IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
HO - A.D 2018
MOSES TUTU - (Plainiff/Respondent)
ANIBRE KOFI - (Defendant/Appellant)
AFETOR KITIKI & AFETOR ODUMANKUMA (1ST Co-Defendant/Appellant &2ND Co-Defendant/Appellant)
DATE: 26TH JUNE 2018
SUIT NO: H1/266/2004
JUDGES: K. A. ACQUAYE JA (PRESIDING), S. K. GYAN JA, M. M. AGYEMANG (MRS) JA
LAWYERS: MR. SAVIOUR MAX KWASI DZIKUNU, ESQ FOR THE DEFENDANTS/APPELLANTS AND CO-DEFENDANTS/APPELLANT MR. OSCAR VULOR FOR THE PLAINTIFF/RESPONDENT
SAEED K. GYAN, JA:
This case, which at its very inception appeared on the face of it to be quite a simple and straight forward issue of alleged trespass to land ended up assuming a rather hard, difficult, complicated and confused matter, whose resolution was obviously worsened by the fact that, from the pleadings up to a substantial stage of the plenary hearing, the case had been handled by the parties themselves without the support or assistance of legal Counsel.
The legal and factual situation additionally appears to have suffered further complications when following a rather late order for a survey plan to be drawn of the supposed land in dispute, and arising from the outcome of that work, a defence witness applied to be joined and was duly granted leave to join the suit as Co-Defendant, whereupon there subsequently emerged a tacit agreement between the said witness/co-defendant and the main Defendant in the case (1st Defendant) whereby the said 1st Defendant literally and practically ceded his case to the aforesaid defence witness, who had been joined to the suit as another co-defendant, but whose interest and case, at the material time and circumstances, appeared to be at variance with the 1st Defendant in whose favour he had testified as a critical witness.
The case which started in the year 2000 with a Writ of Summons filed on 6/4/2000 at the Kpando Circuit Court found its first substantive resolution, after a full trial by the Circuit Court Judge, who by the time of his judgment at the Court below had been promoted to the High Court Bench and accordingly delivered the now impugned judgment as an Additional Circuit Court Judge.
In what appears to be a rather pain staking but tortuous judgment, the learned trial judge emerged from his labour with certain findings of fact and ultimately pronounced his decision in favour of the Plaintiff in the case, namely MOSES TUTU. The judgment was delivered on the 24th day of October, 2003.
Being aggrieved by and dissatisfied with the decision of the Learned Trial Judge the instant appeal was launched by the “Defendants/Appellants” by way of Notice of Appeal filed on their behalf by their solicitors on 3/11/2003.
The appeal was said to be against the whole judgment and the relief sought was to the effect that the “judgment be set aside and judgment entered in favour of the Defendant and Co-Defendant/Appellants”.
The grounds set out under the said notice of appeal were as follows:
“a) The judgment is against the weight of evidence.
b) The judgment is wrong in law and otherwise insupportable
c) The learned trial Judge failed to appreciate the issues before him and therefore came to wrong conclusions.
d) Other grounds of appeal will be filed upon receipt of record of proceedings”
On 30/12/2004 upon leave granted on 16/12/2004, two additional grounds of appeal were duly filed to the following effect:
The Learned trial Judge erred when he held that the Plaintiff proved his boundaries of the land in dispute.
The Learned Trial Judge erred in law when in the face of over whelming evidence from both the Plaintiff and Defendants that the Defendants have been in possession of the piece of land described in the judgement as 1 (one) nonetheless held that the Plaintiff had proved his title to the same”
The facts forming the background to the case, and hence the instant appeal, may be set out, as captured by the record of appeal, as follows;
The Plaintiff originally sued the Defendant, ANIBRE KOFI by his writ issued from the Registry of the Kpando Circuit Court on 6/4/2000. The Plaintiff commenced the action in his alleged capacity as Head of the Keng Family of Have Aklame and charged the Defendant with trespassing unto his family land by reason of wrongfully entering the land and uprooting 18 palm trees and making native wine from them. The Plaintiff also claimed that the said Defendant had felled without authority an odum tree from his family land. He claimed damages for trespass. The Plaintiff then claimed further an order of declaration of title and ownership to the land he said belonged to his Keng family which is known and called “Anlogoe” forest land as well as perpetual injunction against the Defendant.
The Plaintiff identified the boundary of the land for which the trespass had allegedly been committed as follows:
“On one side by Afeto Kpo of Have Domefe on one side by Anibre family of Have Akleme on another side by land belonging to Anfoeta people on the last side by Anibre family of Have.”
By his statement of claim the Plaintiff contended that the land claimed by him was originally acquired by his ancestor/grandfather Togbe Keng through his hunting adventures and came to him by way of customary inheritance, he having succeeded his predecessors Tutu Kwasi and Governor Tutu who had all exercised acts of ownership and control over the land.
The Plaintiff averred that he sued the Defendant for wrongfully felling and tapping 18 palm trees and an odum tree on his said land.
In rebuttal the Defendant on 13/4/2000 filed a statement of defence denying any trespass to the Plaintiffs Anlogoe land. On the contrary the Defendant alleged that the palm trees and the odum tree were felled in his ancestral land which was originally acquired through hunting activities of his great grandfather called Togbe Apawudza over 300 years ago and had come to be known and called Lekpe land. He contended that the trees he felled and which were being claimed by the Plaintiff had been felled upon the specific and prior approval of his head of family, one Afetor Kitiki.
The Defendant identified the Lekpe family land by the following boundaries-
“On one side by the landed property of Moses Tutu and Afetor Kpo all of Have Akleme and Domefe respectively.
On another side by the landed property of Kitiki Yao and Asempa all of Have Etoe.
On another side by the landed property of Moses Tutu of Have Akleme.”
The Defendant alleged that his family had exercised various acts of ownership and control over the said land and consequently counter-claimed for declaration of title and perpetual injunction.
On 13/4/2000 Afetor Kitiki, who the Defendant had in his statement of Defence claimed to be his head of family, filed an application to be joined to the suit as Co-Defendant and, subsequently, on 7/8/2000 filed a statement of Defence and counter-claim in a form and manner virtually identical to the statement of Defence filed by the Defendant.
It would be noted that Afetor Kitiki referred to also as Togbe Kitiki alias Odikro, from the record, was variously described as co-defendant or 1st Co-defendant. It is also noted that apart from filing a statement of Defence and counter-claim and being recorded as 2nd Defendant to have cross-examined the plaintiff and his witnesses, Afetor/Togbe Kitiki is not shown further in the record of proceedings to have given evidence on his own behalf as a party. Significantly, Anibre Kofi, whom the trial Court described as 1st Defendant when he opened his case, did not testify or disclose that he was giving evidence for himself and on behalf of Afetor/Togbe Kitiki.
At the trial, the Plaintiff gave evidence and called three (3) witnesses.
ANIBRE KOFI gave evidence by himself and called four (4) witnesses in his support.
It was after the conclusion of the evidence of DW4, Parku Tulasi of Have-Akleme that the trial Court on 14/5/2001 appointed one Mr. C.C. Nuque to “survey and produce a plan of the land in dispute,” with further order for the parties to file their respective survey instructions and pay a deposit towards making the plan.
On 25/5/2001 Dominic K. Kudoadji filed a Notice of appointment of solicitor for the Defendants.
Then on 8/6/2001 Oscar Vulor Esq filed notice of appointment of solicitor for the Plaintiff.
The Plaintiff and “Defendants” filed their respective survey instructions on 25/5/2001 and 22/6/2001.
On 23/11/2001 Afetor Odumankumah IV of Have Traditional Area applied formally to be joined to the suit as a co-defendant. In the accompanying Affidavit he declared that he had a parcel of family land at Have on “NYINTO” mountain which shared common boundary on various directions by properties of the Tutu and Anibre Kofi families. He alleged that the Plaintiff and his brother had brought a land surveyor and made a boundary demarcation which had enclosed a chunk of his family land which he considered to be a trespassory act and for which he ought to be granted leave by the court to protect and thereby avoid multiplicity of suits.
Significantly, the applicant failed or otherwise neglected to disclose in his aforesaid affidavit that he had previously testified in the suit as DW1.
Having been joined without opposition as co-defendant, he filed his statement of defence and counter-claim on 4/12/2001. He described himself as the Afetor of Geli and Dake families of Have-Domefe, the Plaintiff as Okyeame of Atitedome family of Have Akleme and the “Defendants” as “also Afetor and family members of Anibre family of Have Akleme”.
The Co-Defendant, Afetor Odumankuma contended that the Nyito Mountain or Anlogoe land was his ancestral family land originally acquired by his great-grandfather Kpo Norti over 3000 years ago through his hunting expeditions and that he exercised various acts of ownership and possession over the land which had through successive inheritance come to him as head of the Afetor stool and family of Have Domefe.
It was his contention that the Plaintiff, not being properly acquainted with the boundaries of his land, in the course of his litigation with the Defendants veered into portions of he, the Co-Defendant’s stool/family land, in connection with the preparation of a survey plan ordered by the trial Circuit Court of Kpando and stubbornly refused to correct his mistake despite repeated warnings.
The Co-Defendant identified his land as sharing boundary with the properties of both the Plaintiff and defendants as well as those of the Kpo, Alifo and Mude families. A stream called Anlogoe separate his family/stool land from that of the Plaintiff’s family and that his stool/family and its members had over the years exercised clear acts of ownership and possession over their said ancestral land. The Co-Defendant by paragraph 13 of his statement of defence sought to challenge the capacity of the Plaintiff by alleging
“that, the said land which is their family property was entrusted into his hand as the head of their family” with his title as okyeame and further that, since the Plaintiff had been destooled, “he is no more the head of their family to contest this particular case.”
The Co-Defendant also contended that the Plaintiff, on one occasion was compelled to pay compensation to his family when he wrongfully felled a timber tree on their land.
He therefore counter-claimed for declaration of title to and ownership of Norti Mountain or Anlogoe land, recovery of possession and perpetual injunction as well as an order of ejectment against the Plaintiff.
On 4/3/2002 the Co-Defendant appointed Dominic K. Kudoadji, Esq as his Solicitor who then proceeded to file survey instructions on his behalf on 5/3/2002.
Pages 96 to 104 of the record show that C.C. Nuque, the Court appointed surveyor, gave evidence, tendered his report and plan and was rigorously cross-examined by Counsel for the parties following which the Co-Defendant opened his defence, gave evidence by himself and called three (3) witnesses.
Upon a change of solicitor, the new solicitor for the “Defendant and Co-Defendants” applied for and was granted leave to recall the surveyor (CW1); the Plaintiff and some of his witnesses as well as to lead further evidence by bringing in certain new witnesses as well as granting Afetor Kitiki (2nd Defendant/1st Co-Defendant) to give evidence on his own behalf together with an order for rectification of the survey plan.
In the event, CW1 was recalled and re-examined and so was the Plaintiff, and PW2, while one Hanson Kwesi Klu was called to give evidence as CDW3 after which the case for the Defendant and Co-Defendants was formally closed by their new solicitor, whereupon after the filing of Counsels addresses the Court delivered its judgment on 24/10/2003.
As noted above, ultimately, only the Plaintiff, CW1 and PW2 were recalled and only one new witness CDW3 was called. All the others sought for, including, significantly, Afetor Kitiki (2nd Defendant) were not called to testify.
Before dealing with the substantive issues connected with this appeal, it is worth noting that the appeal process is strictly governed by statute and does not constitute an inherent right. See; FRIMPONG AND ANOR VS. NYARKO (1998-99) SCGLR 734 @ 737/739.
A party filing an appeal therefore is enjoined to comply with the dictates of the law in that connection. See the case of: BROTHER WILLIAMS V. STEPHEN K. AMOAH: CIVIL APPEAL NO. H1/06/2018 OF 30/5/2018 (UNREPORTED) PER AGYEMANG JA, also ZABRAMA V SEGBEDZI (1991) 2GLR 221.
In the Brother Williams case (supra) my illustrious sister, Agymang JA delivered herself in the manner as follows;
“An appeal is said to be lodged when in accordance Rule 8(1) and (2) of the Court of Appeal Rules CI 19, a notice of appeal is filed at the registry of the court below. The notice of appeal must contain grounds of appeal which must provide information (for the direction of the appellate court in its duty of rehearing), regarding where the court below erred in its judgment or ruling, to identify and narrow down issues raised by the appeal, see: Republic v Central Regional House of Chiefs Judicial Committee; Ex Parte Aaba (2001-2002) 1 GLR 221, directing the Court in its duty of rehearing the matter.
Rule 8(4)-(6) of CI 19, prescribe how grounds of appeal must be formulated and set out in a notice of appeal to attain the said objective. We reproduce the said rules.
It is provided in Rule 8(4) (5) and (6) of the Court of appeal Rules CI 19 as follows:
“(4) Where the grounds of an appeal allege misdirection or error in law, particulars of the misdirection or error shall be clearly stated.
(5) The grounds of appeal shall set out concisely and under distinct heads the grounds upon which the appellant intends to rely at the hearing of the appeal without any argument or narrative and shall be numbered consecutively.
(6) No ground which is vague or general in terms or which disclose no reasonable ground of appeal shall be permitted, except the general ground that the judgment is against the weight of the evidence; and any ground of appeal or any part of the appeal which is nor permitted under this rule may be struck out by the Court of its own motion or on application by the respondent.”
The supreme Court of Ghana spoke more forcefully and forthrightly through Akamba, JSC in the case of F.K.A. COMPANY LTD AND ANOR V. NII AYIKAI AKRAMAH II AND 4 ORS (2016) 101 GMJ 186 thus:
“it is important to stress that the adjudication process thrives Upon law which defines its scope of operation. It is trite to state for instance that nobody has an inherent right of appeal. The appeal process is the creature of law. Any initiative within the context of the adjudication process must be guided by the appropriate, relevant provision be it substantive law or procedural law. As Courts, if we fail to enforce compliance with the rule of Court, we would by that lapse be enforcing the failure of the adjudicating process which we have sworn by our judicial oaths to uphold.
The matter before this court presently has been initiated through the appeal process and must therefore be conducted and guided by the Supreme Court Rules (1996), CI. 16 …..
As Courts by law we administer justice according to law and equity which are strictly guided by laid down rules fashioned out over the centuries to guide our conduct. In Ayikai V. Okaidja III (2011) SCGLR 205 this court did stress the fact that non-compliance with the rules of Court have very fatal consequences for irregularity but raised issues that got to the jurisdiction” [Ref pages 190-191 of the Report].
In the F.K. A. CO LTD. case (supra) the supreme Court of Ghana proceeded to strike out all but one of the seventeen (17) grounds of appeal as falling foul of the Supreme Court Rules.
Even a cursory examination of the original grounds of appeal filed (p196 of the ROA) would show that grounds (b) and (c) woefully sin against Rules 8 (4) (5) and (6) of CI. 19 and ought to be shot down.
The offending grounds are phrased in the manner as follows:
“(b) The judgment is wrong in law and otherwise unsupportable”
c) The Learned trial Judge failed to appreciate the issues before him and therefore came to wrong conclusion”
In my respectful judgment, they fail to particularize the alleged misdirection or error of law; or that they are argumentative or otherwise vague, general and/or disclose no reasonable grounds of appeal.
I, accordingly, strike them out as grounds of appeal in accordance with Rule 8(6) of C.I. 19
It is a well-established proposition of law and duly endorsed by Rule 8(1) of the Court of Appeal Rules, 1997 (C.I. 19) that an appeal is by way of re-hearing. And when, as in the instant case, there was a charge that the judgment was against the weight of evidence, it enjoined the Appellate Court to re-examine and review the entire record in terms of both oral and documentary testimony in order to satisfy itself whether or not on the facts and in law the impugned judgment could be sustained by the admissible material on record. The Appellant indeed bore the burden of demonstrating that the Judgment was infact against the weight of evidence led. See TUAKWA VRS. BOSOM (2001-2002) SCGLR 61; KOFI & OTHERS VRS. ATTIBRUKUSU III (2011) SCGLR 179; DJIN VRS. MUSAH BAAKO (2007-2008) SCGLR 686; OPONG VRS. ANARFI (2011) SCGLR 556; ABBEY VRS. ANTWI (2010) SCGLR 17.
Thus, the Appellant had the duty to point out relevant pieces of evidence which if properly applied could have tilted the judgment in his favour; BOATENG VRS. BOATENG (1987-1988) 2 GLR 81 CA. In other words, the burden of proof lies on the appellant to establish that the impugned judgment has no support in the evidence and material on record.
Now, where the judgment is based on findings of fact, an Appellate Court had the duty to establish from the record if evidence exists to support the findings: KOGLEX LTD. (NO20 VRS. FIELD (NO.2) (2000) SCGLR 175. And, as was established by the Supreme Court, in the case of BONNEY VRS. BONNEY (1992-1993) GBR. 779, where an Appellant assumed the duty to show that the judgment he was impugning was against the weight of evidence, an Appellate Court must not interfere with the findings of fact made by the trial Court unless they were shown to be clearly wrong or that, the trial Judge had failed to take into account all the evidence: See also ABAKA ANTA VRS. ANGUAH BENNIEH (1939) 2 WACA 1; AGYARE VRS. KWAKYE 10 W.A.C.A. 1
Justice Kingsley Nyinah in OKUNOR VRS. OKAN (1977) 1 GLR 173 @ 177, appropriately summarised the basic duty imposed on an Appellant when he declared that, in order to succeed on an appeal, the Appellant must demonstrate that;
There was an error of law on the part of the Trial Judge or
ii) some misappreciation by him of the facts and salient issues.
In other words, the Appellant assumed the burden to show the exact error of law committed by the trial Judge as well as pointing to relevant pieces of evidence on record, which if properly considered or given the right weight, would have resulted in a different outcome favourable to him.
The lapses in the judgment must be satisfactorily demonstrated. See DJIN VRS. MUSAH BAAKO (supra)
The task of an appellant may also be gleaned from pronouncements of the Courts in, for example,
ASSIBEY VS. GBOMITTAH & 2 ORS (2012) 47 GMJ 61 and BISI VS. TABIRI alias ASARE (1984-86) GLR 282-287.
In the Assibey case (supra) Baffoe-Bonney, JSC quoted with approval the position taken by the Court of Appeal in that case thus:
“…… the fundamental issue to be considered in this appeal is whether or not the appellant was able to adduce such credible, intelligent and quality evidence with such certainty that the trial Court ought to have been convinced that the appellant had met the essential criteria for proving her case on the preponderance of the probability test?”
On his part, Adade, JSC delivered himself thus in the BISI VS. TABIRI case (supra):
“As a Judge of fact, it is his peculiar province, listening to the evidence before him, to weight the several statements on each issue and to decide which to believe and which to reject. So long as his conclusion can find support from the statement on record, it is not open to an appellate tribunal, except for just and compelling reasons to dismiss the findings made and the conclusions arrived at by the trial Court.”
I have examined the record in this case, considered the judgment which is the subject of the instant appeal and considered the matters discussed in the written submissions filed in this case before this court on behalf of the parties herein.
It is my view that a critical examination and consideration of the record would justify the position that the further grounds of appeal filed could appropriately be subsumed and justifiably dealt with under the omnibus ground of appeal without any prejudice being occasioned the appellants herein since that ground would seem to effectively and effectually dispose of the salient issues raised for determination in this appeal.
Indeed it would appear to me that the ambit of this case and hence this appeal falls within a relatively narrow compass. Shorn of drama and hyperbole the question central to the dispute in all its dimensions is the determination of the appropriate boundaries between and among the various disputants and even other stakeholders whose names frequently or even casually appeared in the evidence presented at the trial.
Though it is evident that what catalysed the conflict was the alleged felling of a number of palm trees and an odum tree at a particular place the evidence and the material provided by the record points irresistibly in the direction that on a wide compass of land surrounding a mountainous height various families, individuals and undefined groups have over the years asserted varying claims to land holdings with often amorphous boundaries.
Ultimately the contest constituted a turf war and a dominant fight for supremacy and seeking to capture and advance a solid sphere of influence and control in an unsettled terrain. The Plaintiff and the Co-Defendant assumed front runners in the race.
In the end, the trial Judge preferred the case of the Plaintiff to the Defendants, namely the 1st Defendant, 2nd defendant and the Co-Defendant.
He assessed the evidence and the relevant material before him as he saw it and in the light of the law as he understood it.
Was the learned trial Judge right or justified in his determination of the case before him, in all the circumstances confronting the court? If his decision or determination is not wholly justifiable, is it supportable and/or SUSTAINABLE on the evidence and material contained in the record?
it is trite law that an appellate Court must satisfy itself that the judgment of the trial Court or Court below was justified or supported by evidence on record. Where there was no such evidence, that finding ought to be set aside.
Ref: KOGLEX LTD (NO2) VS. FIELD (2000) SCGLR 175 @ 179, ALSO: KYIAFI VS. WONO (1967) GLR 463 @ 410.
I wish most heartily to commend Counsel on their admirable zeal and industry in presenting their respective written submissions.
Counsel for the Appellants with great force and persuasive analysis of the evidence and material on record tried to convince the understanding of the Court as to why the Learned Trial Judge’s findings were not supportable; and more importantly why the judgment which granted the reliefs sought by the Plaintiff is not sustainable more especially on the ground that the Plaintiff could not properly and fully establish the identity of his land.
With equal strength Counsel for the Plaintiff did all he could to support the impugned judgment.
I may incidentally at this point stress emphatically that the submissions and arguments so ably and eloquently marshalled by Counsel for the Appellants herein against the judgment of the trial Court would, certainly, with similar and equal force and intensity have gone for and applied against the judgment had it been given in favour of or entered for the Defendants and Co-Defendants respectively.
The persuasive quality of the submissions of counsel encouraged me to examine and reconsider or otherwise to review the record of appeal(ROA) repeatedly.
In the end, I came to the inevitable realization that this appeal could not properly be determined on the merits.
Therefore, it is with a distressed heart and an agonized mind that I have to confess that this judgment needs and has to take a different turn or direction and assume a different dimension.
A thorough and critical examination of the record of appeal as well as all the circumstances of the case, as revealed by the record, establishes that the very structure of the trial process in the Court below and other circumstances of the proceedings in the case did not allow for the full realization or expression of the right to be heard by the contending parties by providing the enabling environment, processes and procedure which would have enabled them to properly prosecute their respective cases.
Worse still, the survey plan which was presented, at the time the order was made for it to be drawn and the circumstances of its preparation led to even greater confusion and created more opacity than shedding light to bring understanding and thereby contributing to the true and practical resolution of the matters raised in controversy in the case before the Court. Instead it seems to have compounded the confusion that engulfed the case.
Counsel for the Appellants was substantially right in suggesting that the case largely bordered on the issue of boundaries.
We think, however, that the more critical matter that underpinned all the claims before the Court was the issue of IDENTITY of the land for which each party sought to obtain an order of declaration of title to.
It must be remembered that each of the contending parties was a Plaintiff in their own right and sought specific reliefs individually, the common strain however being the claim for declaration of title to one piece of land or the other, all generally falling within the vicinity of a wider undefined area.
Moses Tutu, as the primary Plaintiff, had the burden and standard of proof imposed on him to establish his case on the balance of probabilities as determined by law.
But so too, and in certainly to the same extent, is the burden on all the other contending parties in the case.
Anibre Kofi as the original Defendant, filed a counter-claim for the reliefs shown earlier in this judgment. Afetor Kitiki, who, subsequently, applied to be joined as Co-Defendant but whom the Court redesignated as 2nd Defendant, also filed a counter-claim. And then Afetor Odumankuma who later applied and was joined to the suit as Co-Defendant, similarly, filed a Counter-claim also claiming reliefs, including, declaration of title to land-just like all the other parties in the suit.
Thus, as was clearly established in the Supreme Court case of JASS COMPANY LTD. VS. APPAU AND ANOTHER (2009) SCGLR 265 the same standard or burden of proof would be used to evaluate and assess the case of a Defendant who Counter-claims as would be exacted from the Plaintiff. This is because a Defendant counter-claimant stands in relation to the Plaintiff, as a Plaintiff in his own right in connection with his counter-claim.
Now, having exhaustively examined the record of appeal in accordance with our mandate, pursuant to Rule 8(1) of C.I. 19, to rehear the case on an appeal, we have inevitably come to the conclusion that all the parties had signally failed to satisfy the burden and standard of proof imposed on them to establish their respective cases.
There is common ground, however, that all the parties in the instant case together with many other persons specifically named during the trial, as well as others who were alluded to but not specifically identified, all had different interests, rights and titles to land in the general area touching on the land in controversy.
In the instant case, the Plaintiff was unable to prove the extent of his land to include and particularly identify the area of dispute where the eighteen (18) palm trees he alleged the original defendant, Anibre Kofi, felled. This was the claim he brought before the Court. To that extent the trial Court could not have justifiably found for the Plaintiff as he did and granted him all the reliefs indorsed on his writ.
Equally, the Co-Defendant, whose evidence regarding his boundary with he Plaintiff along the Anlogoe stream and the land lying beside the stream on which the Plaintiff, as an established fact, had tenant farmers, was not able to prove the extent of his land by a preponderance of the probabilities, the burden he assumed when he made a counter-claim, in order for the Court to justly make a determination granting him judgment based on his counter-claim.
As for the 2nd Defendant, as noted previously in this judgment, he failed to proffer any evidence directly in support of his case and counter-claim.
We believe that this unhappy situation largely arose from the limitations surrounding the structure of the trial and the proceedings in the Court below.
In our respectful view, the circumstances of the trial and the nature of the proceedings in the Court below, leading to the judgment impugned in the instant appeal, evince a clear failure of justice, thereby producing a substantial miscarriage of justice affecting all concerned in this case.
Clearly, the judgment of the Court below is not sustainable in the circumstances of this case and, accordingly, has to be set aside.
But, similarly, it is impossible to grant judgment in favour of the Defendant, 2nd Defendant and the Co-Defendant, as Appellants herein, on the evidence and material established on the record of appeal.
In conclusion, we wish to opine that the processes of the trial seem to have been blotted and blighted in the way and manner the case was handled to the extent that, ultimately, substantial justice was compromised, or was otherwise not achieved.
In the peculiar circumstances of this case, as we have found the situation to be, it would appear to us to be clearly inadmissible to merely dismiss the appeal and thus uphold or sustain the judgment of the trial Circuit Court which entered judgment in favour of the Plaintiff/Respondent herein, a favour which the Plaintiff definitely did not deserve; nor to uphold the appeal, set aside the judgment and to enter judgment for the Appellants, a curiosity which would have meant that judgment was rather incongruously being entered in favour of the 1st and 2nd Defendants, on the one hand and at the same time, for the Co-Defendant, on the other, in respect of their respective counter-claims, which evinced positions and interests that were not necessarily coterminous with each other, but which in reality conflicted with each other, despite having one Lawyer representing them in this appeal.
We think that this is an occasion in which the painful step ought to be taken to bite the judicial bullet in the interest of justice and to regrettably order a retrial of the case, having regard to all the circumstances of the instant case.
We would, additionally, order that, pursuant to the order above for a rehearing of the case, a new survey plan be ordered and be made by a new and different surveyor, at the very beginning of the retrial, to replace the one which was prepared and tendered by CW1, Mr. Charles Cosmos Nuque, Licensed Surveyor No. 211, resident at Hohoe, to assist the Court in its new deliberations and determination.
This case is, accordingly, hereby remitted to the Circuit Court for rehearing or re-trial.
SAEED K. GYAN
(JUSTICE OF THE COURT OF APPEAL)
I AGREE ………………………
K. A. ACQUAYE
(JUSTICE OF THE COURT OF APPEAL)
I ALSO AGREE ……………………..
MABEL AGYEMANG (MRS)
(JUSTICE OF THE APPEAL COURT)