LILIAN AMANOR BOAKYEWAA vs K.BOADU
  • IN THE SUPERIOR COURT OF JUDICATURE
    IN THE COURT OF APPEAL
    KOFORIDUA - A.D 2018
LILIAN AMANOR BOAKYEWAA -(Plaintiff/Appellant)
K. BOADU - (Defendant/Respondent)

DATE:  29 TH MAY, 2018
CIVIL APPEAL NO:  H1/21/2017
JUDGES:  K. A. ACQUAYE JA (PRESIDING), S. K. GYAN JA, M. M. AGYEMANG (MRS.) JA
LAWYERS:  MR. ISAAC OKYERE DARKO FOR PLAINTIFF/APPELLANT
MR. FRANCIS POLLEY FOR DEFENDANT/RESPONDENT
JUDGMENT

AGYEMANG JA:

This is an appeal against the judgment of the Circuit Court Koforidua, delivered on the 11th day of July, 2016. The plaintiff/appellant (hereafter referred to alternately as the plaintiff, or the appellant) seeks a setting aside of the judgment of that court entered in favour of the defendant/respondent (hereafter referred to alternately as the defendant, or the respondent).

 

The matters that have given rise to the appeal are simply these:

 

The plaintiff, a resident of Koforidua brought suit against the defendant, a resident of Asokore. Both places are in the Eastern Region of Ghana.

 

It was the case of the plaintiff both in pleading and in evidence, that she acquired the land in dispute in 2011 upon a lease granted to her by the Eastern Regional Lands Commission. She described the disputed land as: Plot No. F8 situate at Sector 10, Block C Koforidua, bounded on the North by an open space, measuring 80ft more or less; on the East, by a proposed road measuring 130ft more or less; on the South by a proposed road measuring 40ft more or less; on the West by Plot No F7 measuring 120 feet more or less.

 

It was her evidence that she immediately went into possession by having trees on the land uprooted. She then placed thereat, cement blocks as well as stones. She alleged that sometime later, she went onto the land to find that someone had started developing same, and that the person who had shunted her cement blocks into a corner, used her stones for his own development, and used the trees she had caused to be uprooted for charcoal. She alleged that upon her investigation, she found the defendant to be the one who had done all these. Thus did she commence action against the defendant at the court below, seeking a declaration of title to the said parcel of land, damages for trespass, and an order of perpetual injunction. The main thrust of the plaintiff’s case was that she had been granted land by the outfit in which the land was vested: the Government of Ghana acting per the Eastern Regional Lands Commission. She thus tendered the lease document she obtained from that outfit in proof of her title thereto. It was admitted in evidence as exhibit A.

 

The defendant who admitted in pleading that the land in dispute formed part of the New Juaben Lands vested in the Government of Ghana in trust for the New Juaben Stool, denied the plaintiff’s claim. The crux of his case was that he obtained the land from its traditional owners in 2009 and that he went into possession by reclaiming it (as it had been a rubbish dump), constructing a concrete base for a container and placing a container on it. He also alleged that he connected electricity and water to the premises. Although he denied that the plaintiff was on the land at the time he went onto it, he admitted during cross-examination that he saw the plaintiff’s cement blocks, which he alleged were placed on an adjoining land.

 

The issues set down for determination included: whether or not the land was leased to the plaintiff in 2011 by the Government of Ghana acting by the Eastern Regional Lands Commission; whether or not the said lease was registered, whether or not the defendant’s alleged grantor had title to convey to another, and whether or not the defendant trespassed onto the plaintiff’s land.

 

After hearing the parties, the learned trial judge entered judgment for the defendant, dismissing the claims of the plaintiff for a declaration of title and for damages for trespass as well as the relief of perpetual injunction sought in the suit.

 

It is against the said judgment that the instant appeal has been brought on the sole ground that the judgment was against the weight of the evidence led before the court.

 

It is now trite learning that a complaint of this nature invokes the jurisdiction of this court set out in Rule 8(1) of the Court of Appeal Rules CI 19, to rehear the matter. This rehearing involves evaluating the evidence led, both oral and documentary, and coming to our own conclusions, in support of or against the trial court’s findings, see: Oppong Kofi and Ors v. Attibrukusu III [2011] 1 SCGLR 176 also: Tuakwa v Bosom [2001-2002] SCGLR 61. The appellant who makes this complaint has a duty to point out pieces of evidence which were wrongly evaluated by the trial court leading to a wrong conclusion, in that had they been properly applied in his favour, the conclusion arrived at by the trial judge would have been different see: Djin v Musa Baako [2007-2008] 1 SCGLR 686.

 

We exercise our jurisdiction mindful of this caveat: that an appellate court must be slow to set aside the primary findings of the trial judge who has the exclusive jurisdiction to make such, unless among other factors, there is revealed in the judgment some blunder or error in the evaluation of the evidence led by the trial court resulting in a miscarriage of justice, see: Koglex Ltd No.2 v Field [2000] SCGLR 175.

 

This appeal raises a simple issue and we will make short work of it.

 

The learned trial judge held that the plaintiff had failed to prove that the land in dispute formed part of the New Juaben Lands that were vested in the Government of Ghana. She further held that in failing to call her lessors being material witnesses to testify as to their right to convey the land in dispute, the plaintiff had failed to discharge the burden of proof which she assumed. These holdings with respect, find no support from the evidence on record. The learned trial judge, who appeared to have done extensive research in matters relating to proof of title to land, somehow missed the relevant matters that should have guided her to a proper and supportable judgment.

 

The evidence led in the suit was with regard to two matters: title to the land, and acts of possession. With regard to the former, since the plaintiff sought title to the land in dispute, what she had to prove was her root of title, mode of acquisition including purchase, and acts of possession, see: Mondial Veneer Gh Ltd v Amuah Gyebu XV [2011] 1 SCGLR 468; also Abbey and Ors v Antwi [2010] SCGLR 17.

 

In the instant case, the plaintiff tendered a lease obtained in 2011 from the Eastern Regional Lands Commission.

 

Contrary to what the learned trial judge held, the capacity of the said lessors to convey the land described in the lease which is the land in dispute to the plaintiff, was admitted by the defendant in pleading. The said admission was contained in paragraphs 3 of the defendant’s pleading, which unequivocally admitted paragraphs 3 and 4 of the plaintiff’s amended statement of claim.

 

The said paragraphs read: “3.The plaintiff says New Juaben Lands of which the land in dispute forms part are vested in the Government of the Republic of Ghana in trust for the New Juaben Stool” (my emphasis).

 

4. The government agency tasked with the administration of New Juaben Lands on behalf of the Government of Ghana is the Eastern Regional Lands Commission.”

 

What is the effect of an admitted pleading?

 

The defendant’s admission of the said paragraphs was unequivocal with respect to the plaintiff’s averment that the land in dispute formed part of the stool lands vested in the Government and furthermore, that the Eastern Regional Lands Commission had the capacity to convey the Government’s vested lands of which the land in dispute formed part. This admission was in terms of Orders 11 R 13 and 23 R1 of The High Court (Civil Procedure) Rules CI 47 which read: “Order 11 R13.

(1): ‘Subject to subrule (4) of this rule, any allegation of fact made by a party in the party's pleading shall be deemed to be admitted by the opposite party unless it is traversed by that party in pleading or a joinder of issue under rule 14 operates as a denial of it”…

 

“Order 23 R1: ‘A party to a cause or matter may give notice, by that party's pleadings, or otherwise in writing, that the party admits the truth of the whole or any part of the case of any other party.”

 

The combined effect of these is that the truth of an allegation of fact is admitted in pleading if the opposing party does not deny it, or even traverse it generally.

 

The effect of such admission is to relieve the other party of the burden of proving what is asserted.

 

In the instant matter, the plaintiff’s pleading regarding the vesting of the land in dispute in the Government of Ghana, and that such lands were to be administered by the Eastern Regional Lands Commission, her lessor, was admitted by the defendant unequivocally, see: Pomaa and Ors v Fosuhene [1987-88]1GLR 244. Thus, contrary to the holding of the court below, that admission was sufficient to relieve the plaintiff of the burden of adducing evidence in proof of the fact that her lessor: the Eastern Regional Lands Commission, had the right to convey the land to her, see: Kai v. Amarkye [1982-83] 2 GLR 817.

 

In spite of the clear admission of the right of the Eastern Regional Lands Commission (the plaintiff’s lessor) to grant the land in dispute, the defendant maintained that the said outfit could not grant land possessed by another. His possession he alleged, was founded on a prior grant obtained by him from the traditional owners of the land.

 

It seems to us that it was for the defendant to call evidence to establish that in spite of his admission of the right of the plaintiff’s lessor to convey the disputed land, his own grantors had the right to convey what they purported to grant to him in respect of the same piece of land. Thus, the burden of proof, contrary to what the learned trial judge held, did not remain on the plaintiff who had been relieved of the burden of proving what had been admitted, but on the defendant whose claim of right ran counter to his own admission of the right of the plaintiff’s grantor. The defendant, while he admitted the right of the plaintiff’s lessor to convey the land in dispute, challenged the plaintiff’s pleading that she had been first allocated, and then subsequently granted a lease of the land in dispute. His reason for the said denial in pleading was not what he later contended at trial (that the land in dispute was not vested land that the Eastern Regional Lands Commission had the capacity to convey), but his contention that: “…the Lands Commission (could not) grant a developed parcel of land to another person without recourse to the developer”. In other words, the allocation was made when he was already in possession of the land. It is to be noted that while the plaintiff later amended her pleading, the defendant maintained his pleading as is.

 

We note that in the submission of the defendant/respondent in the instant appeal, he concerned himself with the alleged inconsistencies between the evidence of the plaintiff and her pleading in respect of the acts of possession she alleged. These he listed as her failure to call evidence of witnesses to corroborate her evidence regarding the three thousand cement blocks she alleged she placed on the land, trees which she allegedly felled, as well as an alleged discrepancy between her pleading that she placed stones valued at GH¢950 and what she stated in evidence as the cost: GH¢ 900.

 

Yet having regard to the pleadings and the evidence, it is manifest that the defence mounted by the defendant did not sufficiently challenge the validity of lease exhibit A by which the land in dispute was conveyed to the plaintiff by the Eastern Regional Lands Commission. On the contrary, as aforesaid, the capacity and the right of the said lessor of the plaintiff, to convey the land in dispute was admitted unequivocally by the defendant in pleading.

 

What is the effect then of the purported grant of the disputed land to the defendant by persons he described as the traditional owners per exhibit B, on the strength of which he went onto the land and allegedly expended considerable sums of money?

 

It seems to us that the defendant’s admission that the plaintiff’s lessor: the Eastern Regional Lands Commission had the right and power to convey the vested lands of which the land in dispute was part, essentially negated his case that any other person had any interest and/or right to convey the same parcel of land.

 

In the premises, that his alleged grantor had the right to convey title to the land in dispute to him, could only be established by evidence adduced by him. However, short of tendering exhibit B dated 24th February 2009, which purported to be a deed of conveyance by which one Nana Sefa Baabu Krontihene of Asokore purportedly transferred land described as Sector 10 Block C Koforidua to the defendant, the defendant called no such evidence regarding the capacity of his grantor.

 

It seems to us that in the circumstance, there is no question that the defendant was placed on the disputed land, admitted to be Government-vested land by a person without the requisite capacity to convey the land in dispute. He therefore did not acquire title to the land.

 

The plaintiff alleged that following the conveyance of the disputed land to her by the Eastern Regional Lands Commission, she went onto the land when there was no development, had trees uprooted, and placed cement blocks and stones thereat. She testified that the defendant showed up on the land later and used her stones, shunted her cement blocks aside and used up the uprooted trees for charcoal.

 

The defendant denied this, insisting that he was first on the land and that he had reclaimed it and expended sums of money in its development: GH¢22,000, as well as the connection of electricity and water to a container he placed thereat. In terms of the time-line on who went onto the disputed land first, it seems to us that the defendant’s later admission that he had found the plaintiff’s cement blocks in the vicinity of the land in dispute (although he was careful to deny that they were on the disputed land), gave credence to the plaintiff’s version: that she had been on the land before the defendant went onto it.

 

The contrary assertion of the defendant which was controverted by his said admission, is the defendant’s sole defence against the plaintiff who holds a lease from the Eastern Regional Lands Commission.

 

Yet it seems to us that even if the defendant’s version - including the alleged acts of possession - were found to be true, such could not of themselves vest title in the disputed land to the defendant who on his showing, did not receive a conveyance from the outfit that he admitted had the right to administer Government-vested land of which the land in dispute forms a part. It was his case that he received his grant from other persons (whom he styled as traditional owners thereof).

 

In the absence of a valid title to the disputed land, if the defendant had indeed been on the land prior to the conveyance to the plaintiff (and this was not established by cogent evidence), he at best gained a possessory right over the land he allegedly expensed sums of money on. The said possessory title would have been good against the whole world except the true owner or one who could prove a superior title, see: Mensah v Peniana [1972] 1 GLR 337, also, Summey v Yohuno and Ors [1962] 1 GLR 160.

 

In the face of exhibit A: the plaintiff’s lease from the Eastern Regional Lands Commission, the defendant’s alleged possessory right (even if such obtained) could not stand, for the former was proof of a superior title to the disputed land. But as aforesaid, we consider that the plaintiff’s version, given some credence by the defendant’s admission of seeing cement blocks belonging to the plaintiff on the land when he went onto the disputed land, is the more probable version.

 

Thus the finding of the learned trial judge to the contrary was not supportable either in law, or upon the evidence, and same must be set aside.

 

The appeal is accordingly found to have merit and is hereby allowed.

 

The judgment of the court below is hereby set aside and judgment is accordingly entered for the plaintiff for the reliefs endorsed on her writ of summons.

 

This includes the claim for damages for trespass. Damages for trespass arise upon the mere entry upon the land in the possession of another, and are generally at large, see: Hayfron v Egyir [1984-86] 1GLR 682. Even so, the plaintiff gave an indication of some loss she suffered as a result of the trespass. This included the loss of a trip of stones worth GH¢950. The plaintiff also alleged that she caused trees on the land to be uprooted in preparation for development, at the cost of GH¢450 and that the said uprooted trees were used by the defendant. While these were not claimed as special damages, it will be included in the assessment of general damages, see: Royal Dutch Airlines (KLM) and Anor v. Farmex Ltd [1989-90] 2 GLR 62.

 

We consider the sum of GH¢5,000 general damages adequate for the loss suffered by the plaintiff for the defendant’s trespass onto her land.

 

Costs of GH¢ 3000 to the plaintiff/appellant.