IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL
ACCRA - A.D 2018
ANATU DAGARTI - (Plaintiff/Respondent)
MUSTAPHA BANDAH - (Defendant/Appellant)
DATE: 1ST MARCH, 2018
SUIT NO: H1/160/2017
JUDGES: MARFUL-SAU J.A. (PRESIDING), ADJEI J.A., MRS SOWAH J.A.
ROBERT PAPPOEL FOR PLAINTIFF/RESPONDENT
MRS. ANGELA QUARDE FOR THE DEFENDANT/APPELLANT
The Circuit Court in Accra on 23rd November, 2015 delivered judgment in the case which has culminated in this appeal. The trial Circuit Court dismissed the Defendant’s counterclaim and entered judgment for the substituted Plaintiff on all the reliefs endorsed on her claim.
The Defendant dissatisfied with the judgment of the trial Circuit Court filed an appeal against same on16th December, 2015. For the purposes of this appeal, the Plaintiff/Respondent shall be referred to as the “Plaintiff” and the Defendant/Appellant as ‘Defendant”.
A cursory look at the facts make them complex and ambiguous but in reality they do not admit no ambiguity. The original Plaintiff in the case sued the original Defendant for an order of injunction and recovery of possession with respect to House Number B234/19 , South Odorkor, Accra. The Plaintiff claimed that he developed his plot into residential accommodation several years before he met the Defendant. As both of them professed the Muslim faith, he took the Defendant as his brother and gave him a portion of the house to occupy as a licencee. The original Defendant on the other hand testified that he acquired the plot, built a portion thereof and permitted the Plaintiff to occupy same as his caretaker. The Defendant testified that he was then living in the Brong Ahafo Region. The trial Circuit Court Judge after having made his findings of facts came to the conclusion that the land was acquired and built by the Plaintiff before he met the Defendant. The trial Circuit Court Judge granted the two reliefs sought by the Plaintiff and dismissed the Defendant’s counterclaim as unproved. The Defendant dissatisfied with the judgment of the trial Circuit Court Judge filed an appeal against the judgment to this Court to rehear the matter and find in his favour. The parties in the course of the trial died and each of them was substituted.
The four grounds of appeal filed against the judgment by the Defendant are as follows:
“a. The Court erred when it held that the Defendant’s land is distinct and different from the Plaintiff’s land when in fact there is enough evidence to the contrary.
b. The Court erred when it held that the Plaintiff, having been in possession of the subject matter in dispute, was entitled to the land even though the Defendant had a superior title to this land.
c. The Court erred when it failed to uphold the Defendant’s counterclaim.
d. The judgment is against the weight of evidence”.
We address ground I of the appeal which is about the identity of the land which the Plaintiff was declared the owner by the trial Circuit Court. The Plaintiff described the land in dispute as house No. B234/19 South Odorkor, Accra. The Plaintiff tendered her tile deed as exhibit ‘B’. It is a deed of gift made between Augustus A. Tibo of Accra as Donor and Karimu Dagarti as Donee. The deed was registered on 17th December, 1983 and covered an area of 0.23 acres. The deed was registered as No. 353/1984. The description of the land was vividly made in paragraph 4 of the Deed. It provides thus:
“The land situate lying and being at ODORKOR SOUTH ACCRA and bounded on the North-West by Donor’s land measuring 100 feet more or less on the South-East by proposed Road measuring 100 feet more or less on the South-West by Donor’s land measuring 100 feet more or less on the North-East by Donor’s Land measuring 100 feet more or less and covering an approximate area of 0.23 acre more or less which piece of land is more particularly delineated on the plan attached hereto and thereon shewn edged pink which shows the relevant measurements”.
The Defendant on the other hand derives title through exhibit ‘3’. It is a conveyance registered with Land Registry No. 2515/1993 made the 3rd day of December, 1965. Even though exhibit ‘3’ was made on 3rd December, 1965, it was registered in 1993 at the Lands Commission. The Defendant’s grantors were Atto Maclean and James Odum Maclean. The schedule attached to exhibit ‘3’ describes the Defendant’s land as follows:
“All that piece or parcel of land situate lying and being at Odorkor in the Accra city in the Accra Region of the Republic of Ghana and bounded on the North by the proposed Road measuring Eighty-five feet (85’-0”) more or less on the South by the vendors’ land measuring eighty-five Feet (85’ 0”) more or less, on the East by the vendors’ property measuring One Hundred and Ten Feet (110’- 0”) more or less and on the West the property of H. Biney and measuring One Hundred and Ten Feet (110’-0”) more or less covering an approximate area of Nought decimal two one four(0.214) acre or howsoever the same may be bounded known and described or distinguished as the same is for purposes of identification but not of limitation delineated on the plan hereto attached and thereof edged pink”.
The land claimed by the Plaintiff on her writ is different from the land counterclaimed by the Defendant. The schedule to the Defendant’s land gives it a different description from that of the Plaintiff; the subject matter in dispute and we find that the land which was originally acquired by the Defendant is clear and distinct from that of the Plaintiff. The general position is that schedule is part of the deed or enactment it is attached to and it is therefore considered as part of the deed. The legal effect of schedule was stated in the English case of Attorney-General v Lamplough 3 EX D 214 that schedule is part of the deed or enactment it is attached to and it is much a part as any other part. We find that the description of the Defendant’s land is different from the Plaintiff in terms of location, size and boundary owners. We hold that the trial Circuit Judge did not err when he found that the Plaintiff’s land is different from the land which the Defendant counterclaimed against the Plaintiff.
We therefore dismiss ground (a) of the appeal as unmeritorious.
We address grounds (b) and (c) of the appeal. The ground (b) of the appeal is that the trial Circuit Court Judge erred when it held that the Plaintiff, having been in possession of the subject matter in dispute was entitled to the land even though the Defendant had a superior title to the land. An appeal is filed to attack a judgment where a factual or legal error has been committed by a Court and the aggrieved party invites an appellate Court which exercises jurisdiction over that court which committed either factual or legal error or both to correct same. It is wrong and misleading for an Appellant to attribute a statement to a court which was not made by that court and expects an appellate court to correct such an unfounded error. The trial Circuit Court Judge did not state in his judgment that even though the property in dispute was legally registered in the name of the Defendant he would declare possessory title in the Plaintiff. The trial Circuit Court Judge found that the Defendant sold his land contained in exhibit ‘3’ to Madam Aba Benyiwaa. The finding of fact made by the trial Circuit Court Judge to the effect that the Defendant transferred his absolute interest in the land contained in exhibit ‘3’ to Madam Aba Benyiwaa is supported by exhibit ‘8’. Paragraph 4 of exhibit’8’, the sale agreement between the original Defendant and Madam Aba Benyiwaa demonstrates that the Defendant transferred his entire 0.21 acre land to Madam Aba Benyiwaa. The land which the Defendant acquired from his grantors is contained in exhibit ‘3’, it covered an area of 0.214 acres. It was same land which the Defendant conveyed to Madam Aba Benyiwaa in exhibit ‘8’ except that 0.004 acre which is an insignificant land and could not be accounted for. We shall reproduce paragraph 4 of exhibit ‘8’ for emphasis. It reads thus:
“The property consists of land situate and lying and being at Odorkor/Accra and bounded on the North by proposed Road measuring 85 feet more or less on the South by Maclean Family measuring 85 feet more or less on the East by Maclean Family land measuring 90 feet more or less on the West by the property of H. Biney’s property measuring 90 feet more or less which said piece of land is more particularly delineated on the plan attached hereto and thereon shewn edged pink which shows the relevant measurements; Area 0.21 of an acre”.
Defendant acquired 0.214 of an acre from his grantors. In exhibit ‘8’ the Defendant sold 0.21 of an acre of the land he acquired through exhibit ‘3’ to Madam Aba Benyiwaa. The size of the Defendant’s land which cannot be accounted for is 0.004 acre of land which is insignificant to accommodate anything. We find and affirm that the original Defendant divested himself of his absolute interest in the land to Madam Aba Benyiwaa. There is therefore no land for the Defendant to file a counterclaim against the Plaintiff. The transaction between the original Defendant and Madam Aba Benyiwaa was a sale transaction and the said Defendant divested himself of his absolute interest in the land. We therefore dismiss grounds (b) and (c) of the appeal as unmeritorious.
We now address ground (d) of the appeal which is to the effect the judgment delivered by the trial Circuit Court Judge is against the weight of evidence on record. The law is that a person who alleges that a judgment is against the weight of evidence on record invites an appellate Court with jurisdiction over the court whose judgment is on appeal to rehear the matter and correct all errors particularly factual, burden of proof and to some extent other jurisdiction and capacity issues and come to the conclusion that the lower court committed a serious error which affected its decision. The old decisions including Brown v Quashigah [2003-2004]SCGLR 930 and Republic vs Central Regional House of Chiefs ex parte Gyan IX Andoh Interested Party [2013-2014]2 SCGLR 845 where it was authoritatively held that no legal issues could be addressed under the omnibus ground, that is, the judgment is against the weight of evidence on record have been departed from by the recent decision of the Superior Courts. The tide began to shift when it was held in Attorney-General vs Faroe Atlantic[2005-2006] SCGLR 277 that some legal issues could be addressed under the omnibus ground of appeal. It has recently been held by the Supreme Court in the case of Owusu-Domena v Amoah [2015-2016]1 SCGLR 790, that other legal issues could be addressed under the omnibus ground of appeal.
We have examined the entire records and we are satisfied that the trial Circuit Court Judge did not commit any factual or legal error which must be corrected by this court. The original Plaintiff acquired the land with his own resources, built same and permitted the original Defendant to occupy a portion of it as his licencee. The Defendant also failed to demonstrate the errors committed by the trial Circuit Court Judge in his judgment and must be corrected by this court. The general principle of law is that a burden is on a person who alleges that a judgment is against the weight of evidence to demonstrate to the appellate court the error in the judgment which must be corrected and corrected, it must overturn the judgment. However, nothing prevents an appellate court to correct errors committed in a judgment of a lower court but the only proviso is that where such an issue is raised and it is answerable, the Court must hear he parties on it. Where the issue raised is wholly unanswerable, the appellate court may proceed to hear it without giving the parties the opportunity to be heard. In the case in point, the Appellant failed to demonstrate any error committed by the trial Circuit Court Judge and we too did not find any. The ground (d) of the appeal also fails.
We dismiss the appeal in its entirety and affirm the judgment of the trial Circuit Court delivered on 23rd November, 2015.
JUSTICE OF APPEAL
MARFUL-SAU,J.A I agree SAMUEL MARFUL-SAU
JUSTICE OF APPEAL
SOWAH,J.A I also agree CECILIA SOWAH
JUSTICE OF APPEAL