IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL
ACCRA - A.D 2018
EFFIDUASE STOOL - (Defendant/Appellant)
MPONUA STOOL - (Plaintiff/Respondent)
DATE: 31 ST OCTOBER, 2018
CIVIL SUIT NO: H1/70/2018
JUDGES: M. OWUSU (J.A.) – PRESIDING, KWOFIE (J.A.), GAISIE (J.A.)
MARIAMA OWUSU, J.A.:
This is an appeal against the judgment of the High Court, Kumasi dated 29th March, 2017. In the said decision, the court entered judgment for the plaintiff Stool on all the reliefs endorsed on its writ of summons. It also awarded GH¢40,000.00 general damages in favour of the plaintiff against defendant and Gh¢10,000.00 cost in favour of the plaintiff against defendant.
Dissatisfied with the decision of the trial Judge, the defendant appealed on the following grounds:
i. The judgment of the court below was against the weight of evidence.
ii. The weight of evidence did not support the conclusion of the court below decreeing the reliefs sought by the plaintiff/respondent in its favour. The failure of the court below to properly, dispassionately, fairly and validly evaluate the evidence before it occasioned the defendant/appellant substantial miscarriage of justice amounting a denial of justice.
iii. The judgment is very subversive of the ancient well-established constitutional order and hierarchy of chiefs pertaining to the defendant/appellant stool.
iv. The judgment is a recipe for chaos and contrary to the pristine constitutional and customary, order long established and prevailing in Effiduase long before the establishment of colonial rule in the Gold Coast and the annexation of Asante by the Imperial Government of Great Britain upon the conquest of Asanteman in 1900 and indeed a veritable judicial coup d’tat in so many words.
v. The GH¢40,000.00 damages awarded were arbitrary excessive and unreasonable in the circumstances
vi. The cost awarded is also excessive, prohibitive and unreasonable in the circumstances.
vii. Additional grounds of appeal will be filed upon receipt of the full record of proceedings.
The relief sought from the Court of Appeal is:
“An order reversing the judgment of the court below dated 29th March, 2017 and non-suiting the plaintiff in respect of all the reliefs endorsed on the writ of summons and the plaintiff/respondent mulched in exemplary and punitive costs.”
Before dealing with the arguments canvassed in support and against this appeal, I will give a brief background of the case.
The plaintiff/respondent stool hereinafter referred to as plaintiff by its writ of summons claims the following reliefs:
“1. A declaration that plaintiff stool owns all that land starting from river “efi-efi” and “adawua” confluence Southward and to the right side up to the boundary with Juabeng Stool down to river “anunu” and also starting from the confluence of rivers “efi-efi” and “adawua” confluence Southward and to the left side up to the boundary with Effiduase and Asokore at a place called “afuosua kyerebretuo” and further down on the left up the river “kobere” and further on the left to the old Pekyekye road, then downwards to the right to the “anunu” river the same boundary with Juabeng.
2. Recovery of possession of all pockets of land in the said area in the possession of the defendant, its agents, and all claiming through it.
3. Perpetual injunction restraining the defendant from dealing with the said described land of the plaintiff stool as defendant stool land.
4. General damages for trespass.
In its 44-paragraph statement of claim which accompanied the writ of summons, the plaintiff averred that, centuries ago, the people of plaintiff stool, Mampong and Kwahu migrated together as one people from Adansi Ayaase to the area or land in disputes. Subsequent to their arrival, the people of Mampong and Kwahu moved to settle at their present locations. The plaintiff stool averred further that it remained and settled at a place called Adukro within the disputed area, where they met one Aboro and Ntebease and family already settled at the present day Efffiduase who claimed to belong to the Bretuo Clan.
It is the case of the plaintiff that Aboro and Ntebease showed plaintiff people the area in dispute and said certain creatures live in the densely forest. It continued that their people fought and conquered those creatures and settled on the land hence plaintiff’s name. They also became owner of all the land in dispute. After it had settled on the land in dispute, the people of Effiduase migrated to the area from Ahinsan.
According to plaintiff, the defendant has recently interfered with its ownership of the disputed land by claiming plaintiff has no land of its own and encouraged settlers on plaintiff’s land to deny plaintiff’s title.
The plaintiff concluded that it acquired the disputed land by conquest and its ownership of the land had been acknowledged by the predecessors of the occupant of the defendant stool and there are documents to support its claim, hence this action.
On its part, the defendant/appellant hereinafter referred to as defendant in its statement of defence averred that its ancestress, Asodae Kusi who hailed from Adansi Ahinsan worshipped a fetish “Afiefi” whose priestess guided them to leave Ahinsan for Baworo, thence to Asonomaso and finally to their present abode at Effiduase where they met Botire and Akaa and their people. They conquered them through war and took over their land after driving them away to a place called Daovoman. The defendant continued that its ancestors were hunters and on one of their hunting expeditions in the forest, they met a man and a woman who claimed to be Bretuos and for this reason their lives were spared and resettled at Aboromanmu.
According to defendant, it was sometime later that plaintiff arrived at Effiduase and they also claimed to be members of the Bretuo clan. The Chief of Effiduase accepted them and gave them a place near a thick forest to hunt game for the Chief and to be caretakers of the forest lands for defendant stool. It also created the Nifa Stool for the plaintiff’s people. Defendant stool concluded that it created the Mponua-Nifa Stool of Effiduase and settled the plaintiff at Dotibi and made them caretakers of Effiduase stool land in the area. The defendant stool therefore concluded that the plaintiff has no land of its own and is not entitled to its claim.
After close of pleadings, issues were set down for trial. At the end of the trial, plaintiff’s claim was upheld hence the appeal by the defendant’s stool.
On 7th May, 2018, the defendant filed two additional grounds of appeal.
Per the principles of Estopel Rem Judicata, the High Court had no jurisdiction to entertain the suit since same had been the subject matter of arbitration award that had been published in favour of the appellant.
The court failed to appreciate the capacity or otherwise of a linguist to give evidence in the Traditional Chieftaincy arrangement.
In arguing the appeal, counsel for the defendant referred to the evidence of the plaintiff’s representative, Op. Yaw Peprah who is the senior linguist. Counsel argued that, a linguist did not fall into any of the categories of people who can testify on behalf of a stool. Counsel referred us to Section 9 (1) and 2 (b) of the Evidence Act, 1975 (NRCD 323). He continued that in chieftaincy set up, Okyeame is usually the mouth piece of the Chief. He only states what he has been mandated to say by the Chief. Therefore, Okyeame cannot on his own give evidence except when he has been mandated so to do and this must be expressly stated in his evidence. This is not so in the instant case.
Consequently, counsel submitted the linguist who gave evidence for plaintiff’s stool had no such capacity to give such evidence and to that extent his evidence as well as the Exhibits he tendered are null and void.
Counsel cited the following cases on capacity:
1. Sarkodie Vs. Boabeng (1982/83) GLR 73 holding 2
2. Graves Vs. Oyewoo (1967) GLR 803 CA
3. Akrong & Anor. Vrs. Bullay (1956) GLR 469 SC
If this position is upheld, i.e. the evidence of the plaintiff’s representative is expunged from the record, there is nothing left by way of evidence for plaintiff’s stool and therefore the appeal must be upheld.
In response to the capacity issue raised by counsel for defendant, counsel for the plaintiff submitted that the position as articulated by counsel for the defendant is defeatist. He argued that a stool is a corporate being which can sue and be sued. He continued that, a linguist is an accredited elder or officer of the stool.
Secondly, it is wrong to say that because he did not state in his evidence that he was giving his evidence with the permission of the chief of plaintiff stool he was not authorized to testify on behalf of the stool. Counsel submitted that a linguist had the consent, authority and permission of the occupant of the plaintiff stool Nana Kwakye Amo II to represent the stool and testify in this suit.
Since capacity goes to the very root of a case, we would respond to it first. Secondly, it must be pointed out that, the capacity issue counsel for defendant raised was not in respect of capacity to institute the present suit. It was the capacity of the linguist to testify for the plaintiff stool.
In this respect, the cases cited by counsel for the defendant are irrelevant and not germane to the case under consideration. But more importantly, the evidence given by each party on the acquisition of their respective land is in the nature of traditional history.
In the case of Dotwaah & Another Vrs. Afriyie  GLR 257-269 holding 2, the Supreme Court stated who can testify to traditional evidence. It held that:
“For evidence of tradition to be admissible, the witness who deposes to it must be a person who has a right to be told and a duty to know the tradition, or the history, and none other however intimate and close that other may be to the deceased member of the family who might have related the tradition to him. Among the Akans, members of a clan have such a right and duty. This is because they are possible successors to the estate of members of a clan who die intestate, where there are no members of the more immediate family circles alive, a member of a clan may therefore give evidence as to the tradition of any family within the clan.” Poh V. Konamba  3 WALR 74 considered.
Relating the case supra to the case under consideration, as rightly submitted by counsel for defendant, a linguist is the mouth piece of a chief. He only states what he has been mandated to say by the chief. What counsel for the defendant did not say or address is whether anybody at all can be appointed a linguist of a chief. If the answer is no, then a linguist can testify for the Stool or Chief. In the case cited above, the crucial words are;
“For evidence of tradition to be admissible, the witness who deposes to it must be a person who has a right to be told and a duty to know the tradition or the history” (our emphasis)
Using the above yardstick, we hold that a linguist of a stool can testify for a stool. There is no merit in this ground of appeal and it is accordingly dismissed. See also the Adjei Fio Vs. Mate Tesa [2013-2014] 2 SCGLR 1537, 1539 where their Lords held that, by the rules, every person is a competent witness to testify in an action.
This brings us to the use of Exhibits ‘1’ and ‘2’ which according to counsel for the plaintiff were not tendered at the trial but references were made to them by counsel for the defendant in his written submissions.
The evidence of the defendant’s representative is captured in the record of appeal, pages 180 to 219. The issue of the CD is captured at pages 196, 198 and 201. At page 196, whilst testifying at page 196, lines 6 – 10, this is what the defendant’s representative, the queen mother of the defendant stool has to say:
“My Lord, because the Chief of Effiduase did not allow the supposed Chief to swear the oath he reported him to the Paramount Chief of Mampong and the Chief of Mampong delegated his elders to come to Effiduase to resolve the issue. This is what has been captured in the (sic) on the CD which is yet to be tendered” (our emphasis)
Then at page 198, to a question by defence counsel, this is what the witness said:
“Q: Earlier on you said the proceedings were captured on the CD?
Q. Please identify it
By Court: Does the CD exist?
That is all for her
By Court: Cross-examination by council for plaintiff
Q. The proceedings in respect of which you have testified that it was recorded, no where in those proceedings did the said Abusuapanin open his mouth to say that Mponua Stool land belongs to the Effiduase Stool?
A. He said it and it is on the CD”
See page 201 of the record of appeal. Nothing was said about the CD again. It was also not tendered in evidence. If it was it would have formed part of the record of appeal. This explains why counsel for the defendant has attached it to his written submissions which is not permissible. This offends Rule 26 (1) and (2) of C. I. 19, the Court of Appeal Rules as amended. The said Rule provides as follows:
Rule 26 – deals with new evidence on appeal. It provides thus:
“1. It is not opened as of right to a party to an appeal to adduce new evidence in support of the original case but, in the interest of justice, the court may allow or require new evidence to be adduced.
2. Evidence allowed under sub-rule (1) shall be in the form of an oral examination in court, an affidavit or a deposition taken before an examiner or commissioner who the court may direct.”
The CDs in contention do not fall within the categories mentioned in Rule 26 (1) and (2) and it is hereby expunged from the written submissions of the defendant. That being the case, the issue of jurisdiction and or res judicata raised by counsel for defendant based on the said CDs (he termed them Exhibit ‘1’ and ‘2’) cannot be sustained.
The next issue is the competency of the additional grounds of appeal filed on 7th May, 2018. Counsel for the plaintiff had argued that, in so far as leave of this court was not sought before arguing same. Same is incompetent and should be struck out.
Rule 8(8) of the court of appeal Rules, 1997, C. I. 19 as amended provides that:
“The appellant shall not without the leave of the court, argue or be heard in support of a ground of objection not mentioned in the notice of appeal, but the court may allow the appellant to amend the grounds of appeal on the terms that the court thinks just.”
Rule 8 (9) of C. I. 19 also provides:
“Despite sub-rules (4) to (8), the court in deciding the appeal shall not be confined to the grounds set out by the appellant but the court shall not rest its decision on a ground not set out by the appellant unless the respondent has had sufficient opportunity of contesting the case on that ground.”
From the notice of appeal, counsel for the defendant did indicate that, he would file additional grounds of appeal when he received the record of appeal. The additional grounds have since been filed even though leave was not sought from this court before same were argued in the defendant’s written submissions. These grounds were also argued and counsel for the plaintiff responded. We will grant defendant leave to argue those grounds. In any event, since counsel for the plaintiff has had chance to respond to that ground, in order to do substantial justice, we would overlook the breach. See the case of Hotel Majorie ‘Y’ Ltd. Vs. Monyo [2013-2014] 2 SCGLR 1342, 1344.
This brings us to the original grounds of appeal. A look at them shows that, ground (i) and (ii) can be dealt with under the omnibus ground that the judgment is against the weight of evidence adduced since they are all complaining about the improper evaluation of the evidence on record.
Grounds (iii) and (iv) offends Rule 8 (5) of C. I. 19 in that, they are argumentative and do not disclose a reasonable ground of appeal and they are accordingly struck out.
That leaves us with the ground of appeal that the judgment is against the weight of evidence adduced at the trial.
By this ground, the defendant is complaining that there are certain pieces of evidence on record wrongly applied against it or that certain pieces of evidence on record if applied in its favour would have changed the decision in its favour.
The onus is on the defendant to pinpoint the lapses it is complaining about. Additionally, we as an appellate court is being called upon to evaluate the evidence on record as well as the law and to ascertain whether the decision arrived at by the trial Judge amply supports the evidence on record. See the following cases:
1. Duodo Vs. Benewah  2 SCGLR 1306
2. Owusu-Dowena Vs. Amoah [2015-2016] SCGLR 790, 792
In this appeal, counsel for the defendant in his submission argued that the history as told by the plaintiff sounds like fairy tale whilst that of the defendant is more probable.
To begin with, the evidence as narrated by the parties are in the nature of traditional history or evidence. The test for traditional evidence was laid down by the Privy Council in the case of Adjeibi-
Kojo Vs. Bonsie & Another  3 West African Law Reports (WALR) page 257 per Lord Denning at 260;
“The most satisfactory method of testing traditional history is by examining it in the light of such recent facts as can be established by evidence in order to establish which of two conflicting statements of tradition is more probably correct. Where there is a conflict of traditional history one side or other must be mistaken, yet both may be honest in their beliefs, for honest mistakes may occur in the course of transmission of the tradition down the generations. In such circumstances, and particularly where native courts below have differed an Appeal Court must review the evidence and draw their own inferences from the established facts, the demeanour of the witnesses before the trial court is little guide to the truth.”
Our Supreme Court relied on this case in the case of Ago Sai & Ors. Vs. Kpobi Tetteh Tsuru III  SCGLR 762, 764 holding (1) where their Lordships held that:
“It is well-settled that where in a land suit, the evidence as to the title to the disputed land was traditional and conflicting (as in the instant case). The surest guide was to test such evidence in the light of recent acts to see which was preferable.”
Relating the case cited supra to the case under consideration, the parties in their narration of their respective traditional history insisted each settled on the disputed land first after their people fought and conquered Botire and Akan and took over their lands according to the defendants.
On the plaintiff’s side, their version is that, they fought and defeated strange creatures in the forest and thus occupied the disputed land. What is in dispute is that whilst the plaintiff insists it owns the disputed land, the defendant says it put the plaintiff on the disputed land as caretaker. Now, to be able to ascertain which version is the truth, the respective traditional history should be measured with recent acts in living memory. The plaintiff tendered some documents to support its case.
In this case it is not in dispute that Mponua Stool is the Nifa-Stool of the Effiduase. Equally not in dispute is the fact that the dispute in this case is not one of a boundary dispute. The identity of the disputed land is also not in dispute. The plaintiff described the land in its writ of summons and tendered Exhibit ‘A’ to support it. The defendant’s case is that the plaintiff is on the land in dispute as its caretakers. Now, Exhibit ‘A’, the Plan shows Mponua land. Whilst the identity of Mponua land has not been described. It shows that the plaintiff has land. Exhibit ‘A’ is dated 24th August, 1927. It is an ancient document. Its existence is more probable than its non-existence.
Then there is Exhibit ‘B’ which is dated 18th October, 1926. This document depicts the sharing ratio of proceeds accruing from land. With half (½) to the plaintiff stool and half to defendant stool. The defendant’s stool half portion should also be shared into two and half to the Mamponghene.
Exhibit ‘C’ is a document dated 29th July, 1952. It is titled “MEMORANDUM OF AGREEMENT OF REVENUE THAT MAY BE ACCRUED FROM MPONUA LAND” (Our Emphasis)
In this document, it is stated that, “That on and after the date thereof, all land revenues sales of timber, mining, concessions and cocoa tributes that may be accrued from Mponua land (our emphasis again) after the Effiduase Local Council have deducted its appropriate share, the reminder should be divided into two equal parts, half for the Effiduase Stool and the remaining half for the Mponua Stool as old custom laid down.”
This document was executed by the then Effiduasehene and the then Mponuahene and witnessed by about fourteen Sub-Chiefs or Odikros. This is again an ancient document and its existence is more probable than not.
Exhibit ‘D’ is an agreement between the Chiefs of the Stools in this suit. It described the plaintiff’s Chief and defendant’s Chief as “Landowners”. Again, Exhibit ‘D’ was signed by the landowners i.e. Effiduasehene and Mponuahene.
Then there is Exhibit ‘E’ from the Chief of Mponua, Kofi Pepera II to the Government Agent, Mampong/Ashanti. Then there is Exhibit ‘2’, A Promissory Note agreeing to share land revenue with Mponuahene taking two-thirds and Effiduasehene taking one-third due to the Mponuahene since 29th
July, 1952. This document is dated 23rd June, 1955. These are authentic documents that cannot be grossed over. Their existence is more probable than not. Clearly, the plaintiff’s case is supported by documentary evidence, open and physical acts of ownership with regards to the land. All these in law strengthen the plaintiff’s case against the defendant. These documentary evidences are recent acts that show that plaintiff owned land, that is the land in dispute.
It has been held that documentary evidence should prevail over oral evidence. Thus, where documents supported one party’s case as against the other, the court should consider whether the latter party was truthful but with faulty recollection. See the case of Fosua & Adu-Poku Vs. Dufie (deceased) & Adu-Poku Mensah  SCGLR 310, 311. In the words of Atuguba, JSC;
“Given the high evidential potency of documentary evidence, in the eyes of the law, the trial Judge should have given cogent reasons for doubting the veracity of Exhibit ‘2’ being the undertaking given by the late Kwaku Poku…”
See also Section 26 of the Evidence Act, 1975 (NRCD 323) (a) and (b) which deals with estoppel by own statement or conduct.
That party or the successors in interest of that party; and
The relying person successors in interest of that person
Based on the Exhibits tendered by the plaintiff. The latter has been able to prove its claim on a balance of probabilities.
The last point is on the issue or arbitration.
This is a claim for declaration of title to land. The defendant has not counterclaim and the burden of proof is on the plaintiff. See the case of Jass Co. Ltd. Vs. Appau  SCGLR 265 holding (1) where their Lordships held that:
“The burden of proof is always put on the plaintiff to satisfy the court on a balance of probabilities in an action for a declaration of title to land. Where the defendant has not counterclaimed and the plaintiff has not been able to make out a sufficient case against the defendant, then the plaintiff’s claims would be dismissed. Whenever a defendant also files a counterclaim, then the same standard or burden of proof would be used in evaluating and assessing the case of the defendant, just as it was used to evaluate and assess the case of the plaintiff against the defendant.”
In this case, whilst the defendant insists that the issue as to the ownership of the land had been arbitrated upon, the plaintiff maintains that the issue of the ownership of the disputed land was not the subject of the arbitration. What is not in contention is that, the parties say the matter was arbitrated upon by the elders of Mampong Stool. It is the defendant who is insisting that the matter had been arbitrated upon by the Mamponghene and therefore it bears the evidential burden of proof even though it has not counterclaimed. In the case of In Re Ashalley Botwe Lands, Adjetey Agbosu and Others Vs. Kotey and Others [2003-2004] SCGLR 420, 425 holding (5) the headnotes reads:
“The Court of Appeal erred in holding that the defendants had no obligation to prove their defence. Under the provisions of the Evidence Decree 1975 (NRCD 323), the burden of producing evidence in any given case was not fixed, but shifted from party to party at various stages of the trial, depending on the issue(s) asserted or denied….”
In the words of Brobbey, JSC;
“the effect of Sections 11(1) and 14 and similar sections in the Evidence Decree, 1975 may be described as follows. A litigant who is a defendant in a civil case does not need to prove anything, the plaintiff who took the defendant to court has to prove what he claims he is entitled to from the defendant. At the same time, if the court has to make a determination of a fact or of an issue, and that determination depends on evaluation of fact and evidence, the defendant must realize that the determination cannot be made on nothing. If the defendant desires the determination to be made in his favour, then he has the duty to help his own cause or case by adducing before the court such facts or evidence that will induce a determination to be made in his favour.
The logical sequel to this is that if he leads no such facts or evidence, the court will be left with no choice but to evaluate the entire case on the basis of the evidence before the court, which may turn out to be only the evidence of the plaintiff. If the court chooses to believe the only evidence on record, the plaintiff may win and the defendant may lose. Such loss may be brought about by default on the part of the defendant. In the light of the statutory provisions, literally relying on the common law principle that the defendant does not need to prove any defence and therefore does not need to lead any evidence may not always serve the best interest of the litigant even if he is a defendant.”
Relating the case cited supra to the case under consideration, it is the defendant who is relying on the arbitration before the elders of Mampong as an estoppel saying the issue before us had been decided. The plaintiff had denied this fact. The only witness who can tilt the case i.e. the issue of arbitration is by calling one or more of the elders who sat on the matter to tell the court exactly what was decided or arbitrated upon. That is whether it was the oath issue or the issue of who owns the disputed land as between plaintiff and defendant.
Failure to call any member of the elders who arbitrated on the case, the defendant failed to prove that what went on before the elders of Mampong was the issue of ownership of the land in dispute. Consequently, the defendant failed to prove that there was a valid arbitration which had decided on the ownership of the land in dispute.
The trial Judge was right in rejecting the claim of binding arbitration. The issue of the arbitration was therefore properly evaluated.
From the foregoing, the trial Judge properly evaluated the evidence on record and came to the right conclusion.
There is no merit in grounds (1) and (2) of the original grounds of appeal and they are accordingly dismissed.
This brings us to ground (v) damages of Gh¢40,000.00 which the defendant complained is excessive and arbitrary.
In action for declaration of land, general damages for trespass is always nominal where no damage is proved. Since the plaintiff did not prove any damage it suffered due to defendant’s action, general damages in the sum of GH¢40,000.00 is excessive. Consequently, the award of GH¢40,000.00 to plaintiff is hereby set aside. In its place, the plaintiff is awarded Gh¢10,000.00 general damages.
On ground (vi) the cost of GH¢10,000.00 which defendant had complained is excessive. The award of cost is regulated by law. Section 74 of the High Court (Civil Procedure) Rules, 2004 C. I. 47.
Section 74 (4) provides that:
“In assessing the amount of costs to be awarded to a party, the court may have regard to the following:
a. The amount of expenses including travel expenses, reasonably incurred by that party or that party’s lawyer or both in relation to the proceedings.
b. The amount of court fees paid by that party or that party’s lawyer in relation to the proceedings.
c. The length and complexity of the proceedings.
d. The conduct of the parties and their lawyers during the proceedings and
e. Any previous order as to costs made in the proceedings.”
In this case, the plaintiff’s representative who testified for plaintiff was cross-examined for over a year. Clearly, the award of Gh¢10,000.00 cost is not excessive. This ground of appeal fails and it is accordingly dismissed.
From all of the foregoing, the appeal fails except the general damages that is reduced from Gh¢40,000.00 to Gh¢10,000.00.
Appeal is dismissed accordingly.