IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL
ACCRA - A.D 2018
ANYETEY CHANTEY - (Plaintiff/Respondent)
TEI KWABLAH KWEINOR - (Defendant/Appellant)
DATE: 31 ST MAY, 2018
CIVIL APPEAL SUIT NO: H1/67/2017
JUDGES: KUSI-APPIAH J.A. (PRESIDING), AYEBI J.A., SOWAH J.A.
MR. JAMES ENU FOR DEFENDANT/APPELLANT
MR. ANTWI ABANKWA FOR PLAINTIFF/RESPONDENT
The simple issue in this appeal is the factual one of determining whether the plaintiff’s family (now Respondent) or the defendant’s family (the Appellant herein) is the rightful owner of the disputed land.
In my view, that issue was elaborately pleaded and adequately canvassed at the trial to obviate any blurring of it. I turn first to the pleadings. In paragraphs 1, 3, 4, 5, 6 and 7 of the amended statement of claim, the plaintiff alleged that the defendants were their licensees and were permitted to live on the land in dispute only as long as they continue to acknowledge the title of the plaintiff’s family.
It is the case of the plaintiff that he is presently the Head of Anyetey Kwablah family of Ningo following Anyetey Kwablah who succeeded their father Nartey Asamoah. That the disputed land was originally discovered by the plaintiff’s ancestor by name Nartey Asamoah long ago and he and his descendants have been the owners in possession of the land described in the schedule in uninterrupted occupation for several generations. He averred that the defendant is a descendant of Tei Kwablah Forzi who and others were allowed by the grandfather of the plaintiff Nartey Asamoah to settle on a portion of the plaintiff’s land at Zubanyatey.
According to the plaintiff, the Forzi family of which Tei Kwablah Forzi, defendant’s father and others form part were staying at Tekpenya where their father and or grandfather was a licensee of a certain family, Ameoda family. That the Forzi family challenged the title to the land of the family licensor. The Ameoda family sued Kudadzi Forzi as the successor of Forzi. The Ameoda family won the case and evicted the Forzi family (led by the said Kudadzi Forzi) from the land at Tekpenya. When the defendant’s family was allegedly evicted from Tekpenya they approached Nartey Asamoah, the chief of Kopodor for a place to stay and farm. The plaintiff contended that Nartey Asamoah obliged and granted them a piece of land at Zubanyatey on condition that they acknowledge the title of plaintiff’s family by annually offering fowls and some drinks when the chief was performing the festival of his deity, Obunyuku.
The plaintiff claimed that the defendant’s predecessors observed this condition until recently when the defendant rebelled and laid adverse claim to the land.
On 13th May, 2014, the plaintiff therefore brought an action against the defendant for the following reliefs:
“(a) Declaration that the land described in the schedule in the statement of claim belongs to the Anyetey Kwablah family of Kopodor near Ningo and that the defendant and the other members of the Tei Kwablah family were allowed to settled with them.
(b) Perpetual injunction restraining the Tei Kwablah family especially the defendant, from making any claim to the land to which they were admitted as mere settlers.
(c) Damages for making unlawful claim and for harassing other members of the plaintiff’s family.
An order of recovery of all portions of Kopodor land which descendants of Forzi’s children, i.e. Kwettey Forzi, Mauna Forzi, Tei Kwablah Forzi, Kudadzi Forzi and the only daughter of Forzi are occupying.”
The defendant resisted the plaintiff’s claim. By paragraphs 2, 2A, 3 and 4 of the amended statement of defence, the defendant says that he is defending the suit in his capacity as the Head of Tei Kwablah gait (section) but not the overall Forzi family. He denies that the subject land is situate at Kopodor or Zubanyatey under Kopodor but at Tekpenya.
The gravamen of the defendant’s defence is that the plaintiff’s family occupy part of his family land as licensees, their forefather Nartey Asamoah, having been placed on the land by Ashalley Botwe, a member of defendant’s family. It is the defendant’s case that the subject property was acquired by his forefathers and they have been in possession and occupation of the disputed land for the past 300 years. That they have established villages on the land and cultivated same. He claimed that they have a 33-bedroom house, a dam and structures for their shrines on the land.
The defendant controverted most of the allegations both in the pleadings and evidence led at the trial by the plaintiff. He averred that they have also exercised various acts of ownership, including granting parts of the land to other people and preventing trespassers, including the plaintiff from encroaching on the land. The defendant therefore counterclaimed against the plaintiff as follows:
“(1) A declaration of title to all that piece or parcel of land situate and lying at Tekpenya bounded on the North by the Tema Aflao Motorway measuring approximately 22,931.2 feet more or less, or to East by LakplekuOsabunya family lands measuring approximately 10,809.7 feet more or less, on the West by the Prampram Traditional lands measuring 21,564.4 feet more or less, on the South-East by the Dzange Lagoon measuring 3,675.2 feet or more which piece or parcel of land encompasses an approximate area of 9,404.28 acres.
(2) A declaration that the defendant and his family are the rightful owners of the land in dispute.
(3) Perpetual injunction restraining the plaintiff, his agents, assigns, workmen, person or group of persons claiming through him whether directly or indirectly.
(4) Damages for trespass.
(5) Cost inclusive of legal fees.”
The learned trial judge after hearing evidence from the parties dismissed the defendant’scounterclaim and entered judgment for the plaintiff and granted all the reliefs sought by him. Against this decision, the defendants have appealed. The grounds of appeal as contained on the notice filed on 21st August, 2015 were as follows:
“(a) The judgment is against the weight of evidence.
(b) That the trial court erred when it failed to take full cognisance of the evidence adduced at the trial.
(c) That the trial court failed to determine the real issues in controversy based on the oral and documentary evidence before it on the issue of ownership of the land and size/extent of the land.”
Three grounds of appeal were filed by (appellant) defendant but to us the omnibus ground that the judgment is against the weight of evidence encompasses all the three grounds of appeal. The omnibus ground is essentially complaining that the trial judge’s findings and conclusions which were predicated on the facts listed by learned counsel for the appellant in his written submissions are not supported by the evidence on record.
JUDGMENT AGAINST THE WEIGHT OF EVIDENCE
I propose to take grounds 1, 2 and 3 together on the usual omnibus ground of appeal to wit: the judgment is against the weight of evidence, as they deal in the main with the issues essentially as one. In these grounds, counsel raised two key points, namely:
(1) Whether the plaintiff succeeded in proving his title to the disputed land. Put differently, was the plaintiff able to discharge the burden of proof on the disputed land?
(2) Whether the plaintiff not being a party or privy to any of the parties in the consolidated case (Ameoda vrs. Pordier and Ameoda vrs. Forzi & Others)  G.L.R. 479, C.A.,can succeed on the plea of res judicata.
This appeal is basically premised upon the contention that the judgment is against the weight of evidence, which is a call on us to rehear the appeal by analysing the record of appeal before us, taking into account the testimonies and documentary as well as any other evidence adduced at the trial and arriving at a conclusion one way or the other. This is the import of the numerous decisions of the courts on the point. Notable among these are: Tuakwa vrs. Bosom [2001-2002] S.C.G.L.R. 61; Djin vrs. Musah [2007-2008] 1 S.C.G.L.R. 686; Oppong Kofi vrs. Attibrukusu III  S.C.G.L.R. 176.
In Akuffo Addo vrs. Catheline  1 G.L.R. 377 at 379 holding 3, the Supreme Court held that:
“When an appellant exercised the right vested in him and appealed on the ground that judgment was against the weight of evidence, the appellate court had jurisdiction to examine the totality of the evidence before it and come to its own decision on the admitted and undisputed facts.”
Again in Djin (supra) case, the Supreme Court per Aninakwa JSC. (of blessed memory) at page 691 of the report said:
“Where an appellant complains that a judgment is against the weight of evidence, he is implying that there were certain pieces of evidence on the record which, if applied in his favour could have changed the decision in his favour, or certain pieces of evidence have been wrongly applied against him. The onus is on such an appellant to clearly and properly demonstrate to the appellate court the lapses in the judgment being appealed against.”
In this appeal, the only central issue urged under the omnibus ground of appeal is between the plaintiff’s family and the defendant’s family who owns the land in dispute or who is the true and legal owner of the subject property. I have found that a resolution of the above issue would completely and effectively resolve the issue(s) raised in this appeal.
For me, that central question resolves itself, at the bottom, to one of fact. Simply put, the grounds of appeal were essentially based on matters of fact. The law on dealing with the findings of fact made by a trial judge is that an appellate court ought not disturb the findings of the trial court unless they are wholly unsupportable by the evidence. See the case of Honterstroom vrs. Sagoporacis  A.C. 37, Re Yendi Skin Affairs (No.2) [1984-86] 2 G.L.R. 239 at 254.
In such matters, the Court of Appeal has to respect the opinion of the trial court as much as possible since that court has the advantage of seeing and hearing the witness give their testimony. But at the same time the Court of Appeal is allowed to draw the necessary inferences from the proven facts and thereby arrive at its own conclusion.
Arguing grounds 1 and 3 together, counsel for the defendant (appellant), Mr. James Enu submitted that the trial judge failed to properly evaluate the evidence of defendant. He contended that the defendant testified as to how his family came to acquire the disputed land. Counsel argued that the defendant representative/Attorney gave clear and unequivocal evidence at the trial that the disputed land was acquired by his forefathers through settlement over 300 years ago. That they have exercised ownership over the subject property by rearing of cattle and farming food crops thereon. The defendant also testified that they had established settlements or villages on portion of the land and had built a large dam and also had eight (8) shrines in some of the villages on the land.Counsel further submitted that the defendant also led evidence to show how licence was granted to Nartey Asamoah (plaintiff’s grandfather) through Ashalley Botwe on portion of theirland. The result is that the plaintiff and his forefathers were mere licensees to the defendant’s family on the disputed land.
Learned counsel referred to the Court of Appeal case of Nyikplorkpo vrs. Agbodotor [1987-88] 1 G.L.R. 165 holding 3 and argued that since the claim was for a declaration of title and the ancillary relief of injunction, the plaintiff was, irrespective of the state of pleadings enjoined to prove:
i. Positively the identity of the subject-matter,
ii. Establish all boundaries.
Counsel however contended that the plaintiff land as pleaded was completely different from his land as described in his evidence. He further submitted that the evidence of the plaintiff and his witnesses, Pw1 and Pw2 describing the land owned by the plaintiff’s family was so contradictory and substantially different and unrelated to the land claimed by the plaintiff described in the schedule in his statement of claim.In that regard, counsel for the defendant claimed that the plaintiff failed to prove the identity of the land in question. He therefore concluded that the trial court was wrong in coming to the conclusion that the plaintiff has been able to identify the disputed land.
Next, it was submitted by counsel for the defendant that the High Court failed to address the substantial point in the trial, namely, whether or not the plaintiff and his family were let into possession of the disputed land as licensees by the defendant’s family. And if so, whether or not a licensee’s long possession of land would cloth him with title. The contention was that had the trial High Court properly evaluated the evidence of the defendant, it would have concluded the case in the defendant’s favour.
In deciding which of the parties herein owns the disputed land, this court needs to determine the parties’ respective family interest in the subject property. Here, four issues appear to be at the heart of this case. They are:
(a) Whether the identity of the land was in dispute;
(b) Whether the plaintiff led sufficient evidence to prove his claim for ownership of the disputed land i.e. whether defendants are licensees to the plaintiff’s family;
(c) Whether on the facts of this case, the defendant has succeeded in establishing that the plaintiff and his family were let into possession of the disputed land as licensee by the defendant’s family;
(d) Whether a licensee’s long possession of land clothe him with title.
THE IDENTITY OF THE LAND IN DISPUTE
The basic issue herein is whether the plaintiff succeeded in proving the identity of the disputed land. Put differently, was the identity of the subject property between the parties in dispute?
The parties in this case were positive in their evidence that the disputed land, situate and lying at Ningo is their family land. While the plaintiff’s claim that his family’s land is at a place called Kupodor in Ningo, part of which was given to the defendant’s family which they named Zugbanyatey, the defendant contended otherwise.The defendant insisted that his family are and have always been on Tekpenya land in Ningo. He claimed that the area the plaintiff occupy and call it Kupodor was granted them by his family.
At page 218, lines 5 to 10 of the record, the plaintiff described his land as follows:
“At the northern part we share a common boundary with Mankralowe Kapiagomenya, at the Sourthern part, Nmgedor Mahe, South-East is Nyahe Lagoon, at the Eastern part is the jafoe stream, at the East-North is Osabunya family, then West, Mutso Prampram. These are the boundaries. The land covers approximately 6,200 acres.”
The fact that both the plaintiff and defendant laid claim to the same land which both of them claim they obtained from their ancestors through settlement was also not in dispute. On the issue of whether the plaintiff succeeded in proving the identity of the disputed land, it appears to me that the position taken by the trial judge was that on the peculiar facts of the case (i.e. proving the identity of the subject-matter as well as establishing all boundaries), the identity of the land was not in dispute.
This explains why the trial judge delivered himself in paragraph 120 of his judgment at page 430 of the record as follows:
“It will appear that aside the name of the location(s) of the subject land(s) the parties in the claim and counterclaim are claiming the same piece of land.”
I am in agreement with the learned trial Judge that the identity of the subject-matter was not in dispute. Indeed, paragraphs 2 to 9 of the amended claim were specifically answered by paragraphs 2, 3, 4, 5, 6, 7, 8, 9 and 10 of the amended defence. And the clear implication is that the plaintiff and the defendant were “ad idem”as to the identity of the land in dispute.
In any case, the evidence-in-chief of the defendant during the trial clearly identified the land in dispute and put it beyond controversy. At page 296 lines 1 to 12 of the record, this is what the defendant’s representative said:
“The plaintiff in this case and their family are living on our land. One Mankralo, from Manya Yumu Ashalley Botwe got married to our father’s mother by name Maku… Ashalley Botwe livedon the land before in 1874 he went for war and on his return, he came with Asamoah to live on the land with him and that is how come they are living on our land.”
The general principle enunciated in Anane vrs. Donkor and Kwarteng vrs. Donkor (consolidated)
 G.L.R. 188 at 192 S.C. states that:
“A claim for declaration of title or an order for injunction must always fail, if the plaintiff fails to establish positively the identity of the land claimed with the land, the subject-matter of his suit,” is sound law but applicable only in appropriate cases.
In this case, although the plaintiff’s description of the land in dispute as evidenced in Exhibits C and 1 differed slightly, I think that the principle enunciated at Donkor’s(supra) case is inapplicable as the identity or boundaries of the land claimed herein is undisputable. See Agbosu vrs. Kotey [2003-2005] 1 G.L.R. 685 S.C. holding 4.I must say that the evidence in-chief of the defendant through his Attorney or representative is a clear indication that what the defendant was disputing was not the identity of the land as fully and extensively described per the schedule or attachment but the plaintiff’s claim to ownership.
I am strengthened on this resolution bythe West Africa Court of Appeal case of Okpareke vrs. Egbuoho, 7 W.A.C.A. p.53. In that case, the trial court had found against the appellant on the ground that he had not described his land with sufficient particularity. On appeal, the court held, reversing the judgment of the curt below, that:
“The identity was one of agreed fact inthis case. It was agreed upon by both parties in the pleadings, and since one of the objects of pleadings is to shorten proceedings by ascertaining what facts are agreed so that evidence need not be led to proof them, the court should have accepted this agreed facts as established. See also the case of Sah vrs. Darku [1987-88] 1 G.L.R. 123 C.A.”
Guided by this authority, I find that the identity of the disputed land was one of agreed fact. It was agreed upon by both parties in their evidence at the trial. Consequently, the trial court was bound by law to accept this agreed fact as established without any proof.
THE LAW OF LICENCE
The next issue to consider is which of the parties herein owns the disputed land. But before that I propose to examine briefly the law on licence. Section 139 of the Land Title Registration Law, 1986 (P.N.D.C.L. 152) defines a licence as follows:
“a permission given by a proprietor of land or an interest in land which allows the licensee to do certain acts in relation to the land which would otherwise be a trespass.”
It is trite law that a licence creates no proprietary interest in land. It is revocable at the will of the licensor. A bare licence has been described by the learned authors of Ghana Land Law and Conveyance B.J. da Rocha and C.H.K. Lodoh at page 164 as one which is not supported by any contract or consideration. At page 165 of the same book, stated above, the learned authors stated that a licensee had no tittle or interest in land to transmit to his successor in title.The learned authorswent on to state further at page 86 that under customary law, a stranger licensee continues his possession of the land and the enjoyment of the particular grant to him so long as he continues to recognise the title of his grantor.In effect, it needs not be over-emphasised that a licensee remains as such and enjoys his possession of the land at the pleasure of the licensor. The foregoing briefly represents the law and practice on licence that we must apply in this case.
Let me now consider submissions by both counsel to resolve the issue of which of the parties and their respective families were let into possession of the disputed land as licensees. While the defendant(s) affirmed that they let the plaintiff and his family into possession of the disputed land as licensees, the plaintiff contended otherwise. He insisted that his family rather let the defendant and his family into possession of the disputed land as their licensees.
The crucial question is: Was there any evidence of the creation of licence in this case? This brings me to the evaluation of the evidence. Both parties in their attempt to prove their respective family’s ownership of the subject property at the trial traded in traditional history, claiming that the disputedland was acquired by their respective ancestors through settlement.
The plaintiff testified as to how his family came to acquire the disputed land. In his evidence in-chief, the spokesman of the plaintiff said categorically that his grandfather, Nartey Asamoah who was the founder of the family at Kopodor, acquired the land long ago and he and his descendants have been in uninterrupted occupation and possession for several generations. The plaintiff was emphatic in his evidence that his family has been owners of Kopodor lands since time immemorial. The plaintiff tendered a document (Exhibit A) to show that even in 1928-29,the Government had recognised his ancestor (Nene Nartey Asamoah) as the Nokotoma (Odikro), head of the village community of Kopodor.
According to the record of appeal, this piece of evidence where the Colonial Government listed Nartey Asamoah the plaintiff’s predecessor as the Chief of Kopodor was not challenged by the defendant. There is evidence on record that the plaintiff further went on to show how the licence was created or granted to the defendant and his family. The plaintiff testified that as owners of Kopodor lands, his forefather Nartey Asamoah permitted the Forzi family (i.e. defendant’s family) to live on the land as licensees when they were evicted from Tekpenya by Ameoda family. In effect, the plaintiff’s evidence was that the defendant’s ancestors were let on the land by the leave and licence of the owners, that is, plaintiff’s forefather(s).
Now the plaintiff having adduced sufficient evidence to establish his case (that his ancestors originally acquired the subject property through settlement and let defendant’s family on the land as licensees) as required by Section 14 of the Evidence Act, 1975 (N.R.C.D. 323), the burden of producing evidence in rebuttal would shift to the defendant.
Besides, the defendant as a counterclaimant before the trial court assumes the same burden that a plaintiff in the substantive writ had if he is to succeed. This is because by the rules of court, a counterclaim constitutes a separate and distinct claim on its own to be substantiated by the same standard prescribed by the combined effect of Sections 11 and 14 of the Evidence Act, supra.
Contrary to the plaintiff’s case, the defendant/appellant contends that his forefathers Tei Kwablah Forzie family acquired the land in dispute through settlement over 300 years ago and established 27 settlements therein. That they have been rearing and farming food crops ever since and constructed a very large dam which serves as the main source of water to the inhabitant of old Ningo and its surrounding villages till now.
Both parties rely on traditional evidence that is, original settlement by their respective ancestors as their root of title to the land. The position of the law is that where traditional evidence had a part to play in actions for declaration of title, the authorities require that the traditional evidence had to be weighed along with recent facts to see which of the two rival stories appeared more probable, that is, facts established by matters and events within living memory, especially evidence of facts of exercise of ownership and possession must take precedence over mere traditional evidence. See In Re Kodie Stool, Adowaa vrs. Osei [1998-99] S.C.G.L.R. 23; Ago Sai & Ors. vrs. Kpobi Tetteh III  S.C.G.L.R 762; Adjeibi-Kojo vrs. Bonsie  3 W.A.L.R. 257.
A critical examination of the evidence on record show that the plaintiff led cogent and credible evidence to show how his forefathers led by Nartey Asamoah, who was the chief of Kopodor, whose position was acknowledged by the Colonial Government in Exhibit A took effective possession of same went on to show how his forefathers permitted the defendant’s family to live on portions of the land as licensees. His evidence was corroborated in material particular by witnesses (Pw1, Pw2, Pw3 and Pw4) and documentary proof, that is, Exhibit A and B. Exhibit B is the judgment in Ameoda vrs. Pordier and Ameoda vrs. Kudadzi Forzi case (supra) which shows the eviction of the Forzi descendants from Tekpenya in 1967.
The evidence of Kuduadzi Addo (Pw2) who is a principal member of the defendant’s family was unequivocal that the Forzi’s were actually evicted from Tekpanya and settled on land granted them by Nartey Asamoah which they named Zugbanyatey. He contended that the Forzi’s cannot therefore pretend to be still living at Tekpanya after being ejected from the same place in the 1960’s. Pw3 Mensah Akweley who claimed to be 100 years old and share common boundary to the West with the plaintiff on the subject property, was emphatic that he has been farming on the land for a very long time and as personal knowledge the plaintiff and his family are the owners of the land in dispute. Besides, the Pw4 also confirmed sharing common boundary with the plaintiff on the South-East of the land in dispute.
It is pertinent to note that throughout the trial of this case before the court below, the plaintiff(now respondent) not only controverted the defendant on the issue of acquisition of the subject property but also vehemently disputed and contested appellant’s assertion that his family own the disputed land and that the plaintiff’s family are licensees to them. In such situation, the defendant (counterclaimant) ought to lead cogent and admissible evidence to vindicate his assertion that his family are the rightful owner of the subject property.However, a careful examination of the evidence of the defendant indicates that he came to repeat his pleadings on oath without more. The law frowns upon proof of evidence by a party repeating her pleadings on oath without more as same is settled in cases like Majologbe vrs. Larbi & Ors  G.L.R. 190, 195 S.C. and Zabrama vrs. Segbedzi  2 G.L.R. 221 C.A.
I must say that apart from the bare assertion of the defendant (now appellant) that his forefathers acquired the land in dispute through settlement and claim to have established 27 settlements, he did not call any adjoining owner(s) to support his contention. Neither did the defendant call any witness to show that the defendant’s family acquired the subject property though original settlement and created or granted licence to the plaintiff’s family.
The defendant called two witnesses, namely: Nene Charwey Wono (Dw1) and Manasey Yaw, Zutam (Dw2). But their evidence was of no probative value in resolving the issues before the court. Essentially, the evidence of Dw1 and Dw2 were that they came annually at the invitation of the defendant to perform rituals for his shrines. But performance of rituals for shrines or possession of shrines or fetish per se is no evidence that a person owns the land.
In any case, this extract from the cross-examination of Dw2 by counsel for the plaintiff at page 331 of the record of appeal is revealing:
“Q. Do you know that since 200 years that Asamoah people have been on the land no defendant has ever challenged the presence of Asamoah and his people on the land?
A. Yes that is so.”
From the above quotation, this witness, Dw2’s evidence corroborated the claim of the plaintiff that his family own the subject property as they have been on the said land over 200 years without any let or hindrance from the defendant and his family. Indeed, Dw2’s evidence contradicts sharply the defendant’s claim that he and his family own the land in dispute and as owners permitted the plaintiff and his family to live and work on the said land as licensees. The question now is: Should the (corroborated) case of the plaintiff that his forefathers own the land in dispute and as owners let the defendant’s family on the land as licensees not preferred to the defendant’s uncorroborated evidence on the authority of Asante vrs. Bogyabi  G.L.R. 232 S.C. andBanahene vrs. Adinkra  1 G.L.R. 346 at 350 C.A.?In the instant case, the overall effect of the evidence of Dw2, a witness for the defendant rendered the defendant’s case less weighty or simply incredible on the issue of ownership of the land in dispute.
The defendant in his evidence-in-chief stated that he and his family have established 27 settlement/communities in the subject property as an act of ownership. Under cross-examination by counsel for the plaintiff, the defendant said at page 308 of the record of appeal as follows:
“Q. I put it to you that there are no structures on the land. Whether cottages or whatever?
A. I disagree…
Q. So if we go there now will we see the structures there?
A. If you go now you would not seethe structures but remnants that will prove that there were structures there.”
From the foregoing discourse, the defendant’s position that his family have established 27 settlements/communities on the land in dispute as an act of ownership becomes doubtful and unsubstantiated.
Worse still, the failure of the defendant to explain why his forefathers were in possession of the disputed land at Tekpenya as owners for over 300 years, yet the entire Forzi family were first driven out of Akwiem and granted licence by the Ameoda family over the same land at Tekpenya and later (the Forzi’s family were) evicted from the same (Tekpenya) land by the Ameoda family in the 1960’s, makes the claim of the defendant as owner of the disputed land very doubtful. The contention is that if the defendant’s forefathers/predecessors owned the Tekpenya land, the Forzi family would not have been granted licence over the same land by the Ameoda family and evicted thereafter.
In a civil trial, the standard of proof required is that of a balance of probabilities. In assessing the balance of probabilities all the evidence be it that of the plaintiff or defendant must be considered and the party in whose favour the balance tilts is the person whose case is the more probable of the rival version and is deserving of a favourable verdict. See Takoradi Flour Mill vrs. Samir Faris [2005-2006] S.C.G.L.R. 882 at p.899 holding 4.
In this case, the evidence is clear on the balance of probabilities that the plaintiff’s version of the acquisition of the subject property by his forefathers through settlement is more probable than that of the defendant. I would not describe the evidence adduced by the defendant and his witnesses, that is, the bare assertion (that his forefathers acquired the land in dispute through settlement and let the plaintiff’s family on the land as licensees) as sufficient in law to rebut the cogent and credible evidence of the plaintiff that he and his family are the owners of the disputed land.
In the premises it is obvious that the trial judge did not err when he held that the plaintiff’s forefathers led by Nartey Asamoah acquired the land in dispute through settlement generations ago. And as owners of the land the plaintiff’s family permitted the defendant’s family to live and work on the land as licensees when the Forzi family including the plaintiff’s forefathers were evicted from Tekpanya by the Ameoda family in the 1960’s.
DOES A LICENSEE’S LONG POSSESSION OF LAND CLOTHE HIM WITH TITLE?
Next to consider is whether a licensee’s long possession of land clothe him with title. Faced with a similar question, Taylor J.S.C. in the case of Saaka vrs. Dahali [1984-86] 2 G.L.R. 774 C.A. holding 1, stated the position of the law in the following words:
“Long possession per se did not avail the possessor against a claimant, if the claimant was the true owner or could show that he or she derived title from the true owner. On the evidence, the interest held by the respondent in the disputed house was as licensees who had enjoyed undisturbed possession for admittedly many years. But as licensees under customary law they did not by virtue of their long user per se acquired an interest in the property which would entitle them to deprive the owner or his successor of their ownership.”
In this case, there is evidence on record that the defendant’s predecessors/ forefathers lived and farmed on the land only as licensees and by virtue of the law above discussed, his family’s long and undisturbed possession of the land in dispute could neither clothe him nor his family with title.Until there is a clear evidence of the licensor divesting himself of title and vesting same in the licensee, the licensee’s number of years on the land does not confer title on him. They remained licensees on the land. Grounds 1 and 3 fail and should be dismissed.
ESTOPPEL BY RES JUDICATA
The second point raised under the omnibus ground of appeal was that the High Court wrongly held that the judgment in Ameoda vrs. Pordier and Ameoda vrs. Forzi consolidated case (supra), Exhibit B, served asestoppel by res judicata in the instant case.The defendant’s case under this ground of appeal is essentially a strong criticism of the manner in which the learned trial judge misapplied the judgment in Ameoda case against the defendant herein.
Learned counsel for the defendant submitted that the plaintiff who alleges estoppel which is denied by the defendant per his pleadings, was not a party to the suit inAmeoda vrs. Pordier and Forzi (consolidated) case. Neither were the plaintiff’s predecessors a party to the said case. He argued that the land in Ameoda case is separate and distinct from the present case. Counsel therefore concluded that the plaintiff cannot succeed in a plea of estoppel as he and his forefathers were neither parties nor privies to any of the parties in the Ameoda case.
This brings me to the issue on the effect of judgments on strangers. In his book, A Treatise on the Law of Evidence (11th ed.)the learned author, Taylor at page 1144 paragraph 1182 had this to say on the effect of judgments on strangers:
“Judgments inter pares, or as they are sometimes called, judgments in personam, are not, with one exception-admissible, either for or against strangers in proof of the facts adjudicated. They are not admissible against them, because it is an obvious principle of justice that no man ought to be bound by proceedings to which he was a stranger, and over the conduct of which he could, therefore, have exercised no control, or to express the same sentiments in technical language, res inter alios acta alter: nocere non debent.”
(The common law doctrine holding that a contract cannot unfavourably affect the rights of a person who is not a party to the contract).
The position of the law is that no court has jurisdiction to give a judgment ororder that binds a stranger to the suit. That order will be void because it is against the basic principles of natural justice. Such judgments are admissible againstprivies, but that only means that they are admissible as evidence against the privies, in a subsequent action. They are not admissible or enforceable against them in the first action to which they are, ex hypothesi, not parties.
Guided by the principle of law quoted from Taylor’s Treatise on the Law Evidence supra, I hold that judgments in personam are inadmissible either for or against strangers in proof of facts adjudicated. The pertinent question now is: Can the plaintiff who is a stranger and not privy to any of the parties in Ameoda case succeed on a plea of estoppel per rem judicatam?Indeed, evidence on record indicates that the plaintiff and his forefathers were not parties to the dispute in Ameoda case which terminated in favour of Ameoda family against the Forzi family, the defendants ancestors/predecessors.However, since it has been established in this case that the defendant’s predecessors/ancestors including the defendant’s father were parties to the Ameoda land case, it is ipso facto that the defendant is not only privy to the Ameoda judgment but is bound by it. It follows that the Ameoda judgment, Exhibit B, is binding on the defendant and operates as an estoppel by record against him.
In such situation, the plaintiff as a stranger to the Ameoda case can rely on the Ameoda judgment against the privies in that case, that is,the descendants of Forzi family including the defendant herein as an exception to the general principle under the doctrine of estoppel.
From the foregoing, it is clear that the trial judge did not err when he held that the plaintiff can rely on Ameoda case as evidence against the privies of Forzi family including the defendant herein or as an estoppel against the descendants of Forzi family from reasserting title over Tekpenya land which that family (Forzi family) had earlier on acknowledged in Ameoda case that they had no title over the same lands.
For these reasons, I find no merit whatsoever in ground 2 of the appeal and the same is accordingly dismissed. I therefore affirm the judgment of the trial High Court and dismiss the appeal in its entirety.
(JUSTICE OF APPEAL)
I have had the benefit of reading the judgment just delivered by the president of the panel. I am in agreement that the appeal be dismissed for the several reasons given. For in Effissah vrs Ansah [2005/06] SCGLR 943 at 946 at holding 1, the apex court advised that:
“Where a trial court had articulated reasons in support of its findings and conclusions, an appellate court minded to set aside those findings and conclusions had the absolutely imperative duty to provide reasons for doing so”.
We have no reasons to provide as the basis for not concurring in the conclusions of the trial judge. In the same case at holding (6), the court advised again that:
“In evaluating evidence led at a trial, the presence of such matters per se (i.e. inconsistencies, conflict or contradictions) should not justify a wholesale rejection of the evidence to which they might relate. Thus, in any given case, minor, immaterial, insignificant or non-critical inconsistencies must not be dwelt upon to deny justice to a party who had substantially discharged his or her burden of persuasion. Where inconsistencies or conflicts in the evidence were clearly reconcilable and there was a critical mass of evidence or corroborative evidence on crucial or vital matters, the court would be right to gloss over those inconsistencies”.
I dare say that the written submission of the defendant/appellant is fraught with such submissions which the trial judge rightly refused to accede to.
Except for an order of recovery of possession of the land, the defendant/appellant counterclaimed for declaration of title and other ancillary reliefs just as the plaintiff/respondent. And it is a well-established principle of law that a defendant who counter-claimed assumed the same burden of proof with respect to the counter-claim as the plaintiff to his claim – see Birimpong vrs Bawuah [1994/95] GBR 837 at holding (1).The defendant/appellant must therefore succeed on his counter-claim on the strength of his own evidence and not on the weakness of plaintiff’s case – see Owusu vrs Tabiri [1987/88] 1 GLR 287.
The plaintiff/respondent’s case is anchored on two pieces of documentary evidence, namely the 1928/29 Gold Coast Chiefs List in which Nartey Asamoah, the plaintiff’s grandfather was stated as Nokotomah of Kopodor village, Exhibit A and the Court of Appeal judgment in Ameoda vrs Pordier and Ameoda vrs Forzi & Others  GLR 479 (Consolidated).
The best evidence rule is not of recent origin. It is a rule which requires a party to produce the best evidence that the nature of the case allows. At common law, the best evidence in proof of a claim is a document which is not only relevant but also authentic. In land matters as in the instant case, a good title to the land according to the Land Title Registration Law, 1986 (PNDCL 152) at section 23(5) is always documentary.
So where documents support one party’s case as against the other, the court should consider whether the later party was untruthful or truthful but with faulty recollections. For the settled law is that wherever there is in existence a document and conflicting oral evidence over a transaction, the practice of the court is to lean favourably towards the documentary evidence, especially if it was authentic and the oral evidence conflicting – Yorkwa vrs Duah [1992/93] GBR 278 cited with approval in Fosua & Adu-Poku vrs Dufie (Dec’d) & Adu-Poku Mensah  SCGLR 310.
From the evidence on record, I hold the view that defendant appellant’s evidence is not a product of faulty recollection of traditional evidence but he was just not being truthful as his own relative Addo Forzi (PW1) denied his claim. But more importantly, Exhibit A, the Chiefs List of 1928/29 recognized Nartey Asamoah as the Nokotoma of Kopodor and as at today, Nartey Asamoah is succeeded by his descendants as Nokotoma of Kopodor. The combined effect of Exhibit A and the current practice has consigned into oblivion/dustbin the defendant/appellant’s evidence that their relative Asare (Ashalley) Botwe brought Nartey Asamoah from war and gave him a place on their land to live, hence Asamoah and his descendants as the plaintiff/respondent herein are their licensees. The documentary evidence of the current control of the Kopodor land by Asamoah descendants certainly render the case of the defendant/appellant not reasonably probable.
Having said that on Exhibit A, I am in this concurring opinion concerned more with the denial of the defendant/appellant that his father Tei Kwablah Forzi section of the Forzi family of which he claimed he is the head now is not affected or concerned in the Ameoda judgment. He makes this claim because according to him, his father’s name was not mentioned anywhere in the judgment.
The defendant/appellant’s evidence of the founding of the land by his ancestors compared with the established facts in the Ameoda case (supra) will determine the veracity or falsity of that contention. In his evidence-in-chief at page 287 of the record of appeal, defendant/appellant was asked:
“Q. How did your grandfathers come to acquire this land?
A. Our great grandfather known as Tetteh Tsuru came with Oklu Boso from Lolovo around Tetemang, east of Osudoku District. When they came to settle there, my grandfather had 5 children”.
Then still in examination-in-chief, the defendant/appellant was asked at page 293 of the record of appeal:
“Q. What do you have to say about that case (i.e. Ameoda case) in relation to this land?
A. Forzi is a clan and not a family. We have Kudadzi Forzi family, Mawuena Forzi family, Kweitey Forzi family and Tei Kwablah Forzi family. Our forefather that is Forzi had three children that is Kweitey, Tetteh Mawuena and Tei Kwablah before Kudadzi was brought. At the time of the death of our forefather Forzi all his children had their own settlement. Kudadzi and Mawuena settled on Ameoda’s land and that was when Ameoda sued Kudadzi and Mawuena filed a joinder. That land is different from the land in dispute.
What this evidence of defendant/appellant means is that their great-grandfather Tetteh Tsuru founded the land and lived on it with his five children. Defendant/appellant’s father Forzi must be one of those five children of Tetteh Tsuru. And according to defendant/appellant, the three or four children of Forzi including his father Tei Kwablah Forzi lived on the land founded by their great grandfather in their own settlements.
The three or four children of Forzi must therefore have inherited the portions of the land they settled on through their father Forzi. The question then is if Forzi have their own land founded 350 years ago by their great grandfather, how come that Kudadzi Forzi and Mawuena Forzi went to stay on the land belonging to the Ameoda family as licensees?
Again, the defendant/appellant stated that the land the subject-matter of dispute in the Ameoda case (supra) is different from the land in the present dispute. It is the defendant/appellant’s case that the disputed land in this case is at Tekpernya just as the land the subject-matter of dispute in the Ameoda case. He also told the court that there is only one Tekpernya on Ningo Stool land. If that were so, then there must have been or should be at least two distinct Forzi settlements – those settlements on the land founded by the defendant/appellant great grandfather and those settlement on Ameoda family land by Kudadzi and Mawuena Forzi. Failing that, there should be several settlements by the descendants of the five children of Tetteh Tsuru, defendant/appellant’s great grandfather. But that kind of evidence showing that because there are two or more Forzi settlements, the disputed land in Ameoda case (supra), excluded the settlement established by Tei Kwablah Forzi, defendant/appellant’s father, was not led by the defendant/appellant.
Further, going by the defendant/appellant’s narration of the founding of their land by their great grandfather, no portion of the land founded by their great grandfather and situated at Terpkenya was ever a subject-matter of any litigation. The pertinent question then is did any ancestor of the defendant/appellant ever found any land at Terkpenya?
According to the facts established in the Ameoda case, no ancestor of the defendant/appellant founded any land at Terkpenya. The facts in the Ameoda case have been stated in sufficient detail in the lead judgment. But on this issue I quote a piece at page 491 in paragraph 3 of the Court of Appeal judgment thus:
“His father Forzi was said to have been responsible for causing the death of many persons by juju. He was then said to have been expelled from Akwiem. He therefore came to Ningo and was permitted by the appellant’s ancestor by name Gaga Galo to live on the Terkpenya land and rear cattle. This he did until his death some years ago. Not only did Forzis not question the appellant’s title to the land, but there is evidence that the respondent Kudadzi Forzi expressly acknowledged it …”
It is very clear from this statement that the Forzi family settled and lived on land given to them by the Gaga Galo family which is the Ameoda family. The land was given them upon terms. They were therefore bare licensees and were not owners. Granted that defendant/appellant’s father’s land/settlement was not affected by the Ameoda judgment, is it the case that Kudadzi and Mawuena, also children of Forzi did not know the history of the land as propounded in this case by the defendant/appellant?
The straight answer is that the land on which the Forzis settled did not belong to them and so has no such history. I say so because in the Ameoda case, the Forzi did not even claim ownership of the land in themselves but rather found solace in the principle of jus tertii in the Ningo Stool. That was the reason why the Ningo Stool joined the suit but lost.
I noticed counsel for defendant/appellant criticized the Ameoda judgment for not stating the boundaries of the land. And if that had been done, it would have been clear that defendant’s father’s land/settlement was not included. The answer is that as between the parties therein and as found in the present suit, the identity of the land was not in doubt. In any case, since it is the defendant/appellant who made that assertion, he had the onus to prove it. But as I have already determined, he had failed to establish by any evidence that there is any Forzi settlement at Terkpenya belonging to his father separate from the others. In the premises, I find and hold that the Ameoda judgment has affected all the land(s) occupied by the Forzi descendants including the Tei Kwablah Forzi, the defendant/appellant’s father.
What then is the effect of the Ameoda judgment in this particular case? Generally, as between the parties and their privies, the judgment is presumed to be conclusive evidence of its contents. In the absence of any cogent evidence to the contrary, the court can take judicial notice of it as it serves as an impeachable source of the facts contained therein – see section 9(2)(b) of NRCD 323. Indeed in Hilodjie vrs George [2005/06] SCGLR 974, the court held that decisions of courts of competent jurisdiction amongst others, qualify as a source whose contents the court can safely take judicial notice of.
In this regard, I am also in agreement with the finding of the trial judge that the Ameoda judgment, on the authority of Nana Akofo III vrs Nana Kwami Agyemang  1 GLR 524 was tendered and employed as a relevant fact or evidence which proved the case of the plaintiff/respondent reasonably as probable. It was not just tendered as any piece of exhibit or evidence for that matter.
Lastly the counsel for the defendant/appellant in his submission took issue with the trial judge’s holding that the defendant/appellant is estopped by the judgment in Ameoda case (supra) which is a judgment in rem, from relitigating over the disputed land. In the first place, counsel submitted that the Ameoda judgment is not a judgment in rem. More importantly, the parties and the subject-matter in the present suit are not the same as in the Ameoda suit and the plaintiff/respondent is not a privy of any of the parties therein either. That being so, counsel argued, the trial judge erred when he held that the defendant/appellant is estopped per rem judicata by his counter-claim.
The conditions which must be present to successfully invoke the doctrine of estoppel per rem judicatam are trite and counsel for the defendant/appellant correctly espoused them. It is true the plaintiff/respondent is not a privy to any of the parties in the Ameoda case but as a stranger to that suit, there is one exception which he could take advantage of and that is the exception the trial judge applied in his favour. It is apparent to me that counsel for the defendant/appellant was unable to appreciate the context in which the trial judge applied the principle of mutuality.
It is this. The defendant/appellant agreed there is only one Terkpenya under the Ningo Stool. The Ameoda family land over which Kudadzi Forzi and others litigated and lost is at Terkpenya. We have affirmed in this appeal that the defendant/appellant’s father’s interest is deeply affected by the Ameoda judgment and defendant/appellant is privy to it. Although plaintiff/respondent places the location of the disputed land at Kopodor, defendant/appellant says it is at Terkpenya.
Here then is the reasoning of the trial judge based of defendant/appellant’s contention. If it is the defendant/appellant’s contention that the disputed land in this suit is at Terkpenya and the Forzi family has lost the only land they claimed the Forzi family owned at Terkpenya, then the defendant/appellant is estopped by the Ameoda judgment to which he is privy. This is because apart from the land Kudadzi and Mawuena litigated over with the Ameoda family, the Forzi family did not live on any other land at Terkpenya.
In these circumstances the trial judge observed, the plaintiff/respondent although a stranger to the Ameoda judgment, can use it a shield to parry off the claim of the defendant/appellant as an exception to the general conditions which underpin a plea of estoppel per rem judicatam. For as held in Fori vrs Ayirebi  GLR 627 at page 636:
“Although in equity estoppel must be mutual, a stranger to a former suit could successfully plead in a latter suit to which he was a party that his opponent was bound by an admission against interest which he had made in a previous suit, i.e. that his opponent was estopped from denying what he had sworn to in the previous suit to obtain a declaration in his favour”.
It is recalled that in the Ameoda case (supra) in 1967, the Forzi family never pleaded and claimed any piece of land as their own inherited from their great grandfathers over 350 years ago. How come 47 years later the defendant/appellant is claiming the land he counterclaimed for exclusively as his father’s. So whether the Ameoda judgment is in rem or in personam, it is immaterial. The claim cannot be bona fide because it is not reasonably probable on the particular evidence he proffered and relied on. The trial judge we hold rightly dismissed his counterclaim and we affirm it. Accordingly, the appeal is dismissed.
AYEBI, J.A. – E.K. AYEBI
(JUSTICE OF APPEAL)
SOWAH (MS.), J.A. – I agree. C. SOWAH (M/S)
(JUSTICE OF APPEAL)