IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL
CAPE COAST - A.D 2018
DANIEL BOADI - (Plaintiff/Appellant)
ABENA NYAME ADOM & 1OR - (Defendants/Respondents)
DATE: 4 TH FEBRUARY, 2018
CIVIL APPEAL NO: H1/59/2017
JUDGES: IRENE C. LARBI (MRS) J.A. (PRESIDING), LAWRENCE L. MENSAH J.A., A. M. DOMAKYAAREH (MRS) J.A.
KWABENA BOATENG FOR THE PLAINTIFF/APPELLANT
CYNTHIA MARTINSON FOR THE DEFENDANT/RESPONDENT
DOMAKYAAREH (MRS), J. A.
1. This is an appeal against the judgment of the Circuit Court, Dunkwa-On-Offin dated 17th June, 2016. From the Writ of Summons, Statement of Claim and the evidence adduced before the trial court, the plaintiff/appellant, (hereinafter called the appellant), averred that one C.K. Ango bought a piece of land from the Ayanfuri Unit Committee in 1990, put up a Kiosk on the land and operated a chop bar business therein from 1990 until 2006 when he gave same as a gift to one Nana Osei Yaw who is the appellant’s uncle. The said Osei Yaw who possessed the land allowed his daughter (who is the appellant’s wife) to operate her hairdressing business in the kiosk on the land and later gave same to the appellant absolutely to work on.
In March 2014, the appellant decided to erect a structure on the land and because the land in dispute is close to the Dunkwa-Ayanfuri High way, he wrote to the Highways Authority to permit him to put up a structure and same was granted. When he begun the said construction, the defendants tried to stop him and so he informed C.K. Ango who came with the Unit Committee of Diaso and informed the defendants that the land in dispute was not for them as the Unit Committee had given the land in dispute to C.K. Ango; that when the defendants would not budge, he sued them in court which culminated in the instant appeal. At the court below, the appellant claimed four reliefs namely: -
1. An order to declare him as the rightful person who has been legitimately permitted by the Ghana Highway Authority and the Upper Denkyira West District Assembly to occupy the piece of land in dispute;
2. An order to compel the defendant to pay him GH⊄2,000.00 in respect of his foundation trenches which defendant has destroyed, and the blocks which she had damaged together with his shirt which defendant tore and caused damage to;
3. An order for the payment of damages in the cash sum of GH⊄6,000.00 for Civil Assault when defendant and her sisters assaulted him on 18th June 2014 while working on the same piece of land
4. Perpetual injunction restraining the defendant, either by herself, her servants, agents, assigns, workmen, relations etc from having anything to do with the piece of land in issue.
2. The 1st defendant/respondent, (hereinafter called the 1st respondent) denied the appellant’s claim. Per her Statement of Defence and her testimony in court, she stated that the land in dispute first belonged to her grandfather, one Opanin Kwabena Ababio. When her grandfather died, the land was given to her mother Akua Yareyeya and following the death of Akua Yareyeya, the land became theirs and they have remained in possession. The 1st respondent averred that during the life time of her mother, she built one room on the said land, leaving some portion of the land vacant. The 1st respondent, who testified for herself and on behalf of the 2nd respondent said about 16 years previously, C.K. Ango came to their mother Akua Yareyeya and sought her permission to put up a chop bar in front of their house and same was granted on the condition that C.K. Ango will put up only a temporary structure so that anytime their mother wanted him to leave he would do so
3. The 1st respondent said she was present together with her sister Afia Mansah and her brother Akwasi Adei when C.K. Ango came to seek the permission from her mother. She said her mother died one year after C.K. Ango was permitted to put up the structure on their land. She said after their mothers’ death, she and her siblings went to see Mr. Ango as they saw someone moulding blocks on the land in dispute. Upon their enquiry C.K. Ango denied any knowledge of the moulding of the blocks. Later, they informed C.K. Ango that they needed their land back but he told them to return home as he would come to see them later. She said in 2014, they saw the plaintiff digging foundation trenches on the place C.K. Ango’s kiosk was situated. She and her siblings confronted the appellant and prevented him from continuing with the digging of the foundation trenches. The appellant and Nana Osei Yaw reported the matter to the Police Commander at Dunkwa-On-Offin who ordered the Town and Country Planning Office to survey the land for them to find out who owned it and this was done. The 1st respondent said the survey report indicated that the land was for them.
4. The 1st respondent further explained that their late grandfather did not leave any documents on the land in dispute as was the case many years ago. She said when Nana Kwasi Kwarteng became the Regent of Ayanfuri, he announced that all should formalise their land documents by having same duly documented. They complied with the instructions and were given a site plan of the area.
The 1st respondent counter-claimed for two reliefs, Viz: -
i) An order for recovery of possession of the disputed land and
ii) An order for perpetual injunction restraining the plaintiff, his servants, agents, assigns, workmen etc from having anything to do with the defendants (sic) land
5. The 2nd respondent who applied and was granted leave to join the suit as co-defendant filed a
Statement of Claim almost identical to that of the 1st respondent and counterclaimed for four reliefs to wit:
a) Declaration that the land in dispute with house thereon forms part of the estate of the late Akua Yareyeya and same devolved into her children by PNDCL 111
b) Recovery of possession
c) An order for perpetual injunction restraining the plaintiff, his servants, agents, assigns, workmen etc from having anything to do on the said land
d) An order for removal of the temporary structure occupied by the plaintiff on the defendants’ land.
The case run its normal course during the trial at the end of which the trial judge delivered his judgment on 17th June 2016. He dismissed all the claims of the appellant and entered judgment in favour of the 1st respondent and 2nd respondent on all their respective counter-claims.
6. The appellant, “being completely dissatisfied with the judgment” promptly filed his appeal against same per his Notice of Appeal filed on 22nd June 2016. His appealed is against the entire decision and the relief he is seeking in this court is an order setting aside the said judgment in favour of the plaintiff. He lodged the appeal on two grounds, namely:
i) That the judgment is against the weight of the evidence and
ii) Other grounds of appeal would be filed upon receipt of the record of proceedings and judgment.
On 15th November 2017, the appellant filed an Amended Notice of Appeal pursuant to leave granted by this court on 7th November 2017.
The amended grounds of appeal are also two, namely: -
i) That the judgment is against the weight of evidence
ii) That the Circuit Court erred by not finding that the defendants/respondents lacked capacity to maintain their counter-claim
We shall evaluate these grounds of appeal in the order in which the appellant argued them.
That the Circuit Court erred by not finding that the defendants/respondents lacked capacity to maintain their counter-claim
7. It is the appellant’s contention that the two respondents lacked the capacity to counterclaim for the reliefs as stated in their respective Statements of Defence and Counterclaims. Counsel submitted that the 1st respondent’s counterclaim did not indicate whether she was claiming for herself or for her mother. He said the 1st respondent’s story is that the property belongs to her mother, Akua Yareyeya who died in the 1990s. He submitted that this alone shows that she has no capacity to claim the property for herself and that as she did not exhibit any Letters of Administration entitling her to administer the estate of her late mother, the 1st respondent could not and had no capacity to counterclaim for reliefs that put her title to the land in issue.
8. Counsel placed the same impediment in the path of the 2nd respondent. He submitted that the 2nd respondent is not also an Administrator of the estate of Akua Yareyeya, who is not even her mother, but grandmother. The 2nd respondent, therefore, has no interest in the property of her grandmother who died intestate and consequently lacked the capacity to maintain a counterclaim in respect of her grandmother’s property.
Counsel submitted that it is settled law that the property of a deceased person devolves on his personal representations, that is, the executors in the case of a testate estate and the administrators in the case of an intestate estate. Counsel supported this position of the law with the Supreme Court case of OKYERE (DEC’D) SUBSTITUTED BY PEPRAH V APPENTENG AND ADOMAA  1 SCGLR 65 where it was stated per holding 2 that with the Coming into force of the Administration of Estates Act 1961 (Act 63], devisees or prospective beneficiaries have no locus standi to counterclaim in the absence a vesting assent executed in their favour. Counsel also cited Sections 1(1), 2(1) and 96(1) of Act 63 in support. These provisions are reproduced herein below for their full effect: -
“Section 1—Devolution on Personal Representatives.
(1) The movable and immovable property of a deceased person shall devolve on his personal representatives with effect from his death.
Section 2—Status of Personal Representatives.
(1) The personal representatives shall be the representative of the deceased in regard to his movable and immovable property.
Section 96—Effect of Assent or Conveyance by Personal Representative.
(1) A personal representative may assent to the vesting, in the form set out in the Third Schedule to this Act, in any person who (whether by devise, bequest, devolution, appropriation or otherwise) may be entitled thereto, either beneficially or as a trustee or personal representative, of any estate or interest in immovable property to which the testator or intestate was entitled or over which he exercised a general power of appointment by his will, and which devolved upon the personal representative.”
9. These submissions by Counsel for the appellant appear very powerful and cogent on the face of it but Counsel for the respondents was not without answer to the submissions. Counsel conceded that as per numerous decided cases such as ASANTE-APPIAH V AMPONSAH ALIAS MANSAH  SCGLR 90; ADWUBENG V DOMFEH [1996 – 97] SCGLR 660; YAA KWESI V ARHIN DAVIS & ANOTHER [2007 -2008] 1 SCGLR 580 and the old case of ABOTCHE KPONUGLO and OTHERS V ADJA KODADJA  2 WACA 24, PC, it is trite learning that a person who seeks for recovery of possession and perpetual injunction puts his or her title in issue; therefore, since a counterclaim amounts to a fresh suit in itself, the defendant is also obliged to satisfy the court of their title to the disputed land. Counsel submitted that, the respondents, being the children of the late Akua Yareyeya and beneficiary of her estate by operation of law under PNDCL III, were clothed with the necessary capacity to exercise their legal right to prevent trespassers like the appellant from interfering with that which was theirs.
10. Counsel submitted that the third exception to the rule in KWAN V NYIENI  GLR 67 i.e. ‘necessity’, vests the respondents with the capacity to maintain the suit. The exception under the rule in KWAN V. NYIENI as is well known is that in situations of necessity, a member of a family may mount an action to protect the family property. Counsel submitted that the spirit behind this exception to the rule in KWAN V NYIENI should be applied to cloth the respondents with the capacity to counterclaim for recovery of possession and perpetual injunction for them to protect the land Akua Yareyeya left for them. It is in this light that the quaere concerns raised by Brobbey JSC in the OKYERE CASE cited supra ring a loud bell. At page 76 of the Law Report, this is what Brobbey JSC posited: -
“… It is common knowledge that in this country some estates are dissipated by the inaction of the executors or personal representatives. Others go to waste or are lost as a result of the active misuse or abuse of the estate left by deceased persons when executors or personal representatives refuse or fail to attend to duties entrusted to them under estates or selfishly make use of the estate to their benefit or benefit of undeserving persons.
If the law is that a beneficiary or devisee has no title to sue or be sued until the grant to him of a vesting assent, what does he do in any of the situations postulated above? At equity, such a person should be able to mount an action to protect the estate or to save it from being dissipated or wasted. The plaintiff in such an action will be acting on the basis of his expectant interest in the estate, not in his capacity as a title holder under a will or grant at customary law or statute law”.
11. Counsel’s further response is that the respondents have been in possession of the land in dispute since their grandfather’s time and that it was during their mother’s time that C.K. Ango was given permission to enter the land upon terms. These terms, principally not to construct a permanent structure on the land and also to vacate the land whenever it was required were deserved until about 2014 when they saw the appellant attempting to put up a permanent structure on the land whereupon they stopped him.
Relying on the well-known principle that a party in possession of land has good title to the land against the whole world except one with a better title, Counsel submitted that the respondents by their acts of possession, were clothed with the necessary capacity to institute and maintain their respective counterclaims against the appellant who was a trespasser.
Counsel submitted that the appellant, having failed woefully to establish his root of title cannot claim to have a better title than the respondents.
See MRS ELIZABETH OSEI (Substituted by PORTIA GILARD) V MADAM ALICE EFUA KORANG  58 GMJ 1 holding (b), where the Supreme Court held that a party in possession has a good title against the whole world except one with a better title.
Also see SAGOE & OTHERS V SOCIAL SECURITY AND NATIONAL INSURANCE TRUST  2 SCGLR 1093. It follows therefore, that in the absence of a better title from the appellant, the respondents are entitled to the protection afforded persons in possession of land, and in that context, their capacity cannot be challenged.
12. The Appellants argument on capacity is also not tenable as he himself is caught by the same argument. The appellant traces his root of title to the Ghana Highways Authority. He did not demonstrate how the land in dispute devolved from Ghana Highway Authority to the Ayanfuri Unit Committee and then to C.K. Ango, Nana Osei and finally himself. In that case, he was also a busy body as he lacked capacity to initiate the suit for and on behalf of himself. The appellant cannot aprobate and reprobate. The law does not allow that and equity seriously frowns on same.
We find that the submissions of counsel for the respondents are tenable. We accordingly find favour with them, anchored by the equitable principle in the quaere in the OKYERE case cited supra.
Ground (ii) of the grounds of appeal is therefore dismissed.
That the judgment is against the weight of evidence.
13. Under this ground of appeal, as per the decided cases, which are not in want, the appellant has the duty to clearly and properly point out the pieces of evidence on the record which if applied in his favour, could have changed the decision in his favour and or the pieces of evidence that have been wrongly applied against him. See DJIN V MUSA BAAKO [2007-2008] SCGLR 686. When this has been done, it then behoves on the appellate court, which is placed in the same position as if the exercise was the original re-hearing is under an obligation to go through the entire record to satisfy itself that a party’s case was more probable than not. See TUAKWA V BOSOM [2001-2002] SCGLR 61; BROWN V QUARSHIGAH [2003-2004] SCGLR 930 AT 942 and ABBEY & 2 OTHERS V ANTWI  SCGLR 17 AT 34 – 35.
14. What Counsel for the appellant did instead was to re-argue his case before this court as he did in the court below. He narrated that C.K. Ango acquired the land in 1990, possessed it exclusively till 1996 when he gave same to Opanin Osei Yaw who also after some years, handed the land over to the appellant totalling close to 28 years of undisturbed possession. He recalled the evidence of their witnesses in support of same and contended that where a person is in possession and exercises rights of ownership, then he is deemed to be the rightful owner.
15. Counsel also referred to weakness in the respondent’s case to the effect that the site plan tendered by the respondents was in the name of Kwabena Ababio but the respondents did not show how and whether the property became that of Akua Yareyeya by way of gift or assented beneficiary; and that this lacuna cannot vest a valid title in Akua Yareyeya and subsequently to the respondents. Counsel said the site plan was dated October 2003 when even it is on record that Akua Yareyeya died in the 1990’s. Counsel therefore contended that, the respondents recently got the site plan, tendered as Exhibit 1 to be drawn up for them to deceive the court and overreach the appellant. Counsel also rubbished the testimony of DW2 the Planning Officer at the Upper Denkyira East Municipal Assembly on the grounds that she was not a surveyor. Counsel then concluded his written submissions emphasising their view that the appellant’s story was more probable than that of the respondents and therefore the trial judge out to have found for the appellant.
16. Counsel for the respondents started his submissions on this ground of appeal by faulting Counsel for the appellant for re-arguing his case as he did at the trial court instead of pointing out pieces of evidence that were wrongly misapplied by the trial judge or was not taken into consideration in his evaluation of the evidence. Counsel submitted, and rightly so that the record does not support the contention of the appellant that the appellant had been in possession for close to years and that therefore this possession entitled the appellant to the disputed land. Counsel submitted that the trial judge found as a fact that it was the defendants and not the plaintiff who have been in possession of the disputed land. This is how it was captured by the trial judge at page 10 of his judgment which can be found at page 131 of the ROA: -
“In the considered opinion of this honourable court, taking the evidence as a whole, the defendants’ case that PW1 [C.K. Ango] was permitted by their mother only to put up a temporary kiosk on their land was more probable than not as corroborated even by Exhibit ‘A’ which showed that it was only the kiosk which was issued to PW1. Furthermore, even though the plaintiff’s case was that, he was claiming possession of the said land through PW1, in Exhibit ‘C’ when he plaintiff wrote to the Ghana Highway Authority on the 19th day of March 2014, he only stated as follows: ‘I humbly wish to apply for a piece of land within your jurisdiction to put up a temporary kiosk around Ayanfuri roundabout.
I will abide by any condition governing the said land.
I hope my application will be approved’.
If truly the plaintiff believed that the Ayanfuri Unit Committee had given to PW1 any such land and not that PW1 was occupying the said land with the permission of the defendants, why did he now even seek to apply to Ghana Highway Authority for the same parcel of land especially when there was no suggestion that Ghana Highway Authority had questioned the location of the said Kiosk? Furthermore, in Exhibit ‘C’ also, plaintiff was only applying for a fresh parcel and unidentified parcel of land which could by no stretch of imagination be said to be the land in dispute. In addition to this, even comparing Exhibit ‘B’ [the site plan of the plaintiff] and ‘Exhibit 1’ namely the site plan of the defendants, clearly defendants parcel of land as delineated in ‘Exhibit 1’ and which included the land in dispute was not even located in “Exhibit B” the site plan of the plaintiff. In this light, on a balance of probabilities, whatever land Ghana Highway Authority had in mind to give to the plaintiff could not have been the land in dispute”
17. Judicial authorities have established quite firmly that findings of fact by trial courts should not be reversed on appeal unless they have been erroneously arrived at. Upon a critical perusal of the record of proceedings, we agree with the trial Circuit Judge on these findings of fact. See the cases of QUAYE V. MARIAMU  GLR 93 SC; RE TAAHYEN & ASAAGO STOOLS, KUMANIN II (substituted by OPPON) V. ANIN [1998 -1999] SCGLR 399 at 406 and BARKERS-WOODE V NANA FITZ [2007 – 2008] 2 SCGLR 879.
18. The appellant’s contention that the documents he tendered in court vests title in him is not also borne out by the record. We again agree with the assessment of the trial judge on these documents when he stated thus at page 6 of his judgment which is at pages 127-128 of the ROA:
“From Exhibits ‘A and B’, plaintiffs case was that the Unit Committee of Ayanfuri in the year 1990 demarcated the land in dispute for PW1 and told him that only the Ghana Highway Authority could eject him from the land in dispute. The argument of plaintiff was that the land in dispute was a road reservation. … Now as the plaintiff has claimed that it was the Ayanfuri Unit Committee that gave the land in dispute to PW1 and the PW1 was told by them that it was only the Ghana Highway Authority who could eject PW1 and hence him, he was in effect making Ghana Highway Authority his root of title to the land in dispute. It was therefore incumbent on plaintiff to prove that Ghana highways Authority owned the said land in dispute and secondly that they had given same to him. From the evidence adduced in this trial, the plaintiff sought to by documentary evidence prove his case. “Exhibit A” was a receipt titled TOWN DEVELOPMENT COMMITTEE. The ‘DEVELOPMENT’ had been cancelled and in its place the word ‘Unit
Committee’ had been written in ink above the typed receipt. It was dated 24th February 1990, with the following contents, “Received from C.K. Ango the sum of Ten cedis being cost of kiosk. In the considered opinion of this court, this defeated the story of PW1 namely C.K. Ango that in the 1990s the Ayanfuri Unit Committee gave to him the land in dispute as per “Exhibit A”. The receipt was only for the cost of a “kiosk”.
“Exhibit B” which was supposed to be a site plan turned out to be the drawings of “a supposed restaurant” with some drawings of a road and some house settlements scattered on same. Most significantly, the said alleged site plan did not specifically show where the proposed restaurant was to be located on the said site plan. This honourable court is therefore not surprised that when DW2 came to measure the land in dispute, the plaintiff did not produce any site plan. …”
19. It is trite learning that documents in the nature of receipts and site plans do not by themselves convey title to land. In the instant case, the matter is even worse because the receipt relied upon was for the cost of a kiosk and not the cost of land and the so-called site plan was actually drawings of a proposed restaurant while Exhibit “C’ was now a letter dated 19th March 2014 applying for an unidentified land around Ayanfuri roundabout from the Ghana Highway Authority to put up a temporary kiosk. As a matter of fact, the documentary evidence relied upon by the appellant have no probative value as far as title to land is concerned and the learned trial judge rightly appreciated them as such.
20. The appellant ought to know, since ignorance of the law is no excuse, that in litigation, you have to win on the strength of your own case and not on the weakness of your opponent’s case. See the case of AWUKU V TETTEH  1 SCGLR 366
21. On the contention by Counsel for the appellant that the respondents obtained their 2003 site plan which he described as recently obtained in order to deceive the court and overreach the appellant, Counsel did not explain how in 2003 the respondents could have known that the appellant would issue a writ against them on 23rd June 2014, (almost eleven years) into the future and therefore prepared their case by obtaining the site plan. Counsel was in court when the 1st respondent testified that their grandfather did not leave any documents on the land as was the case during his time. She further testified that when Nana Kwasi Kwarteng became Regent of Ayanfuri he made an announcement that everybody should formalise their land documents for purposes of documentation and they complied resulting in the sited plan drawn for them on 2003. Counsel did not challenge this testimony. He and his client are deemed to have accepted same and are bound by the genuineness of the site plan.
22. Counsel rubbished the testimony of DW2 the Planning Officer at the Upper Denkyira East Municipal Assembly on the grounds that she was not a surveyor. The appellant continues to aprobate and reprobate. DW2 admitted that she was not a surveyor. But she also testified that because there was no Licenced Surveyor in her Office, due to the absence of a Survey Department in the Municipality, they as part of the Lands Agency, help in surveying and solving land disputes in the Municipality. It was in this capacity that she went to survey the land in dispute on the instructions of the Police Commander at Dunkwa-on-Offin. The appellant participated in that exercise without any reservations and cannot now turn around to challenge the competency of DW2.
23. On the totality of the evidence on record we find the judgment of the trial Circuit Judge to be irrefutable. We find that none of the conditions that warrant the interference by an appellate court in the findings of a trial judge as set out by the Supreme Court in the case of AMOAH V QUARTEY (2011) 32 GMJ 50 at Holding 1, have been met, namely if the findings of the trial court are wrong because: -
(a) the court has taken into account matters which were irrelevant in law,
(b) the court has excluded matters which were critically necessary for consideration,
(c) the court has come to a conclusion which no court properly instructing itself would have reached and
(d) the courts findings were not proper inferences drawn from the facts.
24. We find that the judgment is supported by the evidence on record; based on the credibility of the witness whom the trial court had the opportunity and advantage of seeing and observing their demeanour; and that the trial judge was satisfied of the truthfulness of the testimonies on any particular matter, in this case the respondents and their witnesses. Ground (i) of the grounds of appeal is consequently dismissed.
25. The entire appeal therefore stands dismissed and the judgment of the Circuit Court Dunkwa-On-Offin dated 17th June 2016 is affirmed.