JUDGEMENT

AGYEMANG (MRS.), JA:

In this appeal against the judgment of the High Court, Koforidua the appellant’s main complaint, set out as the sole ground of appeal, is that the judgment is against the weight of the evidence led.

These are the matters that have given rise to the instant appeal.

The original plaintiff (now deceased and substituted in this appeal as the appellant), commenced an action against the defendant herein (also deceased and substituted in this appeal as the respondent), and one other (deceased and not involved in the instant appeal), seeking inter alia, a declaration of title to a parcel of land, the sum of Ȼ1,400,000 being special damages for twenty palm trees felled by the second defendant, and a perpetual injunction restraining the defendants and their privies from in any manner, trespassing onto the plaintiff’s land.

It was the plaintiff’s case in pleading, that the land in dispute described as: lying at Densu Sector 11, Block K Koforidua, and bounded on all sides by the properties of Akua Adai, Kofi Bimpong, Akua Manu and Nana Dabrehene, measuring 5.44 acres more or less, was gifted to her by one of her uncles: Kwadwo Amankwah. The land which she alleged was originally owned by her grandfather Okyeame Adu allegedly became hers in this manner: Okyeame Adu allegedly gave same to his two sons Kwadwo Amankwah, and Kwame Opoku. Upon the death of Kwame Opoku, his brother Kwadwo Amankwah allegedly gifted the portion worked on by the deceased Kwame Opoku, to the plaintiff.

Although by her notice of appeal the appellant is seeking a setting aside of the judgment of the court below, in her written submission, the appellant has asked that the appeal be allowed, and that a trial de novo be ordered by this court. Her reasons for making this argument are five-fold:

1.    That the learned trial judge allegedly failed to place the burden of proof on the defendant in the circumstance where the appellant was in possession of the land and when the evidence led by the plaintiff was that plaintiff had been placed on the disputed land by the defendant’s grandfather Sarkodie;

2.    That DW4 the caretaker of the Sarkodie family lands gave boundary owners different from what the plaintiff stated in her testimony;

3.    That the learned trial judge allegedly descended into the arena of conflict,

4.    That the learned trial judge allegedly wrongfully placed weight on Exhibit B, an allegedly self-serving letter written in 2004 of events that had taken place about sixty years before, and

5.    That the learned trial judge allegedly wrongfully placed credit on the evidence of DW1 who testified on matters she claimed to have heard when she was eleven years old.

We will address the complaints together, but we will reserve our comments on whether or not the learned trial judge descended into the arena of conflict, so much as to taint the proceedings with grave impropriety, for last.

We must say at the outset that we are not persuaded by the arguments of the appellant canvassed on the omnibus ground. We say so for the following reasons:

The burden of proof in a civil case, including land matters, is on the preponderance of the probabilities, see: S. 12(1) of the Evidence Act, NRCD 323, and the burden of adducing evidence is on the party against whom a finding will be made if no evidence is produced by either side, see: S. 11(1) of the Evidence Act (supra). That is to say that the party asserting a matter has to produce evidence to substantiate it. In the instant matter, it is our view that the learned trial judge properly directed herself on the import of the evidence of the plaintiff which did nothing to substantiate her allegation of ownership of the land, through her uncle, and ultimately through her grandfather Okyeame Adu. In this enterprise, the trial judge carefully recounted the evidence led by the plaintiff, and concluded that it lacked substance.

The learned trial judge furthermore analysed the evidence of PW1, and came to the conclusion that it could not be relied on. On the other hand, she found the defendant and his witnesses, whose evidence she analysed at great length, to be more credible in their consistency. The learned trial judge also held the contents of exhibit B to be corroborative of the case of the defendant regarding in particular, the ownership of the land by the Kyidom family, and the licence granted to the plaintiff’s forbears and herself which placed the plaintiff on the disputed land. Exhibit B was a document introduced into the evidence by counsel for the plaintiff who tendered same through the defendant. In that document written in 2004, the plaintiff’s daughter Yaa Serwaa (substituted plaintiff) was warned to cease activities on the land such as would interfere with the ownership of the defendant’s Kyidom family. In that letter was recounted traditional evidence regarding how the said family granted generations of the plaintiff’s forbears (Akua Mperah and Madam Ohemaa, in their generation, Okyeame Adu, then Amankwah and then Nimo (the plaintiff)), licence to work on the land for their sustenance. As aforesaid, not only was this document not objected to by the plaintiff, but it was actually introduced into the evidence without reservation by plaintiff’s counsel who used it to challenge the defendant’s evidence. The matters stated therein were never refuted or challenged by the plaintiff. The learned trial judge thus rightly relied on it. Together with the oral evidence led, she made the findings of fact set out before now.

In the performance of our duty of rehearing the matter, we have reviewed all the evidence and find ourselves unable to find fault with the reasoning and the conclusion of the learned trial judge. In addition to the matters considered by the learned trial judge to arrive at the conclusion that the plaintiff failed to make out her case (which we are disinclined to disagree with), we will in this appeal, among other things, respond to the specific matters of complaint raised in the arguments of the appellant under the omnibus ground.

Contrary to the appellant’s argument in this appeal, the plaintiff’s burden of producing evidence was not met, and the court was right in not placing the burden of proof on the defendant who in fact, gave rival, more consistent evidence supported by traditional evidence that the court below accepted as worthy of credit.

In our judgment, since the plaintiff claimed ownership of the disputed land by way of a gift from her uncle Kwadwo Amankwah, she ought to have, but failed to call evidence on the gift she alleged, and more particularly the ownership of the land by her ancestors; Okyeame Adu, through whom her alleged donor: Kwadwo Amankwah acquired the land. This she should have done by leading traditional evidence including the evidence of boundary owners, to serve as corroborative evidence of the matters she had pleaded and repeated in the witness box. This lack of evidence was in face of the defendant’s pleading that the land in fact belonged to the Kyidom family who had granted a gratuitous licence to the plaintiff, on the understanding that she occupied same at the sufferance of the said Kyidom family.

Nor, was the plaintiff consistent in her description of the land she claimed, Rather, while the plaintiff seeking a declaration of title to land, described same in her statement of claim as: ‘lying at Densu Sector 11, Block K Koforidua, and bounded on all sides by the properties of Akua Adai, Kofi Bimpong, Akua Manu and Nana Dabrehene’, she gave her boundary owners as: Juabenhene, Maame Sika Tena, Kwame Duku and Aboah, when she was pressed to do so in cross-examination. Clearly, this inconsistency did not help her case, for as was held in Adjei Osae v Adjeifio and Ors [2007-2008] SCGLR 499: “…to succeed in an action for declaration of title to land… the plaintiff must establish by positive evidence the identity and limits of the land he claims”.

Furthermore, as one seeking such relief, the plaintiff bore the burden of proving on the balance of the probabilities, her root of title, the mode of acquisition of the disputed land, and her acts of possession, see: Mondial Veneer Gh Ltd v Amuah Gyebu XV [2011] 1 SCGLR 468; also Abbey and Ors v Antwi [2010] SCGLR 17.

In this enterprise, the plaintiff gave evidence that she had worked on the land for sixty years, having come by the land by way of a gift from her uncle Kwadwo Amankwah whose father Okyeame Adu was the alleged original owner thereof. None of these matters that she set out in pleading were substantiated by the evidence she led. As aforesaid, the plaintiff ought to have, but failed to call evidence on the gift she alleged, and more particularly the ownership of the land by her ancestors; Okyeame Adu, through whom her alleged donor: Kwadwo Amankwah acquired the land. The plaintiff merely repeated in the witness box what she had set out in pleading, which without more, could not amount to proof of the matters upon which reliance is placed, see: Majolagbe v Larbi and Ors. [1959] GLR 190. PW1 who testified in support of the plaintiff’s case, added nothing to it, for her evidence mainly centred on an arbitration she allegedly held which allegedly produced an award in favour of the plaintiff. As aforesaid, this witness who attempted to support the plaintiff’s claim of ownership of the land by the plaintiff’s grandfather Okyeame Adu, was so discredited through cross-examination that it was clear her testimony could not be relied on even if it had been weighty, which it was not for inconsistency and vagueness. Lastly, the substituted plaintiff’s failure to lead evidence which may have strengthened the plaintiff’s case, did not help matters.

The defendant made no counterclaim. Thus the only relief to be determined in the suit was whether or not the plaintiff was entitled to a decree of the court declaring her ownership of the disputed land. Thus where the plaintiff was not able to make out a sufficient case against the defendant, her claim stood to be dismissed, see: JASS Co. Ltd and Anor v Appau and Anor [2009] SCGLR 265 at 270 At the close of the case for the plaintiff, what stood as the evidence led in proof of a declaration of title to land was scant indeed and could not amount to proof of the ownership she asserted and sought as a relief in the action.

On the other hand, the defendant led credible traditional evidence regarding the ownership of the disputed land and explained away how the plaintiff came to be in possession of the land.

Granted that traditional evidence had to be weighed along with recent acts, and generally, evidence of acts of exercise of ownership and possession must take precedence over mere traditional evidence, to see which of the two rival stories appeared more probable, see: Adjei v Acquah and Ors. [1991] 1GLR 13, in our judgment, the scant evidence offered by the plaintiff upon whom lay the burden of proof could not stand up to the evidence led by the defendant as corroborated by the matters recounted in exhibit B, as well as, the testimonies of defendant’s witnesses including DW3 who declaring himself to have no particular favourite in the dispute, asserted that the land he occupied which was within Debenhene’s land, shared boundary with the defendant’s family.

In her arguments, the appellant also contends that it was wrong for the learned trial judge to have relied on the evidence of DW1 who on her showing, testified of matters that allegedly came to her attention when she was eleven years old. In our judgment, the learned trial judge who heard the parties and observed their demeanour was satisfied regarding the credibility of DW1,and said so; we have no reason to interfere with her assessment of the witness’ credibility. We note that the appellant has not laid any complaint beyond the age at which the witness allegedly heard the matter she gave sworn testimony on. That circumstance alone will not persuade us to discountenance the evidence in question, or fault the learned trial judge for relying on same for we continue to be mindful that this court, sitting on appeal, must be slow to overturn findings of fact made by the trial court, as the trial court has the exclusive right to make primary findings of fact, and has the advantage of seeing the witnesses and observing their demeanour, see: Agyenim-Boateng v Ofori and Yeboah [2010] SCGLR 861.

It is also trite that there is a presumption of correctness of the findings of fact of a trial court, see: Ampomah v Volta River Authority [1989-90] 2 GLR 28, and so the appellate court must be slow to disturb findings of fact, except where same could not be justified, was perverse, or otherwise incapable of support from the evidence, see: Koglex Ltd v Field [1999-2000] 2 GLR 437 SC.

We also find the complaint of the appellant challenging the acceptance by the learned trial judge on the contents of exhibit B, nothing more than a desperate clutching at straws. As already pointed out, Exhibit B which was written to the substituted plaintiff, was in fact tendered by counsel for the plaintiff through the defendant, and not only did counsel who had been instructed by the plaintiff not challenge its contents, but he apparently assumed the correctness of the contents and sought to use same to discredit the defendant’s testimony. The present argument of the appellant in this appeal questioning the weight the learned trial judge attached to it is thus, disingenuous.

Lastly, the appellant has complained that during the evidence of PW1, the judge descended into the arena of conflict such that the entire proceedings were tainted with impropriety. She contends that in the circumstance, the only proper course this court must take is to allow the appeal and order a retrial. The appellant stated that the learned trial judge descended into the arena 118 times during the testimony of PW1; thirty seven times during the testimony of the defendant herein; eleven times for DW1; six times for DW2; fifteen times for DW3, and three times for DW4.

It is not clear what per the appellant, constitutes “descent into the arena” with regard to the conduct of the learned trial judge in the instant matter, as the appellant failed to point out any specific instance wherein the learned judge fell afoul of acceptable standard required for the control of a court set out in Ss. 68 and 69 of the Evidence Act, NRCD 323.

We reproduce the said provisions:

“68.     (1) The Court may, on its own motion or at the request of a party, call or recall a witness.

           (2) The parties may cross-examine a witness called by the Court.

           (3) The Court may ask questions of a witness, whether the witness was called by a party or the Court.

(4) A party may object to questions asked by the Court and to evidence obtained by the Court’s questions at any time prior to the submission of the action to the tribunal of fact for determination.

(5) A juror or the jury may, through the Court, ask questions of a witness which the Court itself might ask and which the Court considers proper.

69.  The Court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as

(a)  to make the interrogation and presentation as rapid, as distinct, and as readily understandable as a) may be, and

(b) protect witnesses from being unduly intimidated, harassed or embarrassed.”

A perusal of the record leaves one undoubtedly with the impression that perhaps the learned trial judge more than once directed counsel for the plaintiff, and also did so a number of times when the defendant who appeared in person cross-examined his opponent’s witnesses.

With regard to the latter, it was evident that much of the directing was offered because he was unrepresented. While it may be apparent that the learned trial judge once and again interrupted the witnesses as they gave their testimony, the record however reveals that what she did could not be described as a departure from standards of reasonableness and propriety, for much of what she did was in an effort to seek clarity, something she was empowered to do under S. 69 of NRCD 323 (supra). It therefore in no way impaired her image as an impartial arbiter. Thus, the argument that her control of the court must lead to the ordering of a new trial is borne of artifice, and must be discountenanced.

We find the appeal wholly without merit.

The appeal therefore fails, and is accordingly dismissed.

Costs of GH¢5,000.00 to the respondent.