph 3 of its statement of defence to the effect that; “The defendant says that the land was granted to the defendant company before the defendant constructed about 125 commercial stores thereon” needed proof.

The trial High Court Judge was therefore right when she held that:

“One of the initial occupants by name Alhassan Kwabena testified as PW1. He told the court that he has been on the land on which the stores were constructed since the year 1984. Like 2^nd and 3^rd plaintiffs, PW1 also said in his evidence that the occupiers levied themselves Gh¢700.00 at that time for the construction of the stores and that one Daniel Bonsu @ Nana Kwame Bonsu was the person nominated to receive the contributions.

At this point, the evidential burden shifted on to the defendant, one Kwadwo Tuffour who described himself as the secretary to the defendant company gave evidence on its behalf. He testified that those who were originally on the land pre-financed the construction of the 125 stores. In his evidence in chief and under cross-examination, he confirmed that the traders who pre-financed the building initially paid Gh¢700.00 and later adjusted to Gh¢900.00 as a result of increment in prices and further reviewed upwards too Gh¢1,200.00.”

In the light of the plaintiffs’ evidence, Exhibit ‘K’ and ‘C’ series, vis-à-vis paragraph 3 of the defendant’s statement of claim, the evidential burden shifted onto the defendant to prove that the latter was granted the disputed land before it constructed the 125 commercial stores. In the case of In Re Ashalley Botwe Lands; Adjetey Agbosu and Others Vs. Kotey & Others [2003-2004] SCGLR 420, 425 holding (5) of the Headnotes, their Lordships held that:

“The Court of Appeal erred in holding that the defendants had no obligation to prove their defence under the provisions of the Evidence Decree 1975 (NRCD 323), the burden of producing evidence in any given case was not fixed but shifted from party to party at various stages of the trial, depending on the issue(s) asserted and or denied. The trial Judge, therefore had rightly held that the evidential burden fall on the defendants to lead credible evidence to displace the effect of their admission of the plaintiffs’ undisturbed possession of the disputed land…”

In the words of Brobbey JSC:

“The effect of Section 11 (1) and 14 and similar Sections in the Evidence Decree 1975 may be described as follows: A litigant who is a defendant in a civil case does not need to prove anything. The plaintiff who took the defendant to court has to prove what he claims he is entitled to from the defendant. At the same time, if the court has to make a determination of fact or of an issue, and that determination depends on evaluation of facts and evidence, the defendant must realize that the determination cannot be made on nothing.

If the defendant desires the determination to be made in his favour, then he has the duty to help his own cause or case by adducing before the court such facts or evidence that will induce the determination to be made in his favour. The logical sequel to this is that if he leads no such facts or evidence, the court will be left with no choice but to evaluate the entire case on the basis of the evidence before the court, which may turn out to be only the evidence of the plaintiff. If the court chooses to believe the only evidence on record, the plaintiff may win and the defendant may lose.

Such loss may be brought about by default on the part of the defendant. In the light of the statutory provisions, literally relying on the common law principle that the defendant does not need to prove any defence and therefore does not need to lead any evidence may not always serve the best interest of the litigant even if he is a defendant.”

Relating the case cited supra to the case under consideration, the plaintiffs per Exhibits ‘K’, ‘B’ and ‘G’ series proved their claim that they levied themselves and started the construction of the stores before they mandated some of their leaders to see the Lands Commission when the latter asked them to ‘stop work’. The defendant is alleging that they obtained the lease in respect of the disputed land before it constructed the 125 stores. In the face of the documentary evidence, Exhibits ‘K’, ‘B’ and the evidence of 2^nd and 3^rd plaintiffs, the defendant needed to prove its averments but it woefully failed to do that. In coming to this conclusion that the plaintiffs proved their claim on the balance of probabilities, we have not lost sight of the Tenancy Agreements the defendant had latched onto as its trump card. But more importantly, the defendant representative admitted virtually plaintiffs’ case when he said:

“The land is located on the Kumasi-Offinso road at Tarkwa Markro at Anomanye-Nkwanta. It was the Lands Commission which granted the land to defendant company on 30/9/1999. Presently, there are commercial stores on the land. There are 125 stores on the land. The stores were constructed in 1999.

Some people had kiosk on the land before the land was granted to the defendant’s company. I was one of those persons on the land including Nana Kwame Bonsu, Kwabena Num and the 3^rd plaintiff. The other plaintiffs were not on the land. The 125 stores on the land store were not constructed by the defendant’s company. The building of the stores were financed by those on the land. 

It is never correct that the building was pre-financed by traders who were there. Those who were originally on the land pre-financed the construction of the 125 stores. (our emphasis). The traders who pre-financed the building initially paid Gh¢700 and later adjusted to Gh¢900.00 as a result of prices of items going up. I know Gabbat Co. Ltd. The Gabbat Co. Ltd. was formed by four of our traders. Gabbat Co. Ltd. was formed for all the members trading there. Those who were already on the land were given stores…”

A look at Exhibits ‘3’, ‘4’ and ‘5’, the Tenancy Agreement show that they are dated 17^th November, 2001, 22^nd September, 2001 and 1^st January, 2002 respectively. Exhibit ‘G’, the Settlement Report, is dated 11^th September, 2008 and Exhibit ‘B’, the Terms of Settlement is dated 22^nd August, 2008. Therefore, the Tenancy Agreements, Exhibits ‘3’, ‘4’ and ‘5’ will not hold once it has been agreed that Gabbat Co. Ltd. was not the rightful company to hold the disputed property on its own and on the principle of Nemo Dat Quod Non Habet. Gabbet Co. Ltd. cannot give what it did not have. Secondly, by executing Exhibit ’B’, the Terms of Settlement, defendant compromised the Tenancy Agreement, that is, Exhibits ‘3’, ‘4’ and ‘5’. Consequently, the trial Judge rightly declared the Tenancy Agreements null and void.

Grounds ‘a’, ‘b’, ‘c’, ‘d’, ‘e’ and ‘f’ fail and they are accordingly dismissed.

On ground ‘h’ of the appeal which is that, the judgment is against the weight of evidence adduced at the trial, flowing from our resolution of grounds ‘a’, ‘b’, ‘c’, ‘d’, ‘e’ and ‘f’, the trial Judge properly evaluated the evidence on record, specifically Exhibits ‘K’, ‘B’, ‘3’, ‘4’ and ‘5’ as well as ‘G’, the Terms of Settlement and come to the right conclusion.

Consequently, the findings of the trial Judge were clearly supported by the evidence on record.

Ground ‘h’ of the appeal has not been made out and it is also dismissed.

This brings us to ground ‘g’ of the appeal which complained that the damages and costs awarded the plaintiffs were excessive. The defendant never argued this ground of appeal and it is deemed abandoned.

From all of the foregoing, there is no merit in the appeal and it is accordingly dismissed. The judgment of the trial Court together with the consequential orders are hereby affirmed.