IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION),
KOFORIDUA - A.D 2018
AMA KISSIWAA AND KWAME ASARE - (Plaintiffs / Appellants)
KWASI ODURO BOTWE - (Defendant / Respondent)
DATE: 24TH JULY, 2018
SUIT NO: H1/10/2018
JUDGES: K. A. ACQUAYE JA (PRESIDING), S. K. GYAN JA, M. M. AGYEMANG (MRS.) JA
MR. J. K. BOAKYE MENSAH FOR PLAINTIFFS / APPELLANTS
MR. KING HUSSIEN IBN ALHASSAN FOR DEFENDANT / RESPONDENT
In this appeal against the judgment of the High Court, Nkawkaw, in the Eastern Region of Ghana, delivered on the 27th day of April 2017, the plaintiffs/appellants (referred to hereafter as the plaintiffs), seek the setting aside of the judgment entered for the defendant respondent (referred to hereafter as the defendant).
The antecedents of the instant appeal are as follows:
The plaintiffs, children of Opanin Kofi Kora Asare, late of Akim Akakom, in the Atiwa District of Ghana, brought suit against the defendant, the grandnephew of the deceased gentleman at the court below, seeking the following: a declaration that the farm and farm lands of the late Kofi Kora Asare given to the plaintiff and her siblings, and cultivated at their expense, was the property of the plaintiff and her siblings, special and general damages, and a perpetual injunction restraining the defendant and his privies from entering onto, and dealing with the lands in dispute.
It was the case of the plaintiff that the estate of her deceased father who died in 1994, included four farms situate at places, known and called: Sraha, Afiafiso, Camp, and Tumfa road which he acquired in their virgin form.
The plaintiff pleaded in her statement of claim, that in 1995, after the celebration of the one-year anniversary of his death, these self-acquired properties of their late father were divided into two, one half was given to his family, and the other half, to the plaintiffs. Later, the plaintiff pleaded in her Reply to the Statement of Defence, that the land was shared in the following manner: the farms at Camp and Tumfa Road were given to the plaintiff and her siblings, and the other two farms: Sraha and Afiafiso were divided, each one into two, and shared between the said children of the deceased patriarch, and his customary successor.
It was the plaintiffs’ evidence that following the ceremony at which their father’s customary successor Madam Afua Nkrumah, gave to them a portion of their father’s self-acquired farms, the plaintiffs went onto the land and planted cocoa and food crops, and that they used the lands thus for a period of time. Regarding the said period, while at first, the first plaintiff testified that they had farmed the land for thirty years, she later amended it to sixteen years.
It was the plaintiffs’ evidence that it was after this period of sixteen years on the lands, that the defendant, newly retired from his work as a soldier, returned from Accra to the village and laid claim to the farms as well as to the house occupied by the plaintiff which had allegedly been the self-acquired property of her father Kofi Kora Asare.
The plaintiffs who made no claim regarding a certain house described as No A11, Akakom, in their Statement of Claim, filed a Reply in which they pleaded facts to claim title to that house which they alleged was the self-acquired property of their late father Kofi Kora Asare. In this regard, the first plaintiff, giving evidence for herself and her siblings testified that although No A11, Akakom, was the self-acquired property of their father Kofi Kora Asare, the defendant had thrown her out of it.
The defendant denied that the said farms or House No. A11 Akakom, were the self-acquired property of the late deceased father of the plaintiffs. The defendant, a grandnephew of the plaintiffs’ father, pleaded that upon the death of Kofi Kora Asare, his successor, Afua Nkrumah, gave out the self-acquired properties of Kofi Kora Asare to the plaintiffs, his children. These properties he described as farms at Camp and Mirehuaso.
Of the three other farms (apart from Camp), that the plaintiff claimed in the instant suit: Tumfa Road, Afifieso, and Sraha, the defendant alleged that they were not the self-acquired properties of Kofi Kora Asare, but were the defendant’s family’s properties. In his explanation, the defendant alleged that the said properties had come to the late Kofi Kora Asare, as customary successor of his siblings Kwabena Korah Asare, and Adiyiah as well as three members of his wider family: Nana Kissiwa, Nana Kwadwo Asare, and Nana Kwame Dapaah. The defendant alleged that as such customary successor, Kofi Korah Asare the father of the plaintiffs, was in possession of family properties which he cultivated with his wife and children. He alleged that it was for this reason that upon his death, his customary successor Afua Nkrumah decided to distribute the properties belonging to her predecessors, to their children: the children of Kofi Korah Asare, the children of Kwabena Korah Asare, and the children of Adiyiah. He stated that this was done in 1995, during the celebration of the first anniversary of the death of Kofi Kora Asare the father of the plaintiffs. It was the defendant’s evidence that Afua Nkrumah the customary successor of Kofi Korah Asare, distributed the estate thus: the farms at Camp and Mirehuaso, were given to the children of Kofi Kora Asare, while the children of Kwabena Asare and Adiyiah were also given the self-acquired properties of their fathers.
The farms at Sraha, Afiafiso, and Tumfa Road, he averred, not being the self-acquired properties of Kofi Kora Asare, were given to the family of the defendant, and not to the plaintiffs, the children of Kofi Kora Asare.
It was the defendant’s further evidence, that in spite of this alleged distribution which was done in the presence of the first plaintiff and her siblings, the first plaintiff had gone onto lands not included in their share, and purported to claim them as lands belonging to them. This he had resisted.
In the prosecution of his counterclaim, the defendant alleged that the house described as H/No/ A11 Akakom, was put up by the grandmother of the deceased Kofi Kora Asare: Nana Kissiwa. He further alleged that Nana Kissiwa’s daughter Dansoa, had lived in the house and brought up her own five children, including the said Kofi Kora Asare, the father of the plaintiffs, thereat. Thus, he alleged that the house was also his family’s property, and that Kofi Kora Asare had lived thereat with his family, occupying it as family property. Thus, he claimed that the first plaintiff was not entitled to occupy it as of right, as belonging to her own father Kofi Kora Asare, it being the family property of Kofi Kora Asare’s family.
The defendant made a counterclaim in the following terms:
An order of the court for the ejectment of the plaintiff and her siblings from House No. A11, Akakom, the property of the defendant’s family at Akakom; a declaration of title to the farmlands at Sraha, Afiafiso, and Tumfa Road, all on Akakom Stool land; and an order for perpetual injunction to restrain the plaintiffs as her privies from entering upon, or having anything to do with the said farms.
After a full trial, the learned trial judge held that the lands claimed by the plaintiff: Sraha, Afiafiso, and Tumfa Road, were indeed the property of the defendant’s family, and that same had been used by the plaintiffs’ late father in his capacity as customary successor to members of his family. He therefore dismissed the plaintiffs’ claim, but entered judgment for the defendant upon his counterclaim. By the said judgment, the learned trial judge ordered the ejectment of the plaintiffs from House Number A11, Akakom, and granted the declaration of title sought by the defendant to the farmlands at Sraha, Afiafiso and Tumfa Road, as well as the perpetual injunction sought against the plaintiffs and their privies.
It is against the said judgment that the instant appeal has been brought.
The plaintiff set out two grounds of appeal which we reproduce hereafter (a third ground promised the filing of another ground upon receipt of the record of appeal, but was abandoned):
a. The judgment is against the weight of the evidence;
b. That the trial judge erred in giving judgment to the defendant.
Before we delve into the consideration of the issue(s) raised by the appeal, we will first have regard to the preliminary matter of the competency of the second ground of appeal. The said ground gives no information regarding the area of error, and is furthermore, vague and general in terms, failing to identify the complaint in respect of which the jurisdiction of this court is invoked to rehear the matter.
The said ground therefore sins against Rule 8(4) and 8(6) of the Court of Appeal Rules CI 19 which read:
“(4) Where the grounds of an appeal allege misdirection or error in law, particulars of the misdirection or error shall be clearly stated.
(6) No ground which is vague or general in terms or which discloses no reasonable ground of appeal shall be permitted, except the general ground that the judgment is against the weight of the evidence; and any ground of appeal or any part of the appeal which is not permitted under this rule may be struck out by the Court of its own motion or on application by the respondent.”
Ground b. will therefore be struck out as incompetent in accordance with Rule 8(6) of CI 19.
That leaves us with the consideration of Ground a. which is the omnibus ground: that the judgment is against the weight of the evidence led.
The authorities are clear, that a complaint of this nature invokes the jurisdiction of this court set out in Rule 8(1) of the Court of Appeal Rules CI 19, to rehear the matter. This rehearing involves evaluating the evidence led, both oral and documentary, and coming to our own conclusions, in support of, or against the trial court’s findings, see: Oppong Kofi and Ors v. Attibrukusu III  1 SCGLR 176 also: Tuakwa v Bosom [2001-2002] SCGLR 61.
The circumstances in which we will set aside the findings of the trial judge include where we find that same are not supported by the evidence, or that the reasons given in support thereof are not satisfactory, or furthermore, that among other things, there is revealed in the judgment some blunder or error in the evaluation of the evidence led by the trial court resulting in a miscarriage of justice, see: Koglex Ltd No.2 v Field  SCGLR 175. In carrying out our duty, we are mindful that 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  SCGLR 861.
Was the judgment against the weight of the evidence led?
We have had regard to the plaintiffs’ evidence, a summary of which we set out as follows: that their father Kofi Kora Asare was the owner of the four farmlands: Camp, Sraha, Tumfa Road, and Afiefiso. The first plaintiff who gave evidence for herself and her siblings, testified that their father acquired the land in their virgin state and worked thereat with his family until his death in 1994. She averred, that upon the death of their father, his family, per his customary successor, distributed his estate by giving the said children of the deceased two farms outright: Tumfa Road and Camp. The other two: Sraha and Afifieso, were divided between the plaintiffs and their mother on one side, and the said customary successor on the other. The first plaintiff further testified that on that occasion, she, her siblings and their mother presented aseda, the customary expression of gratitude, to seal the gift: an amount of GHC30 and a crate of soft drinks and a sheep to their father’s customary successor, Afua Nkrumah. She also testified that following this, she and her siblings had gone onto these lands and cultivated cocoa and some food crops thereat and had been in peaceful possession until the defendant returned to the village and started harassing her, harvesting her food crops and causing her arrest by the Police.
The plaintiffs’ sole witness, was the head of their mother’s family. Corroborating the evidence of the first plaintiff regarding the giving of the properties to the plaintiffs by the customary successor, this witness testified that he had been present at the one year anniversary celebration of the death of Kofi Kora Asare, where the plaintiffs had requested for, and were given a share of the farms they had made with their father. He alleged also that he witnessed the presentation of the aseda: GHC30, one sheep and soft drinks.
The defendant did not deny that the father of the plaintiffs: Kofi Kora Asare, was a farmer who acquired lands on which he farmed. Nor did he contradict the evidence of the first plaintiff that at the first anniversary of the death of the late patriarch, the customary successor gave out the self-acquired properties of the deceased to his children.
What he contended, was that apart from the Camp farm, the farmlands now claimed by the plaintiffs as having been gifted to them, were in fact not so done. The defendant’s evidence that the father of the plaintiffs had inherited properties from his family members, and that on the day of distribution, other deceased siblings of the plaintiffs’ late father had their properties given out to their children and the rest to the family, was corroborated by no less a person than the head of family of the deceased Kofi Kora Asare (the plaintiffs’ father), and by DW2, a beneficiary of the reported distribution, being the son of Kwabena Kora Asare, whose properties, Kofi Kora Asare was said to have succeeded to.
In the face of the pleading of the defendant setting out these matters, it was the duty of the plaintiff to plead and lead credible evidence to establish that the farmlands listed as belonging to Kofi Kora Asare, and which she alleged was given to the plaintiffs, were indeed his self-acquired properties.
The plaintiffs did no such thing. When in face of the defendant’s pleading, the plaintiffs felt the need to plead the facts upon which their case was anchored, they, instead of amending their statement of claim to plead the said facts, rather chose to plead same in a Reply. This was manifestly improper, for the facts making the case of a plaintiff must be pleaded in a statement of claim upon which evidence will be led in substantiation. Of the role of the Reply, Azu Crabbe J.A. had this to say in Odoi and Anor. v Hammond 1971 1 GLR 375: “The main purpose of a reply in pleadings is to raise in answer to the defence any matters which must be pleaded by way of confession and avoidance, or to make any admissions which the plaintiff may consider it proper to make … The plaintiff may allege new facts in his reply in support of the case pleaded in his statement of claim, but he is not permitted to set up in his reply a new claim or cause of action which is not raised either in the writ or the statement of claim except by way of amendment.”
But even so (whether or not such was wrongly done), the plaintiffs failed to adduce evidence in support of the matters they pleaded in the said Reply. The matters pleaded in the Reply included that their father’s brother Kwadwo Asare alleged to be owner of the farm at Afiafiso was not in a position to acquire land but had allegedly been a dependant of the plaintiff’s father at some point; that there were in fact two farmlands at Tumfa Road, one belonging to Opanin Kwame Dapaa who was said to have been succeeded by Kofi Kora Asare, and the other belonging to the plaintiffs’ father; that an attempt was made to have these matters settled by Legal Aid, and that the said intervention by Legal Aid had led to the family giving one half of the Tumfa Road farm to the family, and the other half to the plaintiffs; that the plaintiff cultivated cocoa and food crops in her father’s lifetime and continued after his death until the defendant forcibly entered the farm at Sraha. That That Kofi Kora Asare built House No. A11, Akakom, and accommodated his mother Dansoa thereat until her death.
Regrettably, no evidence was led by the plaintiff to establish any of these matters, which were necessary to demonstrate that the properties claimed by the plaintiffs were indeed self-acquired properties of their father. The plaintiffs bore the burden of proving what they asserted: that their father Kofi Kora Asare died possessed of the named farmlands: Camp, Sraha, Afiefiso, Tumfa Road, and that they had been given to them by the customary successor of their father. That fact of Kofi Kora Asare’s ownership, upon which the case of distribution to his children was made, was crucial and ought to have been established by cogent evidence. Instead, the plaintiffs called their uncle and head of their mother’s family to testify about the alleged gifting of the properties identified by the plaintiffs in the instant suit, to them and the aseda that was allegedly given. As aforesaid, the defendant denied the said gifting of the said properties, or that aseda had been given by the plain tiffs for the said claimed properties, but stated that the plaintiffs were on that occasion, given farmlands at Camp and Mirehuaso which were the self-acquired properties of their father.
The plaintiff who testified that she was forty-five years old at the time of giving evidence, failed to call traditional evidence in support of her contention that her father had acquired the land in their virgin state as she alleged. This was in contrast to the defendant’s case, and the evidence led in that regard. It was the defendant’s consistent evidence, that the plaintiffs’ father as customary successor of members of his family, held the disputed lands not as his own self-acquired property, but as family properties of which he was caretaker.
The plaintiffs’ burden of proving what they alleged: that they were given farmlands at Tumfa Road, Sraha, Afifieso, and Camp being self-acquired properties of their father, included the burden of producing sufficient evidence to avoid a ruling against them on that issue, see: S. 11(1) Evidence Act, 1975 NRCD 323, and the burden of the persuasion which required them to establish “a requisite degree of belief” concerning the said matters, by proof of the existence of the said facts on the preponderance of the probabilities, see S. 10 of the Evidence Act (supra). For these, they were required to adduce evidence to establish on the preponderance of the probabilities, their father’s root of title - mode of acquisition, and acts of possession over a long period. These would have supplied the evidence of the ownership by the father of the plaintiffs, of the said farmlands at the time of his death, see: Mondial Veneer Gh Ltd v Amuah Gyebu XV  1 SCGLR 468; also Abbey and Ors v Antwi  SCGLR 17.
Yet in this adventure, although the first plaintiff named boundary owners of the disputed farmlands at Tumfa Road, Afifieso, Camp, and Sraha, she failed to call the named boundary owners to establish that the plaintiffs’ father was indeed the one who broke the virgin forest thereof, a matter the plaintiffs had alleged in pleading.
The plaintiffs failed to do this in the face of the stiff challenge mounted by the defendant, and the defendant’s contrary evidence regarding the various persons who worked on the farmlands in dispute before they passed on to Kofi Kora Asare, their late father as successor to the said members of his family. The plaintiffs alleged that the issue of the Tumfa farm had been settled in an intervention by an officer of Legal Aid in their favour. This was contrary to the defendant’s assertion that the Legal Aid officer had in fact been satisfied with the distribution done by the defendant’s family which did not include giving the three lands in contention to the plaintiffs. The plaintiffs however failed to call the office of Legal Aid, as a material witness to support their allegation. The defendant’s assertion also in respect of the Sraha farmland, that the plaintiffs’ mother’s continued presence thereat until her death was with the permission of the defendant’s family, was not countered by contrary evidence of the right of the said matriarch to the said farm.
In our judgment, for the plaintiffs to establish what they alleged on the requisite standard of proof on the preponderance of the probabilities: that the said four farms were all the self-acquired properties of their late father, and that same were given to them by the customary successor, which gifts were sealed with the provision of aseda, they had to adduce sufficient evidence to lead the tribunal of fact to the conclusion that what they alleged was more probable than not. This they failed to do, for all they did was for the first plaintiff to merely repeat in the witness box, what was alleged in pleading. As aforesaid, no evidence of acquisition of the lands, their use, transcending the time their father became successor to members of his own family, or the evidence of Afua Nkrumah or other person who had allegedly received the aseda, was adduced in support of the plaintiffs’ case, see: Majolagbe v. Larbi and Ors  GLR 190
On the whole, the quality of the evidence adduced by the plaintiffs in proof of their claim, that the three named properties apart from Camp: Sraha, Afifieso, and Tumfa Road, were the self-acquired properties of their father, and that they had been given same as their portion of the inheritance, was poor indeed. In our judgment, the plaintiffs’ case was not proven on the requisite standard of the preponderance of the probabilities.
On the other hand, the defendant’s case was grounded on the fact that of the four lands in dispute herein, only Camp was given to the plaintiffs, as the rest were family property by reason of the fact that Kofi Kora Asare was customary successor to two of his siblings and three other persons. In this regard, the defendant gave traditional evidence recounting the history of each of the farmlands.
Regarding the Sraha farmland, the defendant testified that it was acquired by Nana Kissiwa who cultivated plantain, cocoyam and cassava thereon with her children; that she was succeeded by her daughter Dansoa, that Dansoa’s successor, Akosua Omane was succeeded by the plaintiffs’ father. It was his evidence that even during the lifetime of Akosua Omane, the plaintiffs’ father Kofi Kora Asare worked on that farm started by his grandmother Kissiwa from about 1976 when Dansoa his mother died, until his death in 1994. The defendant alleged that although Kofi Kora Asare farmed on the Sraha land, he never claimed it to be his, and never planted permanent crops like cocoa thereat.
According to the defendant, the Afiefiso land was acquired by Kwadwo Asare who broke the virgin forest. He further testified that upon the death of Kwadwo Asare, he was succeeded by Nana Gyekyewaa who was in turn succeeded by the plaintiffs’ father Kofi Kora Asare.
It was the defendant’s evidence that Kofi Kora Asare succeeded to this land more than forty years before his death and that he worked on same cultivating it with his children although he never laid claim to same as his property.
With regard to the Tumfa Road land, it was the defendant’s testimony that it was acquired by Nana Kwame Dapaah who cultivated cocoa and plantain thereat. The said patriarch was succeeded by Nana Kobina Donkor who was later deposed as customary successor. He alleged that the father of the plaintiffs: Kofi Kora Asare was then made successor and succeeded to the farmland but did nothing on it.
This consistent, traditional evidence by the defendant which was not assailed by the lengthy cross-examination that followed, was corroborated by two persons in some material detail. There was DW2: a son of Kwabena Kora Asare who confirmed that during the first anniversary of the death of Kofi Kora Asare, the customary successor Afua Nkrumah shared out properties she had succeeded to, when she succeeded the plaintiff’s father, and that she gave the witness, the plaintiffs, and Adiyiah’s children, their fathers’ self-acquired property to them. DW1, the brother of Kofi Kora Asare, and the head of the defendant’s family, testified in support of the defendant’s case, that the father of the plaintiffs succeeded to the properties of his siblings and family members: Adiyiah, Dapaah, Kwadwo Asare, and Dansoa. He testified further, that he was present at the distribution of properties by the successor of the plaintiffs’ father: Afua Nkrumah, to the plaintiffs, as well as the children of the siblings of Kofi Kora Asare.
It is the said distribution to the plaintiffs, differing in detail from the one alleged by the defendant and his witnesses, that the plaintiff is seeking to enforce by the instant suit. The said witness also corroborated the defendant’s version: that the said customary successor Afua Nkrumah gave to the plaintiffs, the farms at Camp and Mirehuaso, and not the farms claimed by the plaintiff in the suit.
As aforesaid, the plaintiffs bore the burden of proving that the four named properties were acquired by their father and that they had been given a portion of same, as alleged and claimed by the writ of summons and statement of claim. This burden, they woefully failed to discharge, in face of the defendant’s case, that the said properties, were in fact were properties of the defendant’s family. It is manifest from the evidence led, that although Kofi Kora Asare worked on these farmlands with his family for a very long time, in one case, for over forty years, he did so as a customary successor in a fiduciary position, not as owner of the said farmlands.
This is what the learned trial judge found and held to be a fact.
In this appeal, the plaintiffs as appellants who have made the complaint that the judgment is against the weight of the evidence led, have assumed the duty to point out pieces of evidence which were wrongly evaluated by the trial court leading to a wrong conclusion, in that if they had been properly applied in their favour, the conclusion arrived at by the trial judge would have been different see: Djin v Musa Baako [2007-2008] 1 SCGLR 686.
The appellants have failed in this duty, for beyond the general insistence that the plaintiffs led credible evidence and that same was not given due consideration by the learned trial judge who preferred the defendants to the plaintiffs’, no specific complaint was set out to show how the application of certain pieces of evidence would have altered the verdict of the court below.
Instead, the plaintiffs have raised in their submission, the matter of limitation of the action, alleging that the plaintiffs were on the land for fifteen years before the defendant disturbed their quiet possession thereof. This which was not pleaded at the court below, and was therefore not in issue at the court below. It seems to us that the matter of limitation now being raised cannot come into play here when there was no pleading of such at the court below, and no issue was joined with regard thereto. We note that the only matter pleaded by the plaintiffs in answer to the counterclaim, was that the plaintiff lacked the capacity to bring suit against them. That has not been raised as an issue in this appeal.
As aforesaid, we find that the quality of the evidence led by the plaintiffs was not sufficient to sustain the claims before the court below. On the other hand, the traditional evidence led by the defendant, as corroborated by his head of family, and a beneficiary of the distribution of property to the children deceased siblings of the plaintiffs’ father, both in relation to the farmlands and to House No A11 Akakom, was credible, consistent, and sufficient proof of the matters alleged in prosecution of his counterclaim.
We therefore hold that the judgment of the court below is supportable from the evidence led, and ought not to be disturbed.
The appeal is therefore found to have no merit, and is in consequence dismissed.
The judgment of the court below is hereby affirmed.
No order as to costs.
MABEL M. AGYEMANG
(JUSTICE OF THE APPEAL COURT)
K. A. ACQUAYE JA, I agree K. A. ACQUAYE
(JUSTICE OF THE APPEAL COURT)
S. K. GYAN JA, I also agree S. K. GYAN
(JUSTICE OF THE APPEAL COURT)