IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL
KOFORIDUA - A.D 2018
NARTEY KWASI (SUBSTITUTED BY KWEKU NARH) AND ANOR (PLAINTIFFS/RESPONDENTS) vs. ASANTE AND OTHERS (DEFENDANTS/APPELLANTS)
DATE: 16TH JANUARY, 2018
SUIT NO: H1/17/2017
JUDGES: ACQUAYE JA (PRESIDING), GYAN JA, MABEL AGYEMANG (MRS) JA
MR. ERIC NARH FOR THE DEFENDANTS/APPELLANTS
MR FRANK DONKOR FOR THE PLAINTIFFS/RESPONDENTS
SAEED K. GYAN, JA
It had long ago been observed that hard cases make bad law. This is one such case in which sentiment ought to be taken out of the equation to achieve substantial justice in the peculiar circumstances of the case, mindful of Justice Wiredu’s old admonition delivered in his inimitable manner, in FRIMPONG AND ANOTHER V. NYARKO (1998-99) SCGLR 734 at page 742, as follows:
“The justice to be dispensed is justice within the law and not one of sympathy. Judicial sympathy, however plausible can never be elevated to become a principle of law”.
The record shows that this case began its journey in the corridors of our Judiciary as far back as 1987.
Indeed, on the 3rd day of September, 1987, the two original Plaintiffs in the case issued out a Writ of Summons in the Registry of the Koforidua High Court against five named Defendants, who were simply identified as:
The reliefs sought were for declaration of title to land at a place called Kumferi on Begoro Stool land; general damages for trespass; Accounts; Recovery of possession and Perpetual Injunction.
Before long, two persons, namely: Samuel Budu Asare and Appau Acquah applied to be joined as Co-Defendants purportedly representing a group described as Obiri Bekoe and Co. The Plaintiffs on their part had styled themselves as suing for themselves and on behalf of a group called Mawu Suom and Co. supposedly being a “syndicate of farmers”.
It is important to point out that apart from filing a statement of defence, which was substantially cast in the mould of the defence filed by the original defendants, the co-defendants also filed a counter-claim against the Plaintiffs by which they sought the following reliefs:
A declaration that the land the subject matter of the suit was acquired from the Begoro Stool by Obiri Bekoe and Co. in 1924 and registered as No. 1089/1983.
Recovery of possession of any portion or portions of the land unlawfully occupied by the Plaintiffs.
Perpetual Injunction restraining the Plaintiffs, their servants, agents and assigns from entering unto the said land and interfering with the title of the co-defendant as representing Obiri Bekoe and company.
By their Amended writ of Summons the Plaintiffs had specifically identified the land in controversy or in dispute as that located at a place commonly known as Kumferi on Begoro Stool land and bounded on one side by the property of Edu Nyarko & Co., on one side by the property of Oletu Nartey, Anomah & Co., on one side by the property of T.T. Kodjo & Co. and one side by Begoro stool Land and the property of Kofi Ani & Co.
It is not entirely clear, from the record, how and why a case which, on the face of it, appeared so pedestrian in nature had to linger in the bowels of the judiciary for about 28 long years before being delivered of judgment at the trial High Court.
Little wonder that His Lordship Henry A. Kwofie, JA who, sitting as an Additional High Court Judge, at the end of an interminable number of Judges, who had handled the case and who finally heard and midwived the delivery of the judgment in the case prefaced his decision with a lamentation couched in the following terms:
“This is an ancient case even by the standards and length of time for the hearing of land cases in this country. As the suit number shows, the writ of Summons and the accompanying statement of claim in this case was filed on 03-09-1987; that is almost 28 years ago. It is a sad commentary on the judicial system that it has taken 28 years for this case to be completed. This is an unacceptable aberration and is an indictment of the judicial process and all those who have participated in this unacceptable state of affairs”.
Not surprisingly, by the time Kwofie, JA took the bull by the horns and sought to bring the trial case to a final closure most of the parties had found eternal rest with their Lord Above.
Out of the original five (5) defendants, by the time the trial started, Asante, Kwame Kena and Kwaku Ben had died, leaving Kwame Asomani and Lord Issah. One of the Co-Defendants, Samuel Budu Asare had also passed on.
Considering that from the Writ of Summons, the Defendants were sued “jointly and severally” for trespass, it seems rather strange, and worth noting, that no steps were taken to substitute the Defendants who had died while the case was pending.
It is equally noted that, before the trial, one of the two Co-Defendants Samuel Budu Asare, who had died, was not also substituted.
The first Plaintiff, Nartey Kwasi, had also died, but he was duly substituted by Kweku Narh.
Whereas it may be asserted that, having regard to the position taken and outlined by the original Defendants in their statement of defence, their case may ultimately be said to substantially hinge on or rest upon the quality and strength of the case put up by the Co-Defendants, and hence that they stood together or fell with the Co-defendants, not substituting the dead Defendants was bound to have significant legal implications and consequences for the deceased and their successors in interest or title, in so-far-as the final outcome of the trial was concerned.
Examining the record of the proceedings, one other matter that seems to beg for answer is why, considering the circumstances of the case, none of the parties did apply for, and the Court itself did not find it necessary to order the preparation of a composite plan to cover the area or land in controversy.
Be that as it may, the case finally proceeded to trial, based on the issues set down for determination at the close of pleadings. [see page 10 of the record of Appeal (ROA)].
During the trial the 2nd Plaintiff gave evidence for himself and on behalf of the 1st Plaintiff as well as for the other members of the syndicate of farmers who were represented by the Plaintiffs. The Plaintiffs also called four (4) witnesses in support of their case.
At the end of the Plaintiffs’ evidence, Appau Acquah gave evidence as co-defendant, but called no witness in support of his case.
Issah Lord, the 4th Defendant, gave evidence immediately after that of Appau Acquah the Co-defendant. As in the case of Appau Acquah, the said Issah Lord did not also call any witness in support of his case.
Significantly, both Co-defendant, Appau Acquah, and 4th Defendant, Issah Lord, in their testimony did not state that they were giving evidence on behalf of anyone else. The record shows rather that each testified in their separate and individual capacity.
The net effect and legal implication, therefore, was that no evidence was proffered at the trial by the other Co-defendant, Samuel Budu Asare, as well as the 1st Defendant, Asante, the 2nd Defendant Kwame Kena, the 3rd Defendant, Kwamena Asamani, and the 5th Defendant, Kwaku Ben.
On 19th June, 2015, Kwofie, JA delivered his judgment in the case after Counsel for the parties had filed their written addresses.
After examining the evidence before the Court, and resulting from his assessment or analysis of the respective cases of the parties as well as the evidence tendered by the parties, the Learned trial Judge preferred the case of the Plaintiffs to that of the Co-defendant Appau Aquah and the 4th Defendant, Lord Issah.
The trial judge concluded his judgment in the manner as follows:
“On the whole I find on the preponderance of probabilities that the Plaintiffs have proved their case and I accordingly enter judgment in favour of the Plaintiffs in terms of reliefs (i), (iv) and (v). In terms of relief 2, I will award damages of GH¢5000 against the Defendants and Co-defendant for trespass. I will not grant relief 3 of the Plaintiffs claim. I will dismiss the Co-defendants counterclaim in its entirety. (emphasis supplied).
In effect, judgment was entered for the Plaintiffs in respect of the following reliefs, namely;
“1) A declaration of title to all that piece or parcel of land at a place commonly known as Kumferi on Begoro Stool land bounded on one side by the property of Edu Nyarko & Co., on one side by the property of Oletu Nartey, Anomah & Co., on one side by the property of T.T. Kodjo & Co. and on one side by Begoro Stool land and the property of Kofi Ani & Co.
2) General damages for trespass against the Defendants jointly and severally.
3) Recovery of possession
4) Perpetual Injunction restraining the Defendants, their agents, servants etc from having any thing to do with the land again”.
The Court refused to grant relief 3 indorsed on the Writ of Summons, being an account of proceeds “realised from the cultivation of corn on the land this year”.
Naturally, being aggrieved with and dissatisfied by the aforesaid judgment of Kwofie, JA the “Defendants/APPELLANTS” on 14/08/2015 filed a Notice of Appeal against the whole judgment praying that “the decision of the High Court granting those reliefs to the Plaintiffs/Respondents be reversed and judgment entered for the Appellants on their counter-claim”.
Initially, only one ground of appeal (the omnibus ground) was filed to the effect that the “judgment is against the weight of evidence” together with the customary indication that further grounds of appeal would be filed upon receipt of the record of appeal.
Upon leave granted by this Court on 27th February 2017, the following Additional grounds of Appeal were duly filed:
The trial Court misdirected it self in finding for the Plaintiff/Respondent without resolving the real issue in controversy, that is, whether Obiri Bekoe sold the land in dispute to Mawu Soum & Co., in 1953.
The court failed to consider, or completely ignored, the finding of fact made by the committee of PNDC Secretary, Eastern Region, which declared Obiri Bekoe & Co. owners of the land in dispute.
The learned trial Judge misdirected himself in finding against the Appellants on the ground that the 5th Appellant failed to call any witness to corroborate his case, even though there is sufficient evidence on record to establish his case.
Exhibits “3” Tenancy Agreement between Obiri Bekoe & Co., and Kwahu farmers dated 21st July, 1964.
Exhibit “4” field Report on Obiri Bekoe & Co., Lands at Kumfere.
Evidence of PW1 Daniel Nyakotey”.
At the trial, both oral and documentary evidence was tendered.
The judgment of the trial Court may be found from page 210 of the ROA.
I should say that the Learned trial judge appropriately and effectively sets out in sharp relief the cases of the parties and the facts relevant to the action and I, accordingly, will adopt same in this judgment without the need to repeat them here except as may be required in particular respects.
As noted earlier on in this judgment, the Defendants did file a statement of defence. They, however, did not file any counter-claim. The co-defendants, on their part, did file a statement of defence and counter-claim.
I have examined the record of appeal thoroughly. I have considered the pleadings filed in this case. I have read with great care the judgment of Kwofie, JA. delivered in the case on 19/06/2015, which is the subject of the instant appeal. I have also gone through the respective written submissions filed for and on behalf of the parties in this appeal.
I should say with some reasonable justification that, as was the position before the trial Court, the determination of the instant appeal must fall within a short or narrow compass.
Indeed, the various grounds of this appeal may properly fall within, and be taken under the omnibus ground of appeal, namely, that the judgment was against the weight of evidence led at the trial. I, accordingly, will approach this appeal in that spirit, unless there is the need to deal with greater particularity or detail any of the specific grounds of Appeal which I had outlined earlier on in this judgment.
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; OPPONG VS. ANARFI (2011) SCGLR 556; ABBEY VS. ANTWI (2010) SCGLR17.
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.
Discussing further the omnibus ground of appeal, Bennin, JSC in his usual didactic manner, has stated as follows:
“…… the sole ground of appeal throws up the case for a fresh consideration of all the facts and law by the appellate court. We are aware of this court’s decision in Tuakwa V. Bosom (2001-2002) SCGLR 61 on what the Court is expected to do when the ground of appeal is that the judgment is against the weight of evidence. It has erroneously been cited as laying down the law that when an appeal is based on the ground that the judgment is against the weight of evidence then only matters of fact may be addressed upon. Sometimes a decision on fact depends on what the law is on the point or issue. And even the process of finding out whether a party has discharged the burden of persuasion or producing evidence is a matter of law. Thus when the appeal is based on the omnibus ground that the judgment is against the weight of evidence, both factual and legal arguments could be made where the legal arguments would help advance or facilitate a determination of the factual matters. This court’s decision in Attorney – General v. Faroe Atlantic Co. Ltd. (2005-2006) SCGLR 271 at page 306 per Wood JSC (as she then was) cited by Counsel for the respondent is apt on this point”. See: Eric Kwame Amoah Vs. Ben Owusu Domena. Civil Appeal No. J4/13/2014 dated 30th July, 2014.
Now, where a 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. (NO.2) 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 I: 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 weigh 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”.
In the instant appeal, can it be said that the appellants had succeeded in showing or demonstrating that the impugned judgment is wrong either in law or on the facts, based on the grounds of appeal filed in this case or that, further or in the alternative, by virtue of rule 8(8) of the Court of Appeal Rules, C.I. 19, that there are other grounds upon which this court itself can properly rest its determination of the appeal before it?
I have examined the record thoroughly and dispassionately. I have also considered the judgment in issue in this appeal as well as the legal arguments raised by and contained in the legal submissions filed and placed before the court respectively by the Appellants and Counsel for and on behalf of the Plaintiffs/Respondents.
As earlier pointed out in this judgment, it is my respectful view, that a critical examination and consideration of the record would justify the position that the additional or further grounds of appeal filed by the Appellants could properly be subsumed and appropriately dealt with under the omnibus ground of appeal without any prejudice being occasioned the Appellants since that ground would seem to effectively and effectually dispose of all the salient issues raised for determination in this appeal.
Counsel for the Appellants argued the omnibus ground of appeal together with the first additional ground to the effect that the trial court misdirected itself in finding for the Respondents without resolving the real issue in controversy, namely whether or not Obiri Bekoe sold the land in dispute to Mawu Suom and Company in 1953.
It was the view of Counsel for the Appellants that the learned trial judge erred in presuming that the Co-Defendants did not own the disputed land even though the Plaintiffs/Respondents had by their Writ sought a declaration that they bought their land from the Co-Defendants, namely Obiri Bekoe & Co. in 1953. According to Counsel the trial Court should have made a positive finding whether the Plaintiffs indeed purchased the land from the Co-Defendants.
Citing the case of Mante Vs. Botwe (1989-90)GLR 479 and others Counsel for the appellants invited this Court to make the appropriate findings on the issue.
Counsel for the Appellants referred the court to certain pieces of evidence which could guide this court in the right direction to take the appropriate decision.
Counsel for the appellants maintained that there was no dispute with or about the identity of the land in controversy and that the trial judge accordingly fell into error in declaring that the land claimed by the Plaintiffs/Respondents was different from that claimed by the Appellants since the Plaintiffs had admitted that they acquired their land from the Co-Defendants.
It should, however, be pointed out immediately, that the record of appeal does not establish, contrary to what counsel has indicated, that the Plaintiffs did admit that they acquired the land from the Co-defendants. The Plaintiffs rather maintained that they acquired their land from one Obiri Bekoe personally.
Counsel for the Appellants relied on the W.A.C.A. case of Archie Bong Vs. Ita 14 WACA 520 where the Court held that the onus lay on the Plaintiff through out to prove the title which he seeks to have confirmed and that the said onus never shifts and in that regard it was not sufficient for the Plaintiff to rely on possession and argue that the Defendant had proved no better title.
Counsel for the Appellants, accordingly, invited the Court to reverse the trial judge’s finding on that issue.
In his response to the written submissions filed by Counsel for the Appellants, Learned Counsel for the Plaintiffs/Respondents drew attention to the fact that the Co-Defendants had filed a counterclaim and hence bore an equal burden to establish their title to the land they claimed in their counter-claim.
Counsel for the Plaintiffs/Respondents argued further that the Co-defendants had maintained that their syndicate, Bekoe & Co. had originally acquired their land in 1924 but then that land having subsequently fallen into a Forest Reserve Area they later obtained another land which was different from their 1924 acquisition. Counsel for the Respondents argued that the Co-Defendants had failed to establish correctly the factual existence of the Bekoe & Co. which had acquired land and that in any event the land contained in Co-Defendants’ Exhibit 1 was certainly not the same as the land acquired, owned and possessed by the Plaintiffs/respondents and which they had remained in uninterrupted possession since 1953 and must therefore be deemed to be the owners of their said land.
According to Counsel for the Respondents, the “admission by the Co-defendant that the land they acquired is different from the land the subject of dispute is very fatal to his claim to title to the land the subject of dispute”. In any case, Counsel submitted further that since the Co-defendant accepted that the land which was allegedly originally acquired by the syndicate referred to as Obiri Bekoe & Co. in 1924 had been taken over and had become part of the Forest Reserve their rights to that land had thereby become extinguished.
Counsel concluded his submission by maintaining that there was clear evidence before the trial Court to establish that the land contained in Exhibit 1 was different from that connected with Exhibit ‘A’ and that since the land in Exhibit ‘A’ belonged to the Respondents, as found by the trial Court, the judgment could not be said to be against the weight of evidence. That being so, the trial court could not be justifiably said to have misdirected itself.
The question is, have the appellants herein succeeded in demonstrating that the impugned judgment was wrong either in law or on the facts?
As noted earlier on in this judgment, I have examined the record of appeal thoroughly and dispassionately. I have also considered the judgment the subject of the instant appeal as well as the legal arguments raised by and contained in the legal submissions filed on behalf of the parties.
I am not persuaded that the Appellants had sufficiently, adequately or appropriately discharged the onerous burden cast upon them and shown proper cause why this court should intervene and set aside the impugned judgment.
In the Supreme Court case of Assibey V. Gbomittah and 2ors (2012) 47 GMH 61, Baffoe-Bonney, JSC quote with approval the Court of Appeal’s statement in the case in the manner as follows:
“…….. 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”.
In the case of Bisi V. Tabiri alias asare (1984-86) GLR 282 Adade, JSC delivered himself thus:
“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 of record, it is not open to an Appellant tribunal, except for just and compelling reasons to dismiss the findings made and the conclusions arrived at by the trial court”.
The trial judge gave a considered and reasoned judgment and disposed of the issues he understood to be relevant in determining the matter in controversy in the case.
As stated above, in the end, the Court found that the Plaintiffs had established their case to his satisfaction and hence deserved judgment in their favour. On the other hand, the Court found and accordingly, decided that the co-defendant Counter-claimant had failed signally to establish his claims before the court and rejected his case in its entirety.
Was the learned trial judge wrong in his decision as charged by the appellants in this appeal?
The Supreme Court of Ghana, speaking through Hayfron-Benjamin, JSC declared the law, in the case of Republic Vs. High Court, Kumasi; Ex parte: Atumfuwa and another (2000) SCGLR 12 at page 78, stated as follows;
“The principle, as clearly laid down in civil matters, is that the Plaintiff or the Applicant must lose where no evidence is led by either side, for, it is the Plaintiff or the Applicant who is seeking relief from the Court or Tribunal”.
Similarly, Azu Crabbe, C.J. expressed himself in the case of Kyeremeh Vrs. Kangah (1978) GLR 83 at thus:
“……. The burden of establishing his authority or capacity was upon the Plaintiff and where his evidence was unsatisfactory the judgment of the Court should be in the Defendant’s favour on the simple ground that it was the Plaintiff who sought relief, but had failed to prove that he was entitled to what he claimed”.
In the circumstances of this case, I believe that Counsel for the Appellants clearly misconceived the burden cast upon them when he sought to rely on the W.A.C.A. case of Archi Bong (supra) as quoted earlier on in this judgment. What Counsel quotes as the law in that case is clearly old law which is not entirely applicable under our present Evidence Act (NRCD323).
The Learned trial judge more forcefully and appropriately appreciated the present state of the law, as rightly outlined in the supreme Court case of in re Ashalley Botwe Lands, Adjetey Agbosu and others vrs.Kotey and others (2003-2004)SCGLR 420. The Supreme Court declared the current law in Holding 5 of the Ashalley Botwe Lands case (Supra) thus:
“(5) The Court of Appeal erred in holding that the defendants had no obligation to prove their defence. Under the provisions of the Evidence Decree, 1975 (NRCD 323), the burden of producing evidence in any given case was not fixed, but shifted from party to party at various stages of the trial, depending on the issue(s) asserted and/or denied. The trial judge therefore, had rightly held that the evidential burden fell on the defendants to lead credible evidence to displace the effect of their admission of the Plaintiffs undisturbed possession of the disputed land. Consequently, under sections 14 and 48 of the Evidence Decrees 1975 (NRCD 323), a rebuttable presumption of ownership was raised in favour of the Plaintiffs. The Defendants must lead credible evidence to displace such presumption with a view to avoiding a ruling against them on the issue of ownership”.
Even more significantly, the Learned trial Judge, unlike Counsel for the Appellants, more fully and perspicuously appreciated the position and situation of the Appellants, especially the Co-defendant who had duly filed a counter-claim seeking declaration of title and perpetual Injunction against the Plaintiffs. The court rightly stated the law when it declared that:
“the same standard or burden of proof would be used to evaluate and assess the case of the Co-defendants against the Plaintiff with regard to his counter-claim”, citing the case of Jass Company Ltd vrs. Appau & Another (2009) SCGLR 265.
A deep study and proper examination of the record of appeal and relevant material on record in respect of this case suggests clearly that there was an issue of the proper identity of the land in controversy in the case.
The root of title was called into play in the controversy before the Court.
In this regard, the Learned trial judge was not entirely right when he declared that “both the Plaintiffs and the Co-defendants all trace their root of title to Obiri Bekoe who bought the disputed land in 1924 from the Begoro Stool..”.
From the pleadings and on the evidence before the Court, what clearly stands out is that whereas the Plaintiffs/Respondents herein consistently maintained that they, through their predecessors in title, acquired the land they are claiming, and which they describe as the land in dispute, directly from one W.S. OBIRI BEKOE of Abiriw-Akwapim in 1953, the Co-defendants in their pleadings, and, subsequently, through the evidence of the co-defendant, Appau Acquah, trace their root of title to a supposed syndicate of Akwapim farmers designated as OBIRI BEKOE and Company by way of an original acquisition dating back to1924.
The Plaintiffs’ evidence is to the effect that the said Obiri Bekoe personally sold his interest in the land to their predecessors in title who were a group of identified Krobo Farmers who had formed themselves into a loose syndicate of land holders referred to as Mawu Suom and Company. According to the Plaintiffs/Respondents herein Obiri Bekoe personally signed and thumb printed documents evidencing his transfer of his interest and rights in the land to their said predecessors in title and effectively put them in possession of the land which they had owned and been in uninterrupted possession for over 50 years. They claimed that some of the documents got lost in time. But they tendered in evidence what they had.
The Co-defendants on their part traced their root of title to the syndicate of farmers called Obiri Bekoe and Company. The Plaintiffs strenuously and consistently denied knowledge of and dealings with the aforesaid syndicate of land holders called Obiri Bekoe and company in relation to the land in controversy.
Significantly, the Co-defendants through their pleadings and in the evidence proffered in Court had made an allusion, which constitutes an admission in law, that they knew of the Plaintiffs possession of the land in dispute except that the Plaintiffs were on the land by their permission as their Abusa tenants. Strangely enough, despite the said admission in respect of the Plaintiffs’ possession of the land in dispute, the co-Defendant/Appellant herein did not provide a scintilla of evidence to back the said allegation of a customary tenancy which had spanned 50 years or more, beyond his mere say so!!
The Plaintiff/Respondents herein had called witnesses they referred to as their boundary owners to testify in their support.
The Plaintiffs and their witnesses testified that the land they acquired and took possession of was virgin forest which they subsequently reduced into cultivation and had over the years planted Cocoa and food crops and established farm settlements and over 30 villages therein. The Co-defendant admitted the establishment of these settlements on the land by the Plaintiffs since the early 1960’s.
It is obviously clear, from the record, that the land which the Defendants and the Co-defendants allege was acquired by the syndicate called Obiri Bekoe and company syndicate in 1924 is not the same land that the Plaintiffs contend was personally sold to their predecessors in title by Obiri Bekoe.
The trial Court made specific findings of fact, including the fact that the Plaintiffs and members of their syndicate had been farming on the disputed land “since around 1960”, and that they had over 33 cottages and built schools on the land.
More significantly, the Learned trial judge asserted positively, as a finding, that: “Although the Co-defendant has suggested that the Plaintiffs have had these farms, and built cottages and schools with the consent of the Co-defendant, the evidence clearly shows that this is not true.
To back the above findings of fact, the Learned trial judge reasoned as follows:
“Throughout this trial the Co-defendant did not call even a single boundary owner or a single member of his syndicate to support his case that the Plaintiffs are on the land given to the Co-defendants syndicate. The Co-defendant’s evidence illustrates the wisdom underlying the rule in the oft- Cited case of Mojolagbe vrs Larbi (1959) GLR 190 that where a matter is capable of proof in a positive way, it should be so proved and that a court ought not in such a case, accept as proof mere sworn assertions which were controverted in pleadings and the evidence”.
In other words, the trial judge disbelieved not just the case put forward by the defence, the key defence witness in the person of Appau Acquah was totally disbelieved and his evidence on the critical issue of the land in dispute was declared by the court as “not true’.
It is the law, which is clearly established, that the findings of the trial Court ought not to be disturbed except upon clear proof that they are wrong.
The only evidence adduced on behalf of the Co-defendant/Appellant was that led by himself. This is not to say that a court of law properly advising itself could not depend or rely on the evidence of a solitary witness to found its judgment if it finds the witness credible, solid and reliable.
In the instant case, the solitary witness had been discredited by the court as not being a witness of truth.
I have no hesitation whatsoever in holding that the trial Court’s findings and its conclusion are obviously and amply justified by the evidence on record.
In this regard, I am fortified in my opinion by the time tested admonishing of Adade JSC in Bisi vrs. Tabiri (supra) to the effect that: “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”.
Smith, J in Davis vrs Ashon (1895) Ren. 210 intoned thus:
“I am not myself free from doubt in the matter. There is much to be said on both sides; but being in doubt will not justify me to disturb a judgment which the court below had no doubt in delivering”.
And, in the case of Amissah vrs. Painin (1900) Ren. 179 the court declared as follows:
“where there is little to choose between the parties in the written evidence, the make-weight which turns the scale is the human element. This is before the court below but not before the Appellate court.”
Additionally, in the case of Ntsia vrs Ellis (1901) Ren. 204 the court was at pains to point out as follows:
“The impression made on the mind of the judge of the court below who had the opportunity of seeing the witnesses must guide the appellate court unless it appears plainly on the evidence that the judge was wrong.”
From the evidence on record, it is more than fair to come to a strong determination that the possession, and hence the ownership of the Plaintiffs/Respondents herein in respect of the land in dispute is an accomplished fact.
And in this respect, I choose to take guidance from the case of Tetteh Kwaku vrs. Kpakpo Brown, which is referred to in the case of Hammond vrs Ababio IV (1912)D&F (1911-1916)18 where Griffith, CJ cautiously delivered himself thus:
“where there is so much uncertainty and so much indefiniteness, and where land has until recently been practically of no value, all that the courts can do, and what they ought to do, is to accept accomplished facts, whatever may have been the state of things 200 years ago”.
The Co-defendants sought to rely on exhibit 1 being an indenture for the sale of land signed between Nana Ofori Atta II (Okyenhene) and his elders and Obiri Bekoe and company in April 1973 in connection with land specified in the first schedule and located at a place called “BROSANKAN” on Begoro Stool Land with stated boundaries.
Without a composite plan available to the court, it is obviously impossible to make a positive determination that the land contained in Exhibit 1 is the same as the land in dispute as defined or delineated by the Plaintiffs on their writ of summons and Statement of claim.
That land is declared by the Plaintiffs to be located at a place called KUMFERI on Begoro stool land with specified boundaries.
On the face of it, the Plaintiffs/Respondents’ land indorsed on their Writ of summons is different from the co-defendants land described in Exhibit 1.
And since it is an uncontroverted and established fact that the Plaintiffs/Respondents are occupying the land in dispute, the onus shifts to the Co-defendant/Appellant to satisfy the court, upon the balance of probabilities, that their land contained in Exhibit 1 is the very land occupied by the Plaintiffs/Respondents and which, therefore, constitutes the property in dispute in the instant litigation.
On the evidence before the Court, the Co-defendant/appellant had woefully failed the test and standard of proof. And with that his case must fail even in connection with his failure to satisfy the identity test of the land in controversy.
It must be observed that in the counter-claim, the Co-defendant/appellant sought a declaration of title to land. That declaratory remedy invoked the exercise of the court’s discretion.
The trial judge refused to grant the Co-defendant/appellant the declaratory relief sought. This then, in a way, constitutes an appeal against the exercise of a court’s discretion.
The Appellant in my opinion, had failed to demonstrate that the Court exercised its discretion perversely to his detriment.
Although she was dealing with a matter related to stay of execution, Wood(Mrs) CJ made the following important clarification on the issue of proof of material facts in the case of Kwasi Owusu & Anor vrs Joshua Nmai Addo & Anor. Civil Appeal No. J4/50/2014 dated 30/7/15. Her Ladyship declared as follows:
“……… a challenge to any of the material facts on either side of the legal divide triggers the full panoply of the evidentiary rules related to the burden of proof provided under sections 10 and 11 of the Evidence Act, 1975 NRCD 323. Thus if a party challenges a material fact as deposed to and the party on whom the burden of persuasion is cast fails to discharge the legal burden that fact may, properly be classified as an unproven fact and cannot ground a grant or refusal of order of stay. And so clearly, whether or not a matter constitutes an unproven fact, material or matter is a mixed question of law and fact, which issue is decided on a case by case basis”.
It is worth noting that the Co-defendant/appellant signally failed, on the evidence before the Court to establish a proper nexus with respect to his capacity, linking him and his alleged Obiri Bekoe and Company Syndicate to W. S. Obiri Bekoe of Abiriw-Akwapim, the individual who allegedly personally sold the land in dispute to the Plaintiffs/respondents herein.
The fact that Obiri Bekoe may have headed a syndicate of farmers, as alleged by the Co-defendant/Appellant does not mean he did not or could not have acquired other land in his own right which he could dispose of in his personal capacity and in his own right.
From the evidence on record, it seems to me more probable than not that W. S. Obiri Bekoe sold his own land to the Plaintiffs/Respondents’ predecessors in title rather than land belonging to the Obiri Bekoe and Co. Syndicate. And that, obviously, explains why so very long after the disappearance of the individual called W. S. Obiri Bekoe the Obiri Bekoe and Co. syndicate failed to take any step to assert their title or ownership of the land in dispute which was obviously in the possession or ownership of the Plaintiffs/Respondents.
As personal property of W. S. Obiri Bekoe, it could only have been the customary successors or administrators of W. S. Obiri Bekoe who could validly have the capacity to challenge any encroachment of Obiri Bekoe’s land instead of a nebulous syndicate referred to as Obiri Bekoe & Co.
And speaking further about nexus, I find it significant, and even more important, to add that, from the record, the defendants and the Co-defendant/Appellant herein did not proffer any evidence which establishes a positive and objective link between the land which they allege that the entity or syndicate called Obiri Bekoe & Co. acquired in 1924 and the land which the Plaintiffs maintain they obtained from the person, W. S. Obiri Bekoe, which constitutes in fact the property in dispute in the current litigation, and which the evidence proves has been in the possession of the Plaintiffs/Respondents herein for well over 50 years.
In the case of Kwao II V. Ansah II, Francois, JA (as he then was), stated in Holding (1) of the Head notes thus:
“(1) To hold that despite proof of long possession and user stretching for some 200 years, after an original grant, a party could lose his land merely because the traditional history was unclear as to whether the possession derived from purchase, gift or grant was to forsake the substance for the trappings and would neither be right in equity nor sound in law”.
His Lordship suggested further that, in appropriate cases, the substantial exercise of user should be admissible in proof of ownership and discrepancies arising from the failure to describe accurately the quality of the original grant should not be fatal to the claim for declaration of tittle to the land in dispute.
I should emphasise that, from the record and in respect of the evidence available, the Plaintiffs/Respondents herein, as against the Co-defendant/Appellant, presented a more cogent, credible and effectual proof of title to the land in dispute so as to merit the judgment given in their favour by the trial court.
In the result, I find no merit in this appeal on the ground that the judgment is against the weight of evidence and the related grounds argued together with that omnibus ground of appeal by the Appellant. Accordingly, I have no hesitation in dismissing the appeal.
The Appellants had, in my view, made a rather lame criticism of the trial court having either ignored or not having taken a more serious note of the determination by the so called committee set up by the PNDC Secretary for the Eastern Region which allegedly declared Obiri Bekoe & Co. as owners of the land in dispute (Additional ground) “B”. That committee was neither a statutory nor judicial entity which could have the capacity or authority to make any decision binding in law in the circumstances of the case. The Appellants’ attack on the trial judge’s decision on the basis of the alleged determination of that mere administrative body is clearly misconceived and misdirected.
It would be seen that the Defendants have featured less prominently in the discussions in this Appeal. That is as it should be because, from the record, the Defendants have very little legs to stand on in the case as a whole.
As noted earlier on in this judgment, most of the Defendants died before the trial started and they were not substituted. Of the two remaining defendants only the 4th defendant mounted the witness box to give evidence for himself only. From his evidence, the Defendants had, upon the encouragement of the Kwahu Paramount Chief, entered the land on the mistaken view that the land belonged to the overlord of Kwahu. It is an undisputed fact that the Kwahu Overlord lost the litigation over the larger land thereby driving the defendants to seek refuge with the Co-defendants by entering into so-called tenancy agreements in the hope of having a foothold on the land which they had encroached upon and had become trespassers on.
The Co-defendants’ entity, namely, Obiri Bekoe & Co., which they found as the plank to rest on having sunk, they naturally drowned with their benefactors.
Exhibit 1 which the Co-defendant/Appellant relies on, having been executed in 1973 could not retrospectively validate so-called tenancy agreements they supposedly entered into with Obiri Bekoe & Co. in the 1960’s.
The evidence proffered by the 4th Defendant, therefore, was not sufficient to save himself and, least of all, the other Defendants in the case. Having staked with the Co-defendant in a wild gamble and lost, the Defendants, qua Defendants, cannot have any better case than their assumed benefactor, the Co-defendant/Appellant, in the instant appeal. They have, accordingly, lost any claim they may have nursed to the land in dispute with the failure of the Co-defendant in the instant appeal.
I should say, in conclusion, that the determination of the essential and fundamental ground of appeal in this case, namely that the judgment was against the weight of the evidence led, renders otiose and insignificant the other grounds contained in the Additional grounds of appeal filed and, consequently, no useful purpose would be served discussing those matters further in this judgment.
From the foregoing, and on the basis of the evidence on record, I am reasonably satisfied that the trial High Court, Koforidua, was sufficiently justified in finding for and entering judgment in favour of the Plaintiffs/Respondents herein and, consequently, in dismissing the Co-defendant/Appellant’s counter claim in its entirety.
In the event, I find no difficulty at all in unhesitatingly dismissing the appeal as being without merit.
Accordingly, the judgment or decision of the Koforidua High Court, dated 19th June 2015 is hereby affirmed.
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 COURT OF APPEAL)