• IN THE SUPERIOR COURT OF JUDICATURE
  IN THE COURT OF APPEAL
  CAPE COAST - A.D 2018
  

GLORIA CUDJOE - (Plaintiff/Appellant)

vs.

SAMUEL KOFI FRIMPONG - (Defendant/Respondent)

JUDGMENT

---

DOMAKYAAREH (MRS), J. A.

1. This is an appeal against the judgment of the High Court, Cape Cost dated 21^st October, 2016. The facts that culminated in this appeal are as follows:

On 18^th April, 2013, the plaintiff/appellant (hereinafter called the appellant), filed a Writ of Summons against the defendant/respondent (hereinafter called the respondent) claiming the following reliefs.

“(a) Declaration of title to the land in dispute

(b) Recovery of possession of the land in dispute

(c) Perpetual injunction restraining defendant, his agents, servants, privies and all persons claiming under and/or through him, from further interfering, in any manner, with plaintiff’s ownership, possession and or control of the said disputed land or any part thereof.

(d) Special damages

(e) Damages for trespass

(f) Costs”

 

 2. The basis of these claims, as deduced from the Statement of Claim are that the appellant acquired the land in dispute, designated as Plot No.72, situate at Odupong Ofaakor, Kasoa within the Awutu-Senya District in the Central Region from NAI ODUPONG AWUSHIE TETTEH II, Head of Anona Family of Ofaakor and Chief of Odupong Ofaakor Stool, Kasoa by a lease dated 1^st March 2007. The appellant averred that she registered her interest in the land with the Lands’ Commission, Cape Coast and thereafter kept building materials on the land and constructed a fence wall around the land in dispute. She conducted a search at the Lands’ Commission, Cape Coast, and the results indicated that the land was not encumbered in any way or at all. The appellant contended that she enjoyed undisputed effective possession of the land in dispute until recently when the respondent trespassed unto the land by pulling down the fence wall, and used the appellant’s materials on the land to commence putting up- a store complex on the land despite protestations from her.

 

The appellant further contended that following the respondent’s trespass unto the land, she conducted another search at the Lands’ Commission Cape Coast and the land is still registered in her name. The appellant averred that the workers of the respondent refused to disclose the identity of the respondent and continued working busily, day and night on the land in dispute. She therefore took the legal action to compel the respondent and his assigns to leave the land in dispute.

 

3. The respondent per his Statement of Defence, denied all the claims of the appellant but made no counterclaim against her. He denied that the stores he was constructing were on Plot No. 72 as alleged by the appellant. On the contrary he averred that his said developments were rather on a piece or parcel of land situate at Sector 1, Block C Plot No. 73 at Kasoa in the Senya District of the Central Region. The respondent averred that he acquired the said Plot No. 73 by a lease Agreement dated 5^th November 1999 which he registered at the Central Regional Lands Commission, from NAI ADUPONG AWUSHIE TETTEH II, the Head of the Anona Family of Ofaakor and Chief of Odupong Ofaakor Stool, Kasoa; in other words, the same vendor as the appellant. The respondent also averred that before acquiring the land, he conducted a search at the Lands Commission, Cape Coast and the results indicated that the land was not encumbered in any way or at all.

 

The respondent further averred that he went into effective possession and established a Saw Mill Complex on the plot. He denied that the appellant ever erected a fence wall around that plot or put any building material on it that was pulled down or used by him. The respondent averred that prior to the ongoing development he had applied for and obtained clearance from the Assembly and the Lands Commission, Cape Coast in 2001. He said his plot No. 73 could not be the same as the appellant’s plot no 72.

 

4. The case went through normal trial and at the end of the day the learned trial High Court judge entered judgment for the respondent. He anchored his judgment on two main reasons, namely, first that the plot in dispute which both parties were laying claim to was situate outside both Plot No. and Plot No. 73, and secondly that the respondent was in a long, sustained possession of the plot in dispute and hence had priority of title to that of the appellant.

 

The appellant was obviously dissatisfied with this judgment which as aforesaid was delivered on 21^st October 2016. He quickly lodged this appeal per his Notice of Appeal filed on 7^th November 2016 against the whole judgment. The reliefs being sought from this court by the appellant are three fold, to wit:

(a) To reverse the judgment of the court below and enter judgment for the plaintiff/appellant on the reliefs endorsed on the writ of summons

(b) To set aside the cost the court below awarded against the plaintiff/appellant and

(c) An order for cost against the defendant/respondent in favour of the plaintiff/appellant.

 

The appeal is anchored on a sole ground of appeal, namely the omnibus ground that the judgment is against the weight of the evidence. This sole ground of appeal was supported by the open door ground that additional grounds may be filed upon receipt of the Record of Appeal. The appellant did not take advantage of this opening as no additional grounds have been filed in this appeal.

 

Evaluation of The Appeal:

5. It is trite learning that every appeal is by way of rehearing. This is anchored in both Statute and a plethora of decided cases. Rule 8(1) of the Court Of Appeal Rules, 1997, C.I. 19 directs that “Any appeal to the court shall be by way of rehearing and shall be brought by a notice referred to in these Rules as ‘the notice of appeal’”. Popular cases such as KOJO TUAKWA V KWEKU BOSOM (2001 – 2002) SCGLR 61; AGYEIWAA V P & T CORPORATION [2007-2008] SCGLR 985 at 989; AWUKU V MUMUNI & SULEMANA [2014] 70 GMJ 144; BROWN V QUARSHIGAH [2003 -2004] SCGLR 930; and KOGLEX [NO.2] V FIELD [2000] SCGLR 175, confirm that appeals are by way of rehearing. Also see DJIN V MUSAH BAAKO [2007 – 2008] 1 SCGLR 686; and AYEH & AKAKPO V AYAA IDDRISU [2010] SCGLR 891 which give directions and spell out the ambit of the omnibus ground of Appeal.

 

In the TUAKWA case cited supra, this is what was posited by Sophia Akuffo JSC (as she then was) at page 65 of the report:

“Furthermore, an appeal is by way of a rehearing, particularly where the appellant alleges in his notice of appeal that the decision of the trial court is against the weight of the evidence. In such a case, although it is not the function of the appellate court to evaluate the veracity or otherwise of any witness, it is incumbent upon an appellate court, in a civil case, to analyse the entire record of appeal, take into account the testimonies and all documentary evidence adduced at the trial before it arrives at its decision, so as to satisfy itself that, on a preponderance of the probabilities, the conclusions of the trial judge are reasonably or amply supported by the evidence”.

 

In DJIN VRS. MUSAH BAAKO [2007 – 2008] 1 SCGLR 686, the Supreme Court held per Holding 1 that:

“Where (as in the instant case) 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.”

 

6. The appellant in his Written Submission sought to comply with the directives in DJIN V MUSAH BAAKO cited supra; i.e to clearly and properly demonstrate to this court that there are certain pieces of evidence on the record, which if applied in her favour, could have changed the decision in her favour and or that certain pieces of evidence have been wrongly applied against her.

 

Counsel started his submissions by narrating the facts of the case as per the pleadings of the parties and the evidence they proffered in support of their respective cases and submitted that the trial judge failed to properly evaluate the evidence of PW1 and PW2. PW1 was the father of the appellant. He testified as to the part he played in the purchase of plot No. 72 including the verification of the title of the lessor. PW2 was a brother of the appellant and also testified as to how Plot No 72 was acquired. Counsel also referred to the evidence of PW4, who shared a boundary with the appellant as supporting the fact that the land in dispute was plot No. 72. Counsel emphasised that the evidence of PW4 was compelling and truthful. Counsel also submitted that PW5 a Town and Country Planning Officer of Awutu-Senya East Municipal Assembly (erroneously referred to by Counsel as a Town and Country Planning Officer of Kasoa), confirmed the evidence of PW4 and the actual identity of the land on the ground as being plot No 72. Counsel therefore contended that the trial judge erred in rejecting the evidence of PW4.

 

7. Counsel for the appellant also accused the trial judge of over relying on some aspects of the evidence the Surveyor (CW1) relating to the fact that the title documents submitted by both parties for the survey did not cover the land in dispute, rather than the statement that the land in dispute was within the cadastral plan of the appellant. Counsel therefore submitted that the finding by the trial judge that the land in dispute fell outside the documents of the appellant was not supported by the evidence on record. Indeed, Counsel referred to the case of SEIDU MOHAMMED VRS. SAANBAYE KANGBEREE [2012] 2 SCGLR 1182 to support the position of the law that a court of competent jurisdiction is not bound by expert evidence and submitted that CW1 was not a reliable witness. In the said case, the Supreme court after evaluating the evidence of a court expert, a surveyor for that matter, stated that the evidence was so porous, weak, inconsistent, contradictory and so perverse that the trial judge ought not to have relied on same.

 

8. Another complaint of the appellant is that unlike herself, the respondent did not register his documents and that this was confirmed by PW3, a Lands Officer at the Lands Commission in Cape Coast. Counsel submitted that this was at variance with the pleadings of the respondent that he registered his plot No. 73 at the Central Regional Lands Commission. Counsel submitted that in his opinion it was very strange that the learned trial judge discounted this fact and held that the registration or non-registration of the lands of the parties in the light of the evidence and facts provided could not be the basis for the determination of the issue of ownership of the land in issue since a completed registration of each other’s said title deeds could not have raised any conflict by itself.

 

Counsel also submitted that because the appellant had a valid lease, it was wrong for the learned trial judge to invoke the principle of possession to enter judgment for the respondent.

 

9. Counsel also contended that the Building permit of the Respondent approved on 26^th June 2002 could not be genuine as PW5 who had been working at the Assembly from 2012 testified that he had no personal knowledge of how the respondent acquired the building permit. Counsel continued his assault on the judgment by contending further that “in order to avoid difficulty in explaining the incongruence in the dates, the respondent refused to tender his lease, the site plans and the cadastral plans to escape being cross-examined on them”. He submitted that in the absence of plausible explanation, the inference is that the respondent added together two (2) different sets of documents from two (2) different transactions affecting two (2) different parcels of land to lay claim to a completely different plot of land being the land in dispute belonging to the appellant”. Counsel submitted that the learned trial judge failed or refused to make findings of fact on this submission which was made before him. Counsel therefore concluded that the learned trial judge thus made an improper evaluation of the evidence before him.

 

10. Counsel also complained that the finding by the trial judge that the respondent had been in possession of the land since 1999 was perverse as there was no evidence on record to support that finding of fact. He pointed out that PW2 denied this under cross-examination. Counsel further contended that the building permit issued in 2002 cannot be proof that the respondent had been in possession of the land since 1999. Counsel submitted that the inference drawn on the possession by the respondent was based on conjecture whereas S.18(2) of the Evidence Act, 1975 (Act 323) directs that an inference should be a deduction of fact that may logically and reasonably be drawn from another fact or group of facts found or otherwise established in the action.

 

Counsel submitted that from the evidence of PW1, PW2 and PW4, the respondent had trespassed unto the appellant’s land and the trial judge ought to have so found and held.

 

Counsel also took issue with what he alleged was an attempt by the respondent to rely on limitation or adverse possession when he did not plead same. This is on account of the fact that the respondent’s Lawful Attorney testified that the respondent acquired the land about 15 years prior to 2015, the time she testified in court.

 

The essence of the lengthy 43-page Written Submission of the appellant on one ground of appeal is that the judgement of the trial judge should be reversed in favour of the appellant for all the reliefs that were endorsed on the writ of summons including special damages for the respondent’s use of the land.

 

11. Counsel for the respondent naturally defended the judgment of the trial court in his Written Submissions. Narrowing the case to the real issue that was before the trial court, namely the identities of Plot nos. 72 and 73 on the ground and whether any of them corresponded with the land in dispute on the ground, Counsel submitted that the appellant who claimed plot No.72 and averred that it tallied with the land in dispute on the ground, said she constructed a fence wall around it, kept building materials on it and engaged a caretaker to weed and keep the plot tidy. He submitted that no evidence was led to prove these material facts of identification and therefore the trial judge was right to hold that “it could not be proved that the defendant destroyed any fence wall or building material of the plaintiff on the disputed land”. We cannot fault the learned trial judge on this finding. We have combed through the entire Record of Appeal with a fine comb and neither PW1, PW2 or PW4 who claim to know the physical location of the plot in dispute testified as to any fence wall or building materials placed on same. They therefore remain unproved allegations in the Statement of Claim which are critical to the identity of the land in dispute. PW2 and PW4 testified that the care-taker was arraigned before court for acts of trespass on the said land but no court processes or documents were tendered to establish the veracity of this claim. The material fact of the care taker and his subsequent arraignment in court for trespass was not even pleaded. The trial judge was entitled to ignore same as being a departure from the pleadings even if same were proved.

 

12. Counsel rightly submitted that the parties shifted their contest for the land in dispute to their title deeds. This necessitated the appointment of a Court Expert, a Licenced Surveyor CW1 that was mutually agreed to by both parties. At pages 64 -65 of the ROA, we find this from the evidence in-chief of CW1:

“We used GPS instrument to do the work. The defendant had built on the land so we detailed the said building. We then did a composite plan of the area …. The area being claimed by the two parties is completely outside the site plans of any of them. … The land being claimed is bigger than a plot within the layout. It could be two. I did not find out whether the disputed area is being claimed by any 3^rd party”.

 

With this testimony by the Court Expert which was borne out by the Composite Plan found at page 174 of the ROA, it is difficult, if not impossible to decipher how come Counsel for the appellant had devoted 43 pages to demonstrate that the disputed plot was plot No. 72.

 

13. On the contention that the trial judge failed to properly evaluate the evidence of PW1 and PW2, this cannot be true, as the two witnesses, father and brother respectively of the appellant contradicted one another both in their evidence-in-chief and under cross-examination. Under cross-examination at page 77 of the ROA, this is what transpired with PW1:

“Q. Mr. Cudjoe, in 2007 when you went to the site, did you notice the Kasoa Police Station which is close to the traffic light?

 

A. Yes my Lord

 

Q. Did you also notice Justab Clinic, which is very close to the site in issue?

 

A. Yes I did. There was a clinic around but I did not take notice of the name

 

Q. Did you also notice that they were selling timber boards and sawmill products between the clinic and the Kasoa Police Station – timber market?

 

A. Yes I notice that”

 

At page 82 of the ROA, PW2 after testifying that the appellant bought the land in 2006, continued as follows:

“After sometime we visited the land and realised that someone had set up a sawmill on the land. We never saw the person who set up the sawmill on the land. We reported the incident to the police. My father reported the caretaker to the police. … The caretaker was arrested by the police. He was arranged before court. …”

 

PW1 had earlier testified at page 72 of the ROA that the appellant bought the land in 2007 which was one (1) plot measuring 70’ by 100’. Under cross examination, he admitted the existence of the sawmill at the time they first went to the Plot. PW2 on the other hand said it was sometime after the plot was purchased that they realised someone had established a sawmill on it.

 

Hear PW2 under cross-examination at page 84 – 85 of the ROA.

 

“Q. Your father (PW1) told the court that you sent your own surveyor to the land and he prepared the site plan which you used to conduct the search?

 

A. That is not true. It was the chief who gave us the site plan

 

Q. According to your father, it was after the initial search that you went to the chief who gave you another site plan, which was plastic or laminated. So what you are telling the court is not true.

 

A. I don’t remember”

 

14. With these contradictions, together with the fact that none of them testified to the fence wall constructed around the plot and building materials placed on same, the learned trial judge was right in placing little probative value on the evidence of PW1 and PW2 as far as the disputed land is concerned. For plot No. 72, but for the fact that PW3 and PW5 confirmed that the appellant was the owner of same from the official records in the custodies of their respective Employers, there would have still been little probative value on the evidence of PW1 and PW2 since they failed to prove the identifying features of the land as pleaded by the appellant. The learned trial judge who observed them first hand in court said of PW1 that he sounded rather unconvincing, nay unsuccessful in his attempt to explain the differences in the dates on their lease indenture and the accompanying site plan, being 15^th March, 2007 for the indenture and 16^th November 2006 for the site plan, all relating to the same piece of land.

 

 

 

15. Counsel for the appellant described the evidence of PW4 as compelling. What is the evidence on record that Counsel describes as compelling? PW4 is a boundary neighbour of the appellant. She did not describe the disputed land as one with a fence wall with building materials on it which had recently been demolished. She said she acquired her plot nearly sixty (60) years ago and that she got to know the appellant when she acquired her plot next to her’s some fifty-five (55) years ago. She tendered copies of her own title deeds in evidence as Exhibit ‘D’ found at page 190 of the ROA. Exhibit ‘D’ had no date, no amount stated as consideration, no jurat clause even though six (6) out of the eight (8) signatories thumb printed the lease document. It had no official stamp except that of the solicitor who prepared the document. The site plans were dated 28^th September 1988 but did not indicate any specified numbered plot of land. We agree with the trial judge that her evidence and documents were useless both with respect to the value she placed on them and the issues she was required to testify about. The documents were definitely not of any evidential value as far as the issue at stake was concerned.

 

16. According to the trial judge, her evidence portrayed her as one who did not appreciate the issues at stake. The best that could happen to her evidence therefore was for the trial judge to disregard same and place no value on it. Even though PW5 brought documents which confirmed that PW4 was the owner of plot 71, this plot was not in contention and did not in any way prove that the land in dispute was plot No 72.

 

Both PW3 and PW5 confirmed that from their records the appellant was the owner of plot 72 while the respondent was the owner of plot 73. From the Composite Plan at page 174 of the Record of Appeal, these two plots were not contiguous in that there is a lane/road between them. In other words, they do not share any common boundary.

 

17. On the complaint that the trial judge over relied on the evidence of CW1, Counsel for the respondent submitted that the Survey Report was based on the survey instructions submitted by the parties. The respondent submitted the following documents: -

 

Indenture with registration no LVB/CR/881/2002 with Lands Commission Serial No. 133/2000 with all the attachments including the site plan. Counsel for the respondent pointed out that copies of all these documents were served on counsel for the appellants. Counsel submitted that these very documents, including the Building Permit and Receipts were filed in court and also furnished to the appellant when the respondent opposed the appellant’s application for interlocutory injunction in the suit. (See pages 27 to 40 of the ROA as well as pages 47 to 50 of the ROA). Counsel submitted if Counsel for the appellant had any doubt, he ought to have challenged the Lawful Attorney for the respondent on the title deeds of the respondent which he had in his possession but the failed to do so. The contest between the parties was a plot on which a store complex is sited. While appellant said that plot was plot No. 72 measuring 70’ by 100’ according to PW1, respondent said it was plot No. 73 measuring 90’ by 120’ according to the site plan at page 33 of the ROA. CW1 testified that the plot in dispute was more than 1 plot and that it could be two plots and the Composite Plan at pages 61 and 174 clearly shows plots 72 and 73 as single plots.

 

18. The contention that the respondent refused to tender his lease, site plans and cadastral plan in order to escape being cross-examined on same carries no weight. This is because even though it is true that the Lawful Attorney of the respondent did not tender these documents when she testified in court; yet all these documents were in the possession of the appellant and her counsel. As already indicated these very documents were furnished to counsel for the appellant on two occasions, firstly as annexures to the Affidavit in Opposition to the Application for Interlocutory Injunction (pages 27 to 40 of the ROA), and secondly when the parties filed their instructions to CW1 the Surveyor (pages to 50 of the ROA). If Counsel for the appellant detected any incongruencies in those documents, nothing prevented him from confronting the respondent’s Lawful Attorney on same under-cross examination but this he failed to do. In any event, the evidence of PW3 and PW5 confirmed that the respondent’s title to plot No. 73 was intact.

 

19. Counsel for the respondent also pointed out that there was evidence to support the finding by the trial judge that the respondent had been in possession of the land since 1999. Paragraph 5 of the respondent’s Statement of Defence indicates that his lease agreement is dated 5^th November 1999 for plot No. 73 at Sector 1 Block C. PW3 confirmed in his evidence-in-chief at page 92 of the ROA that there was a recording to that effect in the Records of the Lands Commission at Cape Coast. He could not tell whether Plot No 73 was registered because as at the year 2000, the Cape Coast Lands Commission was not registering leases. They only made recordings of the documents and handed the documents back to the applicants to go to either Sekondi/Takoradi or Accra for the registration. The Respondent’s Lawful Attorney, an illiterate testified that they set up a sawmill on the land which she personally operated. Under cross-examination she maintained her testimony that the plot was acquired about 15 years earlier. Since she gave her evidence on 13^th October 2015. The 15 years is more probable than not counting from November 1999. Even though this was challenged under cross-examination, the respondent’s Lawful Attorney remained unshaken and maintained her ground. We find that this is borne out by the record.

 

20. The contention that the trial judge should not have entered judgment for the respondent is not supported by the evidence on record. As already stated the appellant did not adduce any evidence to prove that she constructed a fence wall which was pulled down and her building materials used by the respondent. In any event, the averment was that it was Plot No. 72 that was so fenced with building materials on it. The disputed plot turned out to be different from Plot No. 72. The appellant has relied heavily on the concluding paragraph of the Survey Report found at page 62 of the Record of Appeal. The said paragraph is reproduced verbatim as follows: -

 

“On the disputed land, the defendant has put on a carpentry workshop and stores. Superimposition of lay-out site plans provided by the parties does not fall on the disputed land, but the cadastral site plan fall (sic) falls on the disputed land. Thank you”. The apparent contradiction in this paragraph was clarified by the Surveyor CW1 during his cross-examination by Counsel for the appellant found at pages 66-68 of the ROA. Relevant portions are reproduced here under:

 

“Q. If we go by the composite plan you tendered as Exhibit “CE1” the land the plaintiff showed you on the ground, fell within her layout plan?

 

A. That is not correct

 

Q. Have a look at the composite plan again. The area showed to you by the plaintiff on the ground is edged green?

 

A. Yes my Lord

 

Q. The superimposition of the plaintiffs site plan is also edged green?

 

A. Yes my Lord

 

Q. So what the plaintiff showed to you on the ground falls in line with her registered cadastral plan?

 

A. Yes my Lord

 

Q. And your evidence is that the cadastral plan is superior to the layout plan?

 

A. Yes my Lord

 

Q. You agree with me that the disputed area falls within the plaintiffs’ registered cadastral plan?

 

A. No my Lord. If you look at the Latitude Scale 1/2500 the Latitude is 313000 to 314000. The Longitude … It is completely outside the area. Both the plaintiff’s land and also the defendants land lie completely outside the disputed area”.

 

21. An examination of the Composite Plan at page 174 of the ROA marked Exhibit “CW1A” reveals that Plots Nos. 72 and 73 lie below Latitude 313000 while the disputed plot lies almost midway between latitudes 313000 and 314000 confirming that the disputed area is indeed completely different from plots Nos. 72 and 73

 

 Going on with the cross-examination, we find from P.67 et seq of the ROA the following: -

 

“Q. Your evidence is that the disputed area is neither plot 72 nor No. 73?

 

A. No my Lord

 

Q. I am putting it to you that the plaintiff’s layout plan is in line with her cadastral plan?

 

A. it is not. Repeat Not

 

Q. In your evidence you said that the defendant has buildings on the disputed land?

 

A. Yes my Lord

 

Q. Did it come to your knowledge that the defendant put up those buildings after the matter was reported to the police by the plaintiffs?

 

A. No my Lord”

 

Under cross-examination by Counsel for the respondent, this is what is captured at page 71 of the

 

Record of Appeal:

 

“Q. From your report you confirm the layout of plots No. 72 and 73 as submitted by the parties; is that so?

 

A. Yes my Lord

 

Q. And do the site plans of 72 and 73 fit into the composite plan?

 

A. No my Lord

 

Q. It is therefore my understanding that the layout we have here (72 and 73 marked brown and violet respectively) is quite entirely different from the composite plan.

 

A. Yes my Lord

 

Q. But the disputed land edged red falls within the yellow edging i.e the plot of the defendant?

 

A. Yes my Lord

 

Q. And you confirm that the defendant has developed or put up a store on the disputed land?

 

A. Yes my Lord

 

Q. And finally you are reporting that the land in dispute does not belong to the plaintiff and also does not belong to the defendant?

 

A. Yes my Lord”

 

 This settles the identity of the plot in dispute. It is neither plot No. 72 nor plot No. 73. See the case of EFFISAH V ANSAH [2005-2006] SCGLR 943 at 960 where the Supreme Court Per Georgina Wood JSC (as she then was) stated that:

 

“… 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.”

 

22. The submission that because the appellant had a valid lease, it was wrong for the learned trial judge to invoke the principle of possession to enter judgment for the respondent. Is not tenable having regard to the evidence on record. The record clearly indicated that the disputed land was neither Plot No 72 nor Plot No 73. Therefore, the party in possession has a superior title to the property than someone fighting from outside unless that person can show a better title. The appellant failed to demonstrate a better title in this case. See MRS ELIZABETH OSEI (Substituted by PORTIA GILARD) V MADAM ALICE EFUA KORANG [2013] 58 GMJ 1

 

Counsel also contended that the Building permit of the Respondent approved on 26^th June 2002 could not be genuine as PW5 who had been working at the Assembly from 2012 testified that he had no personal knowledge of how the respondent acquired the building permit. It is obvious that PW5 could not have had personal knowledge of a document approve in 2002 when he was so an officer of the Assembly at that time. But during his testimony he identified the Building Permit as coming from the Assembly and approved by same. See page 105 of the ROA.

 

23. Counsel for the appellant referred to S.18(2) of the Evidence Act, 1975 (Act 323) which directs that an inference should be a deduction of fact that may logically and reasonably be drawn from another fact or group of facts found or otherwise established in the action and submitted that the inference of possession drawn by the trial judge based on the approved 2002 building permit granted to the respondent was based on conjecture. This submission is not borne out by the Record. The respondent averred in his Pleadings that he has constructed stores on the disputed property having previously operated a sawmill on same. CWI saw the structures when he conducted the survey. PW1 saw the sawmill when they first went to their Plot No 72. PW1, PW2 and PW4 all admitted the existence of the stores. These are the facts on which the inference of possession on the part of the respondent was drawn.

 

24. Counsel submitted that from the evidence of PW1, PW2 and PW4, the respondent had trespassed unto the appellant’s land and the trial judge ought to have so found and held. The evidence of PW1, PW2 and PW4 were all on Plot No 72 which turned out to be completely different from the plot in dispute. Even as a matter of logic, evidence on Plot No 72 cannot be used as a basis for trespass on an entirely different plot.

 

25. Counsel took issue with what he alleged was an attempt by the respondent to rely on limitation or adverse possession when he did not plead same because of the evidence of the respondent’s Lawful Attorney. The respondent did not plead limitation. He did not rely on limitation nor attempt to rely on limitation. The respondent’s Lawful Attorney who was an illiterate only testified to facts that she knew that the respondent acquired the plot in dispute about 15 years prior to the date she was testifying in 2015 which corroborates the respondent’s averment that he acquired the plot in November 1999.

 

26. The foregoing evaluation of the evidence on record clearly demonstrates that the judgment appealed against is totally supported by the Evidence on Record. This court finds no reason to disturb the said judgment dated 21^st October 2016. The appeal is therefore dismissed in its entirety and the judgment of the High Court, Cape Coast dated 21^st October 2016 as aforesaid affirm