IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL CIVIL DIVISION)
KUMASI - A.D 2018
NANA BAFFOUR GYAWU - (Defendant/Appellant)
YAW ADU GYAMFI -(Plaintiff/Respondent)
DATE: 15 TH OCTOBER, 2018
SUIT NO: H1/23/2018
JUDGES: ADUAMA OSEI JA (PRESIDING), DZAMEFE JA, WELBOURNE (MRS) JA
NO REPRESENTATIVE FOR DEFENDANT/APPELLANT
NO REPRESENTATIVE FOR PLAINTIFF/RESPONDENT
ADUAMA OSEI JA:
The writ of summons that initiated this action was issued in the Circuit Court, Kumasi, on the 23rd of December, 2005. In the course of trial before the Circuit Court, however, it was by a transfer order issued by the Chief Justice, transferred to the High Court, Kumasi, for continuation. The judgment appealed from is therefore a judgment of the High Court and it is dated the 28th of July, 2016.
In this judgment, the Defendant/Appellant is referred to as “the Defendant”, and the Plaintiff/Respondent is referred to as “the Plaintiff”.
The reliefs the Plaintiff sought in the trial Court were for a declaration that he is the bona fide owner of Plot Nos. 24 and 25, Block A, situate at Ampeyoo on Agyeiwaa Stool land, recovery of possession of the said land, damages for trespass in respect of the land, and perpetual injunction against the Defendant and his agents, assigns and privies restraining them from entering upon the land or interfering in any way with the Plaintiff’s ownership of the same.
To justify the reliefs claimed by him, the Plaintiff alleged in his amended statement of claim that the disputed land was acquired by him from the Agyeiwaa Stool sometime in February, 1996 and that following the acquisition, he enjoyed a peaceful and quiet possession thereof. It became necessary for him to institute the action because the Defendant had forcibly entered upon the land and was unlawfully developing same. The Plaintiff stated in the statement of claim that in spite of strong objections from him and an open denial of ownership by the chief and some elders of the Patuda Stool, whom the Defendant had put forward as the owners of the land, the Defendant had persisted in his unlawful occupation and development of the disputed land. The Plaintiff alleged further that even though the Defendant had had occasion to approach him with a proposal to take from him an assignment of his interest in the disputed land, without waiting to know his reaction to the proposal, the Defendant had been carrying on with his unlawful activities on the disputed land and had caused substantial damage to the same.
By his amended statement of defence and counterclaim, the Defendant denied that the Plaintiff was entitled to claim against him as alleged or at all. The Defendant alleged that he had acquired the disputed property from the Konadu Yiadom Stool in the year 2005, and that a lease in respect thereof had been executed for him, which he had registered. The Defendant denied having proposed to take an assignment of the disputed property from the Plaintiff and alleged that it was rather the Plaintiff who approached him to be given GH¢1,000.00 to enable him settle part of the expenses incurred by him in instituting the action. The Defendant counterclaimed for a declaration that he is the lessee of the building plot numbered 25, Block A at Patuda in Kumasi, an order of perpetual injunction restraining the Plaintiff or his agents, assigns or privies from interfering with his possession and enjoyment of the property covered by his lease, and for an award of damages.
When pleadings closed, the Plaintiff filed as the matters for determination the issue whether title to residential plot numbers 24 and 25, Block A was vested in the Plaintiff or in the Defendant, whether or not the Plaintiff was entitled to his claim, and any other issues raised on the pleadings. At the end of the trial, the trial Court held that on a balance of the probabilities, the Plaintiff had established a better title to the disputed property than the Defendant and accordingly dismissed the Defendant’s counterclaim. The trial Court also entered judgment in favour of the Plaintiff for the reliefs indorsed on his writ of summons and awarded him the sum of GH¢20,000.00 as general damages.
This appeal has been filed because the Defendant is dissatisfied with the judgment of the trial Court and his grounds for appealing are that the trial Court failed to adequately consider the evidence adduced by him, and that the judgment was against the weight of evidence. The Notice of Appeal is at pages 247 and 248 of the Appeal Record, and the judgment appealed from is at page 203 to page 246 of the same record.
Arguing in support of the appeal, Counsel for the Defendant cited the cases of Tuakwa Vs. Bosom [2001-2002] SCGLR 61 and Djin Vs. Musa Baako [2007-2008] SCGLR 686 and submitted that in view of the omnibus ground contended by the Defendant in this appeal, it is incumbent upon this Court to consider comprehensively the entire evidence adduced at the trial before coming to its own decision on the admitted and undisputed facts. Counsel also acknowledged that before this Court would assume its responsibility of analysing the record to reach its own decision, the Defendant, as the appellant who was attacking the lower court, owed a duty to clearly and properly demonstrate to this Court the lapses in the judgment of the trial Court.
In arguing the contention that the trial Court failed to adequately consider the evidence of the Defendant, Counsel referred to the holdings of the trial Court that the case of the Defendant was contradictory and that the Defendant had traced his root of title to a source that did not exist in law and submitted that the said holdings of the trial Court were based on an erroneous evaluation of the evidence produced by the Defendant. In his view, the said holdings were not borne out by the record.
Counsel explained that the case presented by the Defendant at the trial was that he purchased the disputed property from the Konadu Yiadom Stool through Odikro Nana Sekyere II, also known as Kenneth Ofori, Opanin Dwuma and Opanin Yaw Agyemang. He said it could be gleaned through Exhibit 2 which the Defendant tendered that the Defendant’s grant was through the Patuda # 2 Allocation Committee. He also mentioned Exhibits 3 and 4 as confirming that he had obtained a grant in respect of Plot No. 25, Block A, Patuda. Counsel also mentioned DW.1 and DW.2 as corroborating the Defendant’s evidence. Counsel noted that while the Plaintiff had claimed that he acquired the land from DW.1, the said DW.1 had denied that the said land formed part of the land his Stool granted the Plaintiff and had further denied owning the said land. He submitted that in that circumstance, the Plaintiff’s alleged grant could not have validly vested the disputed property in the Plaintiff, as DW.1 could not grant the Plaintiff what he did not own. In the view of Counsel, on the doctrine of nemo dat quod non habet, the judgment entered in favour of the Plaintiff by the trial Court ought to be reversed and judgment entered for the Defendant.
It was further contended by Counsel for the Defendant that the testimonies of DW.1 and DW.3 were more credible than that of the Plaintiff and noted that the record did not support the trial Court’s preference for the Plaintiff’s testimony. Counsel contended that, like the Plaintiff’s, PW.2’s testimony was not credible and it should not have been accorded any weight. Counsel also noted that even though the Plaintiff sought a declaration in respect of Plot Nos. 24 and 25, Block A, none of the documents the Plaintiff tendered supported his claim to ownership of the said property. He noted that Exhibit B which the Plaintiff tendered in support of the grant alleged by him made no mention of either of the Plots, and Exhibits C and C1 also made no mention of them. Counsel observed that this is an indication of the failure of the Plaintiff to prove his title. His claim should therefore have failed. Counsel submitted that the Plaintiff had asserted title to a particular property but had furnished the Court with evidence in respect of property completely different and unrelated to the land he claimed ownership of.
In respect of Exhibit B, Counsel contended that it was an incomplete document shrouded in suspicion which did not deserve the attention the trial Court gave to it. Counsel pointed out what he considered to be deficiencies with Exhibit B and submitted that the said document was fraudulently procured to aid the Plaintiff’s case.
In arguing the ground that the judgment is against the weight of evidence, Counsel contended that the record shows that the Defendant described his land with clarity and contended that he had a better title than the Plaintiff. He said the Defendant had testified about the purchase of Plot No. 25, Block A, Patuda, Kumasi, from the Konadu Yiadom Stool, and had tendered Exhibits 2, 3 and 4 in support of his testimony. He also noted that the Defendant’s grantor, DW.2, testified to establish the grant of a specific piece of land to the Defendant. Counsel contended that the Plaintiff, on the other hand, was unable to rebut the case which the Defendant established during the trial. The Plaintiff was unable to furnish the Court with any document in support of his assertion of ownership of the disputed property and he thus failed to establish his claim on a balance of the probabilities. In the view of Counsel, as a lease granted to KITAG FARMS with the Plaintiff acting as its Managing Director for a tenure of 50 years, reliance on Exhibit A by the Plaintiff in the present case raised several legal questions adverse to the case of the Plaintiff. Counsel also contended that the Plaintiff failed to provide evidence on the true description of the land claimed by him and having so failed, on the authority of Gawu III Vs. Ponuku  GLR 101, the Plaintiff’s claim should have failed.
Reacting to the arguments advanced in support of the Defendant’s contention that the judgment is against the weight of evidence, Counsel for the Plaintiff contended that that ground of objection fixed the Defendant with the responsibility of bringing to the attention of this Court pieces of evidence which the trial Court did not look at, or which it applied wrongly. Counsel also submitted that a plaintiff who brings his adversary to court ought to prove his claim by introducing sufficient evidence so that a reasonable mind would come to the conclusion that he had proved his case by a preponderance of the probabilities. He observed that this applies to the Plaintiff as well as the Defendant in his capacity as a counterclaimant.
Counsel contended that the Plaintiff discharged his evidential burden at the trial. In his view, this is seen in the testimonies of the Plaintiff, PW.1, PW. 2, PW.3, and Exhibits A, B and C. Counsel also rejected the Defendant’s contention that Exhibits A, B and C bore no plot numbers and therefore failed to establish the identity of the land claimed by the Plaintiff. Counsel was of the view that the allocation paper established that Plot No. 24 was formerly Plot No. 18, and Plot No. 25 was formerly Plot No. 19.
In reaction to the Defendant’s claim that Exhibit B was fraudulently obtained, Counsel for the Plaintiff countered that the authenticity of that exhibit was never challenged. Counsel rather contended in respect of Exhibit 4 that it carried no evidential weight. Counsel noted that Exhibit 4 was prepared while the matter was still pending and it did not deserve to be accorded any weight. Counsel concluded his submissions by inviting this Court to affirm the judgment of the trial Court.
The evidence adduced by the Defendant at the trial formed part of the general evidence before the trial Court against which the Court delivered the judgment appealed from. Saying that the trial Court failed to adequately consider the evidence adduced by the Defendant is therefore the same as saying that the Court failed to adequately consider the evidence before it, and it is also the same as saying that the judgment was against the weight of the evidence. To my mind therefore, the basis of the Defendant’s objection against the judgment of the trial Court was just one, which was that it was against the weight of evidence before the Court. And it is my intention, in this judgment, to consider the arguments advanced on behalf of the Defendant in this appeal under that ground.
Counsel for the Defendant has, in his submissions, cited the cases of Tuakwa Vs. Bosom (supra) and Djin Vs. Musa Baako (supra) and has submitted that in view of the omnibus ground filed in the appeal, this Court is obliged to undertake a comprehensive review of the entire evidence and reach its own decision on the admitted and undisputed facts. Citing the same cases, Counsel for the Plaintiff has also observed that in this appeal, the Defendant bears the responsibility of clearly and properly demonstrating to this Court the lapses in the judgment of the trial Court that have aggrieved him.
But in considering this appeal, I also intend to bear in mind what Aikins JSC stated in Bonney Vs. Bonney [1992-93] 2 GBR 779 that “the appeal court should not, under any circumstances, interfere with the findings of fact of the trial judge except where they are clearly shown to be wrong, or that they did not take all the circumstances and evidence into account, or has misapprehended certain of the evidence or has drawn wrong inferences without any evidence to support them or that he has not taken proper advantage of his having seen or heard the witnesses”. Although the trial of the present case did not commence before the judge who delivered the judgment appealed from, the said judge was in charge of proceedings from the concluding part of the cross-examination of DW.1. Bonney Vs. Bonney is therefore of significance in the present case.
The question which the parties invited the trial Court to answer for them was which of them was vested with title to residential plot numbers 24 and 25, Block A, at Ampeyoo in Kumasi in the case of the Plaintiff, and Plot No.25, Block A, at Patuda in Kumasi in the case of the Defendant. The answer given by the trial Court not having satisfied the Defendant, it is this same question that this Court has been invited to answer in this appeal. And for that answer, we have been asked to comprehensively review the entire evidence that was placed before the trial Court. But in reviewing the evidence, what should this Court look for to be able to answer the question satisfactorily?
There is a passage in the opinion given by Francois J.S.C in the case of Akoto II & Others Vs. Kavege and Others [1984-8] 2 G.L.R 365, which I think provides some help in this respect. In that passage, His Lordship was recounting the shortcomings in the evidence adduced by the plaintiffs, and the following were his words:
The suit being one for a declaration of title, the plaintiffs have an onerous burden to discharge. This is trite law and would have necessitated no further comment but for the procedure adopted. No root of title was disclosed. Neither the tradition of acquisition of an inherited estate nor the incidents of purchase, if acquired by sale, were divulged. No clear and positive acts of unchallenged sustained possession or of substantial user emerged from the evidence”.
Georgina Wood CJ, also offered an opinion as to what was required of a person asserting title to land in the case of Mondial Veneer (Gh) Limited Vs. Amuah Gyebu XV  1 SCGLR 466 (475). Her view was that such a person on whom the burden of persuasion fell, was required to prove his “root of title, mode of acquisition and various acts of possession exercised over the subject-matter of litigation”. Her Ladyship emphasised that it was only when that party had succeeded in establishing those facts on a balance of the probabilities that he would be entitled to his claim. But not to be forgotten, is the principle in Anane Vs. Donkor  GLR 188 that “a claim for declaration of title or an order for injunction must always fail if the plaintiff fails to establish positively the identity of the land to which he claims with the land the subject matter of the claim”. And since in the present case, the Defendant sought to be declared the lessee of Plot No. 25, Block A, Patuda, he would also be expected to meet the requirements set out above in respect of a plaintiff.
The Plaintiff’s testimony in support of his claim was that in 1978, he took a grant of land for farming purposes from the Odikro of Ampeyoo. The land was located on Agyeiwa Stool Land, and a lease was executed for him to evidence the grant. The Plaintiff said after the grant was made he entered into occupation and, for 18 years, undertook livestock and crop farming thereon. He testified further that in the course of time the area granted him became part of the development area of the town and in 1996, his land was demarcated into building plots. Some of the demarcated plots were allocated to him, and it was in respect of some of those plots that he had instituted the action. The Plaintiff said a deed of assignment was executed for him and thereafter, the Odikro of Ampeyoo called Kwaku Frimpong gave him allocation papers in respect of the plots. He tendered Exhibits A, B, C and D in support of his testimony. The Plaintiff testified further that after the deed of assignment was executed for him, he took immediate possession of the plots.
The Plaintiff said sometime in 2005, he visited the property only to find that the Defendant was constructing a house on two of his plots. He said when he confronted the Defendant, his response was that the plots had been sold to him by his brothers-in-law, Kofi Kusi and Yaw, who had claimed that they were part of Patuda Stool land. He said when, later, he tried to verify the Defendant’s claim from the Odikro of Patuda, the Odikro denied any involvement in the allocation to the Defendant. He said the Head of the Patuda Family asked Opoku Dwuma and the Patuda chief, Kenneth Ofori, together with a friend of theirs called Amankwaa to accompany him to the land and there, the Head of Family made it clear that the land did not belong to Patuda. The Plaintiff said on the 25th of November, 2005, the Defendant, the Chief of Patuda and one Amankwaa came to his house and at the meeting in his house, the Defendant pleaded with him to sell the plots to him to enable him complete the building he had started constructing on the plots. He said after consulting with his brothers in respect of the Defendant’s proposal, he and his brothers agreed to sell the plots to the Defendant at GH¢6,000.00 but the Defendant said he did not have money then.
Regarding Exhibit A, the Plaintiff confirmed during cross-examination that it evidenced a grant to Kitag Farms and that Kitag Farms was not a registered company. He explained that even though he had no registered documents on Kitag Farms, he had the intention of registering it. He stated that he stood for Kitag Farms and that the farm was his. Even though he had stated earlier that Exhibit B was an assignment from the Ampeyoohene and Kitag Farms to himself, further down in his cross-examination, the Plaintiff said the plots in Exhibit B were given to Kitag Farms. He also confirmed that among the properties covered by Exhibit B, there was a plot described as Plot 19 and further confirmed that Exhibit C covered Plot 19 and pre-dated Exhibit B.
Among the witnesses called by the Plaintiff was Nana Osei Akoto, who testified as PW.1. He told the trial Court that he knew the locations of the two plots claimed by the Plaintiff. He said the Plaintiff purchased the plots from the Chief of Ampeyoo, Nana Kwaku Frimpong and that it was through him that the Plaintiff got the land. Nana Osei Akoto also told the trial Court that the Defendant once approached him and pleaded to be allowed to purchase the land in dispute. He said they agreed on the sum of GH¢6,000.00 but the Defendant said he did not have money at the time and he never saw the Defendant again till he saw him in Court. The witness confirmed during cross-examination that Exhibit A represented a grant to Kitag Farms and that the subject matter of the grant was located at Ampeyoo.
Another witness called by the Plaintiff was Nana Owusu Amankwaa, who testified as PW.2. Nana Owusu Amankwaa said he was the Chief of Patuda and that he knew the location of the disputed property. He said it is located on Ampeyoo Stool land which shares boundary with Patuda Stool. He confirmed that around the year 1994, the Odikro of Ampeyoo was Nana Frimpong. He stated that the disputed property was not part of Patuda Stool Land but rather belonged to the Ampeyoo Stool. He stated that through his wife, he got to know about an advertisement in the Pioneer that the Akyempemhene, who was his overlord, had destooled him. He however stated that until he heard about the advertisement, he was not aware of any proceedings in respect of the Patuda Stool and he maintained that as at the date of his testimony, he remained the Odikro of Patuda.
The third witness for the Plaintiff, Kofi Nsiah also confirmed that he knew the disputed property and that it was located at Ampeyoo. He said his uncle called Kwaku Frimpong was the Odikro of Ampeyoo. He said sometime in 1978, the Plaintiff approached his uncle for a grant of land for farming purposes and his request was granted. He said he was among the persons who were appointed by his uncle to demarcate a portion of the land for the Plaintiff. He also testified that the Plaintiff went into possession of the land and he remained in possession until 1986 when it became part of the development area of the town and was plotted. He said the Plaintiff was given some of the plotted lands and the Stool also took its portion. The witness stated that since the plotting was done, the Plaintiff had been in possession of the land until the present dispute arose. He said the Ampeyoo land shares boundary wlth Sokoban, Patuda and Akatamanso. The witness stated during his cross-examination that another name for the Ampeyoo Stool is Agyeiwaa Stool and that it had been so since Otumfour Osei Tutu I married Agyeiwaa.
In his testimony, the Defendant confirmed that he knew Plot No. 25, Block A, Patuda, and asserted ownership of that plot. He said he purchased the land from the people of Asantehemaa at Patuda. He mentioned his grantors as Odikro Nana Sarpong II, also known as Kenneth Ofori, Opanin Nkrumah, and Opanin Yaw Agyemang. The Defendant stated that when he purchased the land he was given an allocation paper signed by the Odikro and the Abusuapanin. He tendered a copy of the allocation paper and it was received in evidence as Exhibit 3. He said a lease was prepared for him in respect of the plot and he tendered the lease as Exhibit 4. The Defendant said that when the plot was initially allocated to him, there were rocks on it and he spent three months clearing the land before he built on it. He said while he was developing the land, the Plaintiff confronted him with a claim that the land belonged to him. He said he told his grantors about the Plaintiff’s claim and his grantors asked him to carry on with his work on the land. He denied having ever proposed to purchase the disputed land from the Plaintiff.
During his cross-examination, the Defendant confirmed that the lease he tendered was granted him while the suit was pending in Court. He also denied a suggestion by Counsel for the Plaintiff that the Plaintiff had a lease in respect of the disputed property. He stated that if the Plaintiff had a lease elsewhere he would not know but it would not be in respect Plot No. 25, Block A.
The Defendant’s first witness was Nana Owusu Ansah II, who described himself as Otumfour’s Apentenghehe. He confirmed that his Stool was the Apenteng Stool referred to in Exhibit A. He said the person mentioned in Exhibit A as Nana Bonsu was his uncle and he succeeded him when he died. He confirmed that the land at Ampeyoo belongs to the Apententeng Stool as stated in Exhibit A and he also stated that he was currently the overlord of Ampeyoo. He said he knew the land in dispute and stated that it is on the boundary between Ampeyoo and Patuda. He however said that the land falls on the Patuda side. He said the land his family granted the Plaintiff in the area is not the land in contention in the present case. During his cross-examination, the witness stated that when the boundary was set for the grant to the Plaintiff to be made, it was realised that the Plaintiff’s land did not fall within his Stool Land. At the same time, however, he acknowledged the lease executed for the Plaintiff by his predecessor in respect of the land as genuine and not a fake. He explained that when he became Apentenghene an issue arose before the Asantehemaa in 2009 and Nana Asantehemaa appointed some elders to fix the boundary. He said it was then that it was discovered that the land belonged to Asantehemaa but had erroneously been considered as his land. He said since then they had not considered that portion as theirs. He explained that it is the chiefs who fix boundaries so if they fix boundaries and they came to agreement, that was the end of the matter. Elsewhere in his cross-examination, the witness acknowledged that the Ampeyoo land the Plaintiff is occupying was granted by the Ampeyoo Stool and that he was bound by that act.
The Defendant’s second witness was Opanin Kusi Obuadum, who described himself as Odikro of Patuda. He told the trial Court that Plot No. 25, Block A, Patuda, was granted to the Defendant by his uncle and he confirmed Exhibit 4 as the lease executed for the Defendant when the grant was made. He told the Court that when the Plaintiff brought this matter to Court, they informed the Asantehemaa, as custodian of the land, about it and she delegated elders to go and assess the boundary and when the assessment was done, all the elders accepted that the disputed land formed part of Patuda Stool Lands. During his cross-examination, DW.2 confirmed that Exhibit 4, the Defendant’s lease, was dated 27th January, 2012 and that when it was prepared the matter was pending in Court.
The Defendant’s third witness was Afua Fofie, who described herself as Obaapanin of Ampeyoo. She testified that she knew the disputed property and that it is located at Patuda. She said the disputed land did not belong to the Plaintiff as alleged by him. Even though she had stated in her testimony-in-chief that there had been a boundary dispute between Ampeyoo and Patuda, the witness denied during her cross-examination that she had said so.
As has been observed above, since the Defendant counterclaimed, he bore the same evidential responsibility as the Plaintiff. In evaluating the evidence, therefore, the same standards ought to be applied to his case as would be applied to the Plaintiff’s case. Now, it is clear from the above summary of the evidence that the Plaintiff and the Defendant derived the respective titles they claimed from different Stools – the Plaintiff from the Ampeyoo Stool, and the Defendant from the Patuda Stool. This being the case, in my view, the first step towards assessing their respective roots of title should be the making of a determination as to the Stool within whose land the disputed property falls.
The Plaintiff’s contention was that the disputed land formed part of Ampeyoo Stool land, and he brought witnesses to support that position. The Defendant also contended that the disputed land formed part of Patuda Stool land, and he also got witnesses to support his position. It is particularly interesting that while for the Plaintiff, a witness who described himself as the Chief of Patuda testified that the land did not form part of Patuda Stool land but rather belonged to the Ampeyoo Stool, another witness, DW.1, who described himself as Apentenghene and overlord of Ampeyoo, testified for the Defendant that the land was part of Patuda lands and did not belong to Ampeyoo. I think however that if the truth in this matter is to be discovered, it should lie somewhere between the testimonies of these two witnesses.
The trial Court after assessing the testimony of DW.1, Nana Owusu Ansah, expressed the view that he was not a credible witness. In its view, the credibility of Nana Owusu Ansah had been completely destroyed by cross-examination. And recalling what Aikins JSC stated in Bonney Vs. Bonney (supra) about the deference appellate courts needed to accord findings of fact made by courts of first instance, this view of the trial Court is one which this Court cannot ignore.
But even while exercising caution in respect of Nana Owusu Ansah’s testimony, I still consider significant his explanation as to why at the same time that he considered as not belonging to his Stool (the Ampeyoo Stool) the land which by Exhibit A the Stool granted to the Plaintiff, he insisted that the grant the Stool made by Exhibit A was genuine. As may be recalled, Nana Owusu Ansah explained that when he became Apentenghene, an issue once emerged before the Asantehemaa in 2009 regarding the boundary between Ampeyoo and Patuda and a group of elders constituted by the Asantehemaa to look into the matter came to agreement on the boundary by virtue of which the land granted to the Plaintiff became part of Patuda lands and not Ampeyoo lands. Nana Owusu Ansah explained further that it is chiefs who fix boundaries and so if they came to agreement on boundaries that was the end of the matter. Reading Nana Owusu Ansah’s insistence that Exhibit A was genuine together with his account of the outcome of the 2009 investigation into the boundary between Patuda and Ampeyoo, I get the impression that Nana Owusu Ansah may have had a change of mind about the location of the disputed land, not on the basis of what the true position was at the date of Exhibit A, but on the basis of what was agreed by the elders after they had investigated the boundary. In this respect, in the sense that at the date Exhibit A was made the disputed land was within Ampeyoo land, Nana Owusu Ansah could rightly say that Exhibit A was genuine. However, in the sense that in 2009, the elders reached a decision the outcome of which was that the disputed land was outside Ampeyoo land, Nana Owusu Ansah appeared not to find himself in a position to claim the disputed area as part of Ampeyoo land.
But is the position tenable that it is chiefs who fix boundaries and therefore whatever agreement they reach on boundaries is the end of the matter? Chiefs may have power to fix boundaries but, in my view, that power cannot go with power to compromise acquired or accrued interests or rights of citizens, especially citizens who did not have the opportunity of participating in the proceedings leading to the fixing of the boundaries. In the present case, if at the date of Exhibit A, the disputed land was located in Ampeyoo but, for jurisdictional convenience, was made part of Patuda lands in 2009, the Plaintiff’s interest in the land cannot be compromised by the 2009 arrangement. Also, the boundary-fixing exercise was undertaken at a time when this suit was pending and when, therefore, there was an incentive to manipulate the exercise to cure deficiencies in the case of one party or the other. In this circumstance, hardly any probative value could be attached to evidence of the exercise and its outcome.
Also to be questioned is the propriety of the exercise itself. Reading the evidence regarding the exercise, I see it as clearly interfering with the matter before the trial Court and if it was done wilfully, it certainly constituted contempt of Court. The trial Court described it as “an unlawful attempt to usurp the powers of the High Court”, and I agree with that Court. After a careful consideration of the evidence on record regarding the location of the disputed property, it seems to me that the balance of the probabilities favours Ampeyoo as the location.
But the evidence provided by the Defendant in support of his counterclaim is not evidence that establishes a root of title traceable to Ampeyoo. The Defendant’s oral testimony and Exhibits 3 and 4, all point to a claim to title derived from Patuda and that claim cannot succeed in the face of the determination this Court has made that the property in dispute falls within Ampeyoo land. The Defendant’s counterclaim is accordingly dismissed.
The Plaintiff on the other hand, claims to have acquired the disputed property from Ampeyoo and I consider the evidence provided by him worthy of assessment to determine whether it establishes his claim to be declared owner of the disputed property. The trial Court considered that on a preponderance of the probabilities, the Plaintiff had established a better title to the land in dispute and the Plaintiff’s claim therefore had to succeed. I think, however, that the case is not just a matter of comparing the respective cases presented by the parties. As has been noted above, for an action for declaration of title to succeed, apart from disclosing a good root of title and acts of possession exercised over the disputed land, the evidence led must establish positively that the subject matter of the claim is the same as that in respect of which the evidence has been led. If the requirements or any of them are not met, the action fails. There is nothing like party A met more of the requirements than party B. If in spite of party A meeting more of the requirements, he still failed to make a good case for declaration of title, his action must fail.
The Plaintiff’s claim will therefore not succeed just because the Defendant’s counterclaim has failed. The evidence produced by the Plaintiff will need to be assessed for its legal import to be determined. The writ of summons herein shows that the disputed property is Plot Nos. 24 and 25 situate at Ampeyoo and, as may be recalled, he testified that the said plots were carved out of a parcel of land which the Odikro of Ampeyoo had granted him in 1978 for farming purposes. He tendered Exhibits A, B, C and D as documents establishing his claim to ownership of the said plots.
Exhibit A is an indenture dated 19th October, 1978, made between Nana Bonsu, Nana
Kwaku Frimpong and Asantehene as 1st, 2nd and 3rd Parties respectively, and Kitag Farms, acting by its managing director Yaw Adu-Gyamfi. It purports to grant a fifty-year lease to Kitag Farms in respect of a parcel of land enclosing approximately 17.50 acres, to be used for agricultural and other purposes incidental thereto. Exhibit B is an indenture dated 20th August, 1996, made between Nana Kwaku Frimpong, Ampeyoohene as Assignor and Mr. Yaw Adu-Gyamfi of Kitag Farms as Assignee. It recites that the land the subject matter of the grant made by Nana Bonsu in 1978 to Kitag Farms for agricultural purposes had been demarcated into building plots and shared. And it declares, among other things, that following the demarcation, specified plots had been given to the Assignee absolutely for ever. The plots specified are Plot Nos. 1, 2, 3, 4, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 29 and 30 at Block A, and Plot Nos. 1, 2, 5, 8A, 1A, 9, 9A, 10, 10A, 11, 11A, 12, 12A, 13, 13A, 14 and 17A at Block B. Exhibit C is a letter dated 18th February, 1996 written on the letter-head of Agyeiwaa Stool Land, Ampeyoo, which appears to confirm the allocation of Plot No. 19, Block A, to Mr. Yaw Adu-Gyamfi. Exhibit D is also a letter dated 12th October, 1996 written on the letter-head of Agyeiwaa Stool Land, Ampeyoo, which appears to confirm the allocation of Plot No. 18 to Mr. Yaw Adu-Gyamfi.
Now, how do these exhibits establish the Plaintiff’s claim for declaration of title to the disputed property, which as indorsed on the writ of summons, is made up of Plot Nos. 24 and 25? The trial Court considered the Ampeyoo Stool as bound by Exhibits A and B and explained its position by resorting to the doctrine of feeding the estoppel. From my appreciation of the facts of the present case, however, I do not think it will be helpful to consider the relationship between the Ampeyoo Stool and the Plaintiff in terms of the doctrine of feeding the estoppel, or more fully, feeding the grant by estoppel.
What the doctrine of feeding the grant by estoppel says is that where a person, not being the owner of property, has fraudulently or erroneously represented himself as the owner of the property or as having authority to transfer an interest in the property and has purportedly made the transfer to a transferee who has purchased in good faith and for consideration, the rights of the transferee do not diminish. In this situation, the transferee has the option of rescinding the contract or keeping it alive. If he opts to keep the contract alive and subsequently the transferor acquires the interest he purported to transfer but which he did not have at the time of the sale, the interest will automatically go to the transferee. The bases of this are the law of estoppel, and the equitable principle that if a person promises more than he can perform, he must fulfil the promise when he gets the ability to do so.
In the judgment appealed from, the trial Court cited the case of Serwah Vs. Adjen II, alias Nkrumah  1 GLR 296, in which this Court, per Lutterodt JA, as she then was, explained the estoppel aspect of the doctrine in the following words:
“By this doctrine, where a man conveys or demises land in which he has not the legal estate or any interest whatsoever, he estops himself from thereafter disputing the validity of such grant or demise. In other words, there can be no reason for him to turn round later and argue that he passed no valid title”.
Considering the relationship between the Ampeyoo Stool and the Plaintiff as may be discerned from Exhibits A and B, I do not see estoppel as a controlling issue, and it does not also seem to me that the doctrine of feeding the estoppel quite accommodates the facts of the present case. My analysis of the facts is that the grant the subject matter of Exhibit A was purportedly made to Kitag Farms, acting by its “managing director”, Yaw Adu-Gyamfi. The evidence on record shows that Kitag Farms is not a legal person. But there is the principle of law that rights in property can only be vested in definite persons. (See Cheshire’s Modern Law of Real Property, Twelfth Edition). Kitag Farms, not being a person in law, could not hold land. And being non-existent, there could be no question of any person acting on its behalf to receive the grant of land purportedly made under Exhibt A. Kitag Farms could not take and, indeed, did not take, any grant. This means that the grant intended for Kitag Farms under Exhibit A failed and the legal interest in the subject matter of the intended grant remained in the Ampeyoo Stool. Here, the failure of the grant was not because the Ampeyoo Stool did not own the interest it represented itself as owning or did not have authority to transfer that interest as would be the case where the doctrine of feeding the estoppel operates; it was because the intended grantee or transferee was non-existent.
Now, the evidence shows that following the execution of Exhibit A, Yaw Adu-Gyamfi entered into occupation of the land intended for the non-existent Kitag Farms and undertook livestock and crop farming on it until the land was demarcated into building plots in 1996. Both parties had assumed that Yaw Adu-Gyamfi’s occupation was in pursuance of Exhibit A and following the demarcation, Exhibit B was made granting the specified plots mentioned above to Yaw Adu-Gyamfi as the Assignee. But did the Ampeyoo Stool have capacity to make Exhibit B in spite of Exhibit A and in spite of Yaw Adu-Gyamfi’s 18-year occupation of the land? In my view, it did. As just observed above, the grant Exhibit A intended for Kitag Farms failed and the Ampeyoo Stool maintained its legal interest in the land. Yaw Adu-Gyamfi was in occupation of the land but his occupation could not, in this circumstance, be considered adverse. As the holder of the legal interest in the land therefore, the Ampeyoo Stool had capacity to make Exhibit B. Yaw Adu-Gyamfi, being a party to Exhibit B, is bound by the demarcation and sharing of the plots and he cannot dispute same. The present action in which Yaw Adu-Gyamfi, the Plaintiff, has tendered Exhibit B in support of his claim confirms his acceptance of Exhibit B as binding on him.
But does Exhibit B support the Plaintiff’s claim to be declared owner of Plot Nos. 24 and 25? The specific plots that were granted to him have been set out above and they do not include any plots numbered 24 and 25. Without more, therefore, Exhibit B does not establish the Plaintiff’s claim in respect of Plot Nos. 24 and 25. And my search elsewhere in the record has not brought up any evidence, whether oral or documentary, that connects Exhibit B to the plots claimed by the Plaintiff. I have looked at Exhibits C and D and I find them only confirming the allocation of Plot Nos, 19 and 18 respectively to the Plaintiff.
In his written submission, Counsel for the Plaintiff was suggesting that Exhibits D and C explained that “plots 18 and 19 are now 24 and 25 Ampeyoo”. I do not however find any such explanation on the exhibits. On Exhibit C, against “Sir/Madam”, I see in brackets the figure 25, and on Exhibit D, again against “Sir/Madam”, the figure 24 appears in brackets. There is nothing to suggest that those figures represent plot numbers, and there is nothing to connect them to the plots specified on the exhibits. Counsel for the Plaintiff submitted that Counsel for the Defendant had every opportunity to cross-examine the Defendant on those figures but failed to make use of that opportunity. By this he seemed to be suggesting that any uncertainties created by those figures should be resolved in favour of the Plaintiff.
I however disagree with Counsel. Exhibits C and D were the Plaintiff’s exhibits. They were intended to tell the Plaintiff’s story, and it was in the Plaintiff’s interest that they told that story with clarity. I do not think Counsel for the Defendant owed the Plaintiff any obligation to help him repair any damage occasioned by his Counsel’s conduct of the case. The proceeding at which Exhibits C and D were tendered is recorded at page 42 of the Appeal Record. There, the Plaintiff is recorded as having stated, “I have documentary proof of what I have stated above. I wish to tender them”. There is then the Court’s order: “The lease, the deed of assignment and the allocation papers are admitted with objection and are marked exhibits A, B, C and D respectively”. As far as Counsel was concerned, that was the end of the matter with the exhibits. But surely, it was helpful to the Plaintiff’s case for the exhibits to be made to speak lucidly for him as to the plots he was claiming. Counsel however appears to have missed this and he asked the Plaintiff no questions about them. In respect of Exhibits C and D, no questions were asked to give the Plaintiff any opportunity to explain what the figures in brackets meant, or any relationship there might be between those figures and anything else in the exhibits. The exhibits were tendered as if they were self-explanatory and called for no clarifications. I am not impressed by the argument of Counsel for the Plaintiff suggesting that it was the responsibility of Counsel for the Defendant to cross-examine on the figures on the exhibits, and I reject same.
Where this leaves us is that even though all the plots mentioned in Exhibit B are within the land of the Plaintiff’s grantors, not all of them belong to the Plaintiff. The plots specified in Exhibit B do not include any plots identified by evidence with the plots in respect of which the Plaintiff is seeking a declaration of title in this suit. He cannot therefore get that declaration. He cannot also get an order for recovery of possession or damages for trespass or perpetual injunction in respect of any piece or parcel of land because he has not led any evidence that entitles him to those reliefs or any of them. The Plaintiff’s action therefore fails and the same is hereby dismissed.
In conclusion, this appeal has succeeded and the judgment of the trial Court dated 28th July, 2016 is hereby set aside. The Defendant’s counterclaim having been dismissed, he gets no relief thereunder.
K. N. ADUAMA OSEI
[JUSTICE OF APPEAL]
I AGREE SENYO DZAMEFE
[JUSTICE OF APPEAL]
I ALSO AGREE MARGARET WELBOURNE (MRS.)
[JUSTICE OF APPEAL]