IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL
ACCRA - A.D 2018
NII AYITTEY ANIMELEY AND BISHOP W.T. CHEETAM -(Plaintiffs/Respondents)
MRS. LAURA K. GYAMPOH - (Defendant/Respondent)
DATE: 29 TH MAY, 2018
CIVIL APPEAL SUIT NO: H1/82/2018
JUDGES: OFOE J.A. (PRESIDING), ACKAH-YENSU J.A., SUURBAAREH J.A.
MR. J.K. GYIMAH FOR DEFENDANT/APPELLANT
MR. ANSAH-OBIRI FOR PLAINTIFFS/RESPONDENTS
This is an appeal by the defendant/appellant, called Appellant hereinafter, against the judgment of the High Court, Accra dated 26th March, 2015. The action which was initially started by the first plaintiff/respondent as head of the Anyema Clottey Family of Achiaman, near Amasaman, was later joined in by the second plaintiff/respondent, upon an application, and who described himself as the lawful representative of Owura George Family of Nii Ahuma Kojo Family of James Town, Accra.
Following the order for joinder, the plaintiffs/respondents, who would be called Respondents hereinafter, filed an amended writ of summons on 28th October, 2013 in which they sought the following reliefs:
“(a) Declaration of title to all that piece or parcel of land situate, lying and being at Achiaman near Amasaman and containing an approximate area of 213.22 acres and more particularly described in the schedule hereunder.
(b) Recovery of possession of the said land.
(c) General damages for trespass.
(d) Recovery of arrears of ground rent in respect of a lease dated 31st August, 1979 and granted to plaintiff’s (sic) late father.
(e) An order directed to the defendant to discontinue with demolition of houses on the disputed land.
(f) An order directed to the defendant to seek the consent of the plaintiffs’ family before making grants in respect of the lease.
(g) Perpetual injunction restraining the defendant herself, her servants, assigns and those deriving title or authority from the defendant from dealing with the plaintiffs’ land.
Following the amendment of the writ of summons after the joinder, on 13th November, 2013, a process, headed “Statement of Claim of 2nd Plaintiff”, was filed. By the heading of the process, the respondents in the action thereby filed separate statements of claim.
The facts giving rise to the instant appeal are not in any controversy. On 31st August, 1979, one Theodore Edmund Nahm Adjei, father of the appellant, entered into a lease agreement with some members of the Clottey family of Achiaman, who described themselves as legal heirs and successors to the estate of Owura George of Accra. The lease was for 99 years with a proviso for renewal for the same number of years. The agreement was witnessed by leading members of Nii Ahuma Kojo family who appended their signatures and or marks to the document.
Upon the death of Theodore Edmund Nahm Adjei, the appellant, who is his daughter, applied for and obtained letters of administration in respect of his estate upon which she obtained a vesting assent which vested the disputed property in her. Eventhough the appellant’s father went onto register the lease, the respondents’ family, in 1997, purported to re-enter the land, subject-matter of the lease and granted sand winning permit to a company in 1998 upon which the appellant’s father instituted an action against them seeking a declaration of title to the land and an order for perpetual injunction, amongst other reliefs, and in respect of which, the defendants therein filed a counterclaim. This suit was however not pursued, following the death of the original plaintiff, even though the appellant was substituted as plaintiff therein.
The facts show that both the respondents and the appellant went on to register their title in the year 2005. Following interference with the disputed land by members of the respondents’ family, the appellant herein, sued and obtained judgment at the Circuit Court, Accra, against the family and upon which she obtained a demolition order and went onto the land to demolish unauthorised structures which gave rise to the action resulting in the present appeal.
The 2nd respondent, who in his statement of claim averred that the grant by the Achiaman members was without the consent and knowledge of the principal members of his family and further that, as caretakers, they have no authority to alienate without reference to the larger family, also alleged that the acquisition was through fraud, deceit and misrepresentation, and went on to state the particulars of fraud.
The appellant, who responded that the disputed land was properly acquired by her late father who had also paid rent for twenty years, went on to deny the allegations of fraud, deceit and or misrepresentation. She also averred that she has also paid rent after the initial payment was exhausted.
Upon the application for joinder, and following the close of pleadings, the following issues were set down by the respondents for determination:
“(1) Whether the defendant is using the land leased to her late father in September, 1979 for the purpose for which the lease was granted,
(2) Whether or not the defendant breached the terms of the lease granted to her late father in September, 1979,
(3) Whether or not the defendant has been paying ground rent in respect of the lease granted to her late father in 1979 to the accredited members of the plaintiffs’ family,
(4) Whether or not the lease, entered in September, 1979 with the Clottey family of Achiaman was procured through deceit and misrepresentation,
(5) Whether or not the Nii Ahuma Kojo family of James Town took part in the purported lease of the land,
(6) Whether or not the land belonging to the Nii Ahuma Kojo family of James Town was affected by the purported devise by the caretakers in the village.”
It is worthy to note that before the order for joinder, the 1st respondent had filed applications for direction setting out issues for determination and upon which the appellant filed additional issues one of which was whether or not the 1st respondent was the head of the Anyema Clottey family of Achiaman.
After the trial, the trial judge before going on to evaluate the evidence, vide pages 221f and 221g of the record of appeal, stated that the parties had identified and adopted the following issues for determination:
“1. Whether or not the plaintiff is the head of Anyima Clottey family of Achiaman,
2. Whether or not the defendant is using the land leased by her late father in September, 1979 for the purposes of which the lease was granted,
3. Whether or not defendant breached, the terms of the lease granted to her late father in 1979,
4. Whether or not defendant has been paying ground rent in respect of the lease granted to her late father in 1979 to the accredited members of the plaintiff’s (sic) family,
5. Whether or not defendant has demolished buildings and structures on the plaintiffs (sic) land,
6. Whether the lease entered in September 1979 between Theodore E.N. Adjei, Gideon Boi Tono Adjei with the Clottey family of Achiaman was procured through deceit, fraud and misrepresentation.”
Upon a consideration of the evidence led at the trial by the parties and their witnesses, the trial judge found for the respondents on all the above issues she set down and entered judgment for the respondents declaring them owners of the disputed land and making an order of recovery in their favour whilst restraining the appellant therefrom. The court also ordered the respondent to recover arrears of rent as well as damages.
Aggrieved by and dissatisfied with the judgment, the appellant has mounted the present appeal on the following grounds of appeal.
“(i) Judgment is against the weight of evidence.
(ii) The trial judge erred in rejecting the jurat in exhibit 3 in preference for oral evidence without cogent reasons.
(iii) In the exercise of her discretion to rely extensively on a document which was not tendered, the trial judge failed to exercise her discretion judiciously which has resulted in a miscarriage of justice and or want of jurisdiction.”
Although the Notice of Appeal contained a proviso about filing other grounds of appeal upon receipt of the record, non was filed or argued.
Before considering the appeal on its merits, it must be pointed out that even though the record of appeal does not contain entries as to when application for directions was taken and the issues adopted and set down for determination at the trial, the issues the trial judge found to have been adopted by the parties for determination appearing at pages 221f and 221g of the record of appeal, quoted earlier, do not seem to reflect all the issues that were set out by the parties.
The application for directions, filed on 22nd August, 2014 appearing at pages 105 and 106 of the record of appeal, was filed on behalf of the respondents after close of pleadings following the application for joinder.
This presupposes that the issues set out by the 1st respondent, and appearing at page 59 of the record of appeal filed before the joinder, are no longer relevant. The issues filed for determination at the close of pleadings were therefore the additional issues filed by the appellant at page 62 of the record of appeal and the issues filed on behalf of the respondents, after the joinder, at pages 105 and 106 of the record. This being the case, the issues the trial judge found to have been adopted for determination by the parties, did not include additional issue (2) at page 62 filed by the appellant, and issues (5) and (6) filed on behalf of the respondents at pages 105 and 106 of the record. It is also pertinent to note that even though issue (6), found by the trial judge as an issue adopted by the parties, is similar to issue (4) set down in the application for directions filed by the respondents at pages 105 and 106 of the record, it did not include the issue of fraud added by the trial judge nor did it touch on any transaction involving Gideon Boi Tono Adjei.
The 3rd ground of appeal is about the trial judge having failed to exercise her discretion judicially resulting in a miscarriage of just or want of jurisdiction by relying extensively on a document which has not been tendered in evidence. This ground of appeal arose from issue (1) of the additional issues field by the appellant relating to whether or not the 1st respondent was the head of the Anyima Clottey family of Achiaman. More than half of the submissions filed on behalf of the appellant was devoted to this ground of appeal. Despite the conviction and energy with which this ground was argued, it is my considered view that it was an exercise in futility as far as it was intended to challenge the capacity of the 1st respondent to institute the action.
With the joinder by the 2nd respondent, and his description as acting head of the Owura George family of Nii Ahuma Kojo family of James Town, Accra in paragraph 2 of the affidavit in support of the motion for joinder at page 77 of the record, as well as the averment in paragraph 1 of his statement of claim, as the lawful representative of the Owura George family of Nii Ahuma Kojo family of James Town, Accra, any issue about the capacity of the 1st respondent bringing the action was cured. With this conclusion, the court will proceed to consider the other grounds of appeal about the judgment being against the weight of evidence and the error on the part of the trial judge in rejecting the jurat in exhibit 3 and preferring oral evidence without cogent reasons.
It is trite learning that an appellant, who alleges that a judgment is against the weight of the evidence, assumes the duty of demonstrating to the appellate court that it is in fact so since a judgment is presumed to be correct as held in Amponsah v. VRA [1989-90] 2 G.L.R. 28 S.C. Upon such an assertion, the appellant is by implication saying that there are pieces of evidence on record, which if applied in his favour, would have changed the decision, or that certain pieces of evidence on record has been wrongly applied against him. It is necessary for such an appellant to clearly demonstrate the lapses in the judgment complained of. See the case of Djin v. Musah Baako [2007-2008] S.C.G.L.R. 686 at holding (1) in the headnote at page 687.
Upon such a ground of appeal, the primary duty of the appellate court is to examine the record of proceedings to satisfy itself whether the findings of the trial judge are supported by the evidence led at the trial, and, if they are not, the judgment ought to be set aside. See Koglex Ltd. (No. 2) v. Field  S.C.G.L.R. 175 at 184.
It is axiomatic that an appeal is by way of rehearing and as such the appellate court may draw its own inferences from established facts. It must however bear in mind that its function is not to evaluate the veracity of witnesses, and it should not substitute its own findings for those of the trial judge unless it can clearly show that the trial judge’s findings or judgment was not based on or supported by the evidence led at the trial. See Lagudah v. G.C.B. [2005-2006] S.C.GL.LR. 388 at 390/391. Where the trial court has articulated reasons for its decision/findings, an appellate court minded to set that decision or those findings aside, must provide reasons, as held in Effisah v. Ansah [2005-2006] S.C.G.L.R. 943 at 951/952.
As indicated, much ink was spilled on the issue of capacity upon which the third ground of appeal was based, but which I have found, did not arise upon the joinder of the 2nd respondent. Submissions in respect of the ground about the judgment being against the weight of the evidence were made along three lines. The first line of argument related to the findings on the issue of fraud, deceit and misrepresentation on the part of the appellant’s father regarding the acquisition of the land in dispute. In respect of this aspect, it was submitted that even though no evidence whatsoever was led in respect of the particulars of fraud, deceit or misrepresentation by the respondents, the trial judge found them proved.
At pages 221 of the record of appeal, the trial judge, at page 15 of her judgment, stated thus:
“The proof of fraud and deceit against the defendant’s father in the original agreement is imbedded in the evidence and conduct of the defendant and her late father, and the inconsistencies in the evidence of her witnesses in relation to her pleaded facts.”
At page 10 of her judgment, appearing at page 221p of the record, the trial judge held that fraud was proved because the cross-examination of Dw1, showed that not all aspects of the document were interpreted in the Ga language. For the allegations of unconscionability of the agreement, the trial judge, at the same page 221p, held that same was proved by the evidence that when the Klottey family in their defence to Suit No. L/92/98 pleaded in their defence that they were ignorant of the contents of the document, the appellant’s father did not pursue the case because he knew he did not satisfy the provisions of section 4 of the Illiterates Protection Act and that the appellant herself, without pursuing that suit, went on to sue an insignificant member of family against whom she obtained judgment.
Are the above findings supported by the evidence led at the trial? A critical analysis of the evidence led at the trial will show that these findings of fact by the trial judge are not borne out by the evidence. Apart from the fact that there is nothing unconscionable about the lease agreement, exhibit 3, on the face of it, same was witnessed by the Clottey family of Achiaman as well as members of the larger family, including J.D. Amoo, who was a literate. There is also nothing to show that any undue influenced was used to get the family members to sign it. The larger family was informed and they sent J.D. Amoo to represent them and, if as they alleged, they found the document to be fraudulent or unconscionable, what steps did they take to repudiate it?
From the evidence, it was only in 1989 that they alleged they wrote inviting the original lessee who failed to respond. This was however denied by the appellant in paragraph 9 of her defence at page 94 of the record. The evidence also shows that the respondents did not do anything after the alleged failure to respond to their letter of 22nd February, 1989 until they wrote exhibit C, same as H, of 9th December, 1997, purporting to re-enter the land and upon which they went on to grant sand winning rights to Amardaybi and Co.
Contractors, per exhibit B dated 12th January, 1998.
It is true that Suit No. L92/98 was not pursued either by the original lessee or the appellant after she had applied and was substituted as plaintiff in the action. There is however nothing to show that this was because they realised that the provisions of the Illiterates Protection Act have not been satisfied with regard to the agreement. It must also be pointed out that the defendants therein also filed a counterclaim which they also failed to pursue. The fact that the plaintiff therein did not pursue his action was no excuse for them to abandon their counterclaim, which in law is an independent action.
As indicated earlier, the respondents filed separate statements of claim since after the joinder and amendment of the writ of summons, the statement of claim filed was said to be for the 2nd respondent.
From the statement of claim of the 1st respondent, the fact of there been a lease is admitted. See paragraphs 4, 5, 6 and 7 of his statement of claim at pages 3 and 4 of the record. It is also pertinent to point out that even though the 2nd respondent, in his statement of claim at pages 89 to 92 of the record, alleged in paragraphs 7, 8 and 9 that those who purportedly leased the land had no authority to do so, and that it was also without the knowledge and consent of the principal members of his family, he went on in paragraph 11 to aver that, upon default in the payment of ground rent, the family caused its lawyers to write to inform the lessee that the family had re-entered the land.
This clearly is an admission that a lease indeed existed. As also indicated earlier, the respondents, and for that matter the 2nd respondent’s family, did nothing when they alleged that their caretaker family members of the land had no authority to lease same out without reference to them. This is even not correct as the larger family was well aware of the transaction and sent J.D. Amoo to represent them and he and other members of the larger family signed or appended their marks to the document, exhibit 3.
Pleadings are the nucleus around which a party’s case revolves and the evidence in a case can only be considered in the light of the pleadings. Baffoe Bonnie JSC., in Amponsah v. Nyamaah  25 M.L.R.G. 16 at 31, endorsed the following view of Crabbe JSC in Hammond v. Odai & Another [1982-83] G.L.R. 1235 when he said:
“Pleadings are the nucleus around which the case, the whole case revolves. Their very nature and character thus demonstrate their importance in actions for the benefit of the court as well as for the parties. A trial judge can only consider the evidence of the parties in the light of their pleadings. The pleadings form the basis of the respective case of each of the contestants. The pleadings bind and circumscribe the parties and place fetters on the evidence that they would lead. Amendment is the course to free them from such fetters. The pleadings must manifest the true and substantive merits of the case.”
Apart from admitting the existence of the lease in their pleadings, it is also clear from the issues set out in the application for directions filed on 22nd July, 2014 at page 105 of the record of appeal that the existence of a lease is presumed. A critical look at the evidence of the 2nd respondent, at page 110 and 111, and his cross-examination at pages 116 and 117, will show that not only was the larger farmer aware of the transaction, but were fully involved as they sent J.D. Amoo to represent them, and he, and two other members signed exhibit 3. The findings of the trial judge that his signature was transported onto it as a décor is therefore not borne out by the evidence as stated at page 15 of the judgment appearing at page 221O of the record. It is also necessary to point out that the respondent’s family, upon the mere issue of exhibit C, same as exhibit H, could not re-enter the land, the subject-matter of the lease in exhibit 3. Apart from exhibit C or H being an admission of the existence of the least, as stated earlier, it must be noted that the right of re-entry is a matter of law and therefore not automatic. Exhibit C or H, give the reasons for re-entry as non-payment of ground rent. Under clause 2(1) of exhibit 3, payment of rent is one of the covenants in the lease, and by clause 4(b), it is provided that the lessor shall inform the lessee in writing, giving him 3 months to pay rent in arrears in case of default before a right of re-entry can be enjoyed. It is also indicated in clause 4(b) that 20 years rent has been paid. A right of re-entry can therefore only be enjoyed after compliance with the provisions of clause 4(b) of exhibit 3.
Section 29 of the Conveyancing Act, 1973 (Act 175), headed “Restriction on re-entry and forfeiture”, provides as follows in sub-section (1):
“(1) A right of re-entry or forfeiture under a provision in a lease for a breach of a covenant or an agreement in the lease is not enforceable, by action or otherwise, until;
(a) the lessor serves on the lessee a notice,
(i) specifying the particular breach complained of,
(ii) requiring the lessee to remedy the breach, if the breach is capable of remedy,
(iii) requiring the lessee to make reasonable compensation in money for the breach, except where the breach consists of a non-payment of rent.
(b) the lessee has knowledge of the fact that the notice has been served, and
(c) the lessee fails, within a reasonable time after the service of the notice under paragraph (a), to remedy the breach, if it is capable of remedy and except where the breach consists of a non-payment of rent to make reasonable compensation in money, to the satisfaction of the lessor, for the breach.”
In Boyefio v. NTHC [1997-98] 1 G.L.R. 768 at 770 in holding (3) in the headnote, the Supreme Court held that where an enactment had prescribed a special procedure by which something was to be done, it was that procedure alone that was to be followed. The respondents’ family, without complying with the provisions of section 29(1) of the Conveyancing Act, 1973 (Act 175), could not purport to re-enter the land for alleged breach to pay ground rent. In GPHA v. Continental Terminal Ltd. [2013-2014] 2 S.C.G.L.R. 1625 at holding (1) in the headnote at page 1627 it was even held that from the wording of section 29(1) of Act 175 that mere notice to the lessee for breach would not be sufficient to bring about the statutory right of forfeiture.
In arguing further the ground of appeal about the judgment being against the weight of evidence, learned counsel for the appellant was concerned with the finding by the trial judge that no rent has been paid or has been paid to the accredited persons. The trial judge, at page 11 of her judgment, appearing at page 221K of the record, referred to the letter in response to the letter for re-entry, which included a cheque for Gh¢7,500 as rent arrears, as the basis for her finding that rent had not been paid. She did not also believe the evidence of the appellant’s witnesses about the payment because Dw1, a recipient of such payment, was said to have been swayed by the kindness of the appellant, and, her second witness, was said to have been destooled as chief of Achiaman.
The evidence of Dw1, Joseph Klottey, at pages 164 to 169, shows that he personally witnessed the transaction and his account, particularly at page 168, shows that some others were paid the rent before it came to his turn to receive it. Even though in cross-examination counsel tried to show that he was not a member of the Klottey family he acquitted himself well. See page 169 of the record. With regard to Dw2, Nii Achia Apoma II, suffice it to say that the fact that he was destooled should not affect his credibility.
The evidence led at the trial clearly shows that rent had been paid contrary to what the trial judge held. Apart from an indication in clause 4(b) of exhibit 3 that 20 years rent had been paid, and as such the lessee could not have been in arrears of rent as at 9th December, 1997, when exhibit C or H was written, the appellant also tendered in evidence exhibit 10 series showing subsequent payment of rent. As rightly submitted on behalf of the appellant, the trial judge did not demonstrate in any satisfactory way why, in face of such documentary evidence about payment of ground rent, she held that rent had not been paid in the light of authorities like Ladzekpo v. Atadzi  G.L.R. 218 C.A.
The trial judge also relied on exhibit 1, at page 256 of the record, to hold that rent had not been paid as non- payment has been admitted on it. This letter, written on 13th January, 1998, by Messrs Amartefio and Co., was in response to two letters written to the appellant’s predecessor and his son, Gideon Boi-Tono Adjei. It was therefore written on behalf of two persons. From exhibit D, appearing at page 228 of the record of appeal on processes filed in respect of Suit No. L92/98, particularly paragraphs 1 and 2 of the statement of claim at page 230, it is clear that the two plaintiffs therein acquired different parcels of land of varying sizes. As the present action relates to one of the lessees mentioned in exhibit 1, and as exhibit 3, the lease pertaining to this present action shows that 20 years rent had been paid, with exhibit 10 series showing subsequent payments, any arrears of rent and in respect of which the cheque for Gh¢7,500.00 as arrears of rent was attached as at the date of writing could not have been in respect of the lease in contention in this matter.
As pointed earlier, the issues the trial judge found to have been adopted by the parties for determination did not include issues 5 and 6, set out by the respondents in their application for direction after the close of pleadings following the joinder, as well as additional issue 2 filed on behalf of the appellant at page 62 of the record of appeal. Whilst issues 5 and 6 on behalf of the respondents relate to whether or not the Nii Ahuma Kojo family of James Town took part in the purported lease; and, whether or not the land belonging to the Nii Kojo Ahuma family of James Town was affected by purported demise (sic) by the caretakers in the village, the additional issue left out is whether or not the site plan of the defendant represents the land in dispute.
In dealing with the ground of appeal about the judgment being against the weight of the evidence, especially the finding by the trial judge that J.D. Amoo’s signature got onto the document i.e. exhibit 3, by décor, I held that not only did the evidence show that the respondents’ larger family was fully aware of the transaction, but also that they took an active part by sending J.D. Amoo to represent them. As also indicated earlier, if their caretakers at the village, without their knowledge and consent gave out the land, what effort did they take to reverse it? They did not do anything until 1987 when they said they wrote inviting the original lessee whom they alleged failed to respond. In any case, as indicated, their pleadings, as well as the letter of 1987 by which they purported to re-enter, all admit the existence of a lease.
Apart from the fact that the respondents’ family granted the disputed land to the appellant’s father per exhibit 3, exhibit 6, executed in 1999, and appearing at page 280 of the record of appeal, is a further confirmation of the lease. Again, even though the respondents went on to register their land, upon a statutory declaration by J.D. Amoo, in 2005, the evidence, especially the cross-examination of the 2nd respondent at page 118 of the record, shows that their land, as registered, did not include the land granted to the appellant’s father as same was excluded, as per the portion shaded blue, in the plan attached to exhibit A.
From an examination of the evidence led at the trial, and considering the submissions in this appeal, especially those on behalf of the appellant, the court is satisfied that the judgment of the trial judge cannot indeed be supported by the evidence. Accordingly, the appeal succeeds and the judgment of the High Court dated 26th March, 2015 is hereby set aside.
Nii Ayitey Animeley, 1st plaintiff commenced this action in the High Court claiming to be the head of family of Anyema Clottey family asking for reliefs I will reproduce presently. We wish it noted that the name Clottey is spelt with “C” and sometimes “K”. He was later joined by the 2nd plaintiff who claimed to be the head of Owula George family. The pleadings and the evidence of the parties disclose the reasons for his joinder as a co-plaintiff and what he sought to add to the trial. But what can be said with certainty is that his joinder disclosed that the 1st plaintiff was in fact subservient to him in the customary structure of authority so far as the land in dispute is concerned. They are all from the same family and claiming the disputed land for a wider Nii Ahuma Kojo family of James Town. It is worth noting also that while the 1st plaintiff claimed by his writ of summons land size of 213.22 acres, the
2nd plaintiff claimed per his Land Title Certificate land size 184.9 acres. Another significant issue introduced into the trial by the 2nd defendant was an allegation of fraud against the defendant’s father, Theodore Adjei, in his acquisition of the 1979 lease from the plaintiffs’ family.
The defendant is in this case, Laura Korkoi Gyampo, is challenging the claim of the plaintiffs because she inherited the disputed land from the father.
For a clearer understanding of the opinion we are about to deliver we will narrate the salient parts of the pleadings of each party.
The 1st plaintiff claimed the headship of the Anyima Klottey family of Achiaman and by virtue of which he is claiming ownership of land 213.22 acres in Achiaman. It is his case that the defendant’s father took a lease from the Klottey family of 54.51 acres land but this was varied subsequently to 35 acres. The lease to the father was in 1979, tendered as exhibit 3. That after defendant had taken over from the father she paid rent to the family for some time and stopped. Instead of using the land for agricultural purposes as stipulated in the lease, the defendant had sold portions of the land without resort to the family and had gone further to demolish buildings of family members and grantees of the family. All attempts to stop her had failed hence this suit.
From the pleadings the wrong for which he sued the defendant was none payment of rent, using the land other than for the agricultural purposes and demolishing structures of the family and third party grantees of the family on the land. The claims he made against the defendant were for:
1. Declaration of title to all piece or parcel of land situate at Achiaman near Amasaman and containing an approximate area of 213.22 acres and more particularly described in the schedule hereunder
2. Recovery of possession of the said land
3. General Damages
4. Recovery of arrears of rent in respect of the lease dated the 31st August 1979 and granted to the defendant’s late father
5. An order directed at the defendant to discontinue with the demolition of houses on the disputed land
6. An order directed at the defendant to seek the consent of the plaintiff family before making grants in respect of the lease
7. Perpetual injunction restraining the defendant herself, her servants, assigns and those deriving title from the defendant from dealing with plaintiff’s land.
Looking at these reliefs the question we ask is how relief 6 can coexist with the other reliefs. For an order directed at the defendant to seek the consent of the plaintiffs before making any grants, stated in relief 6, presupposes the defendant has the right to alienate the disputed land, albeit with the consent of the plaintiffs’ family.
The first issue the defendant raised in her defence to the 1st plaintiff’s statement of claim was the capacity of the plaintiff to sue. It was her case that the head of family of the Klottey family is a Joseph Klottey and not the 1st plaintiff. She averred that after the death of her father she eventually got a vesting assent in 2011 which conferred the property on her. She has since registered it and got a Land Title Certificate confirming her ownership of same. She maintained that her land is 45.27 acres and has been paying the rent to the appropriate person in the family. As to the allegation that she has failed to use the land for the purpose for which the lease was granted she denied and explained that she did commence the farming but theft by the people in the village made the farming difficult. Further frustration to the use of the land for the agricultural purpose was when one Nii John Ashong claiming to be the head of family of the Klottey’s and one Joseph Klottey started winning sand on the land which created craters with standing pools anytime it rained. She had to sue Joseph Klottey at the High Court where she had judgment against him. Subsequent to this judgment she by a writ of possession got an order to demolish which formed the basis of the demolishing she had carried out on the land. She counterclaimed for 45.27 acres as described in her statement of defence. Refer to page 8 and 93 of the record of appeal.
Three issues appear for resolution from the pleadings of these two parties. They are whether the defendant or her father has or had breached the terms of the 1979 lease granted the father either in the use of the land or none payment of yearly rent. Paramount also is the determination whether the plaintiff is the head of the Klottey family of Achiaman.
So stood the case of the 1st plaintiff and defendant when the 2nd plaintiff applied to join the suit. It is worth quoting some relevant paragraphs of 2nd defendant’s depositions in the affidavit that convinced the court to join him to the suit. Page 77 of the appeal records.
“2. That I am the acting head of the OWURA GEORGE FAMILY OF NII AHUMA KOJO 1 FAMILY
That the attention of the family has been drawn to an action pending before this honourable court between Nii Ayitey Animley and Laura Korkoi Gyampo which touches and concerns the family land situate lying and being at Achiaman, Accra.
That the land in dispute belongs to the said family with a Land Title Certificate registered in the name of the family as far back as 23rd August 2005 with certificate no. GA21549.
That the principal members of the family travelled out of the jurisdiction only to return to find the land being the subject matter of litigation
That the plaintiff in this suit was installed as the Head of the smaller section of the Owura George Family located at Achiaman and instituted this action in his capacity as the head of that smaller section”.
By these depositions the 2nd defendant is contending that the land in dispute is for the Owula George
Family of the Ahuma Kojo family located in James Town and that the 1st plaintiff is the head of a smaller section of the Owura George family and did institute the action in that capacity.
After his joinder he presented the case of his family. It is that they own land of 184.95 acres which was originally acquired by the ancestor Owula George from King Tackie Tawiah. Upon the death of Owula George the land became vested in the Nii Ahuma Kudjo family. Some members of the Nii Ahuma Kojo family decided to settle at Achiaman whilst the head of family and elders stayed in
James Town. It is the case of the 2nd plaintiff that it was this group that settled in Achiaman, who leased out the land to the defendant’s father without the consent of the head of family and elders in James Town. When the family in James Town got to know about this lease they caused their lawyer to write to the lessee and subsequently sent for him for re- negotiation but he refused the call of the family. In 1997 they caused their lawyer to write to the defendant’s father( Theodore Adjei) that they had re-entered the land and proceeded to grant sand winning rights to a Messrs Amardybi. The reaction of the defendant’s father, was to issue a writ suit No L92/98 against the family but he abandoned this writ. The family members he sued were Klottey Korley, J.B.Amoo and Nii Acquah.
The 2nd plaintiff’s pleadings continued that by a statutory declaration of the 9th of May 2001 the then head of family, J.B. Amoo, got the land registered in the name of the family and followed this up getting a Land Title Certificate on the 3rd August 2005. Thereafter they sent notices to the public of the family’s ownership of the land.
Reacting to the defendant’s case that she sued and had judgment against some members of the plaintiffs, family the, 2nd plaintiff contended that that judgment was obtained by fraud in so far as the defendant did not bring to the attention of the court the earlier suit No. L.92/98 instituted by the father. Defendant’s suit was in March 2010. Based on these pleadings 2nd plaintiff sought for a declaration of title to the 184.95 acres as disclosed in his Land Certificate. He emphasized that the Clottey family forms part of the bigger Ahuma Kojo family of James Town. In respect of the 1979 lease the plaintiff rubbished it as a product of fraud in that the grantors in that lease did not have the capacity to grant any lease to the defendant’s father and were illiterates who did not understand the import of the lease because it was not accurately interpreted to the said family members.
After trial the plaintiffs had judgement and the counterclaim of the defendant was dismissed. The vanquished is before this court for a second opinion urging on us to set aside the trial judgment and accept her counterclaim as proved. Her grounds of appeal I will quote as follows:
“1. The judgment is against the weight of evidence.
2. The trial judge erred in rejecting the jurat on exhibit 3 in preference to oral evidence without cogent reasons
3. In the exercise of her discretion to rely extensively on a document which was not tendered the trial judge failed to exercise her discretion judiciously which has resulted in a miscarriage of justice and or want of jurisdiction. And thus appellant is seeking the relief to have the whole judgment set aside and judgment entered in her favour on her counterclaim”.
We would no accord any elegance to the drafting of grounds 3 for obvious reasons but that should not defeat our decision to bundle all the grounds of appeal together and consider them under the first ground of appeal i.e. the omnibus grounds the “judgment is against the weight of evidence”. What duty is cast on an appellate court when such allegation is made by an appellant against a trial judgment has been stated consistently by our case law authorities it suffices to say concisely that an appellate court would be under obligation to go through the entire records of appeal, taking a second look at the evidence and analyse the whole record of appeal before it and come to its own conclusion whether on the preponderance of probabilities the judgment under consideration can be supported having regard to the evidence. We refer to cases like Tuakwa vrs Bossom(2001-2002)SCGLR 61, Djin vrs Musa Baako(2007-2008) SCGLR 686.
There is this other salutary and firmly established principle as regards findings made by trial court. Such findings, it is the general rule, should prevail in an appeal setting and an appellate court should be disposed to upholding such findings. However, if such findings on examination of the records are not supported by the evidence on records an appellate court is entitled to depart from such findings. We may refer to the cases of In re Okine(2003-2004) SCGLR 582. Therefore, if after comprehensive review of the appeal records an appellate court comes to the conclusion that the trial judge failed to identify and give appropriate weight to critical evidence led before her or wrongly applied the facts to the law, the appellate court has the legal duty to reverse the findings and give judgment consistent with evidence on record. Guided by these principles we proceed to examine the grounds of appeal raised by the appellant.
The first we wish to consider is the issue whether the 1st plaintiff is the head of family of the Anyema Klotey family. Decision on this will be based on the balance of probabilities having regard to the evidence led by the parties, the plaintiff having the initial duty to establish his assertion that he is the head of family. This duty of the plaintiff to prove this assertion is a statutory duty imposed by sections 11(4) and 12 of the Evidence Act (NRCD 323) as explained by cases like Adwubeng vrs Domfeh (1996-97) SCGLR660. Zabrama Vrs Segbedzi (1991)2GLR221 and Okudzeto Ablakwa (No.2) vrs Attorney General & Another(2012)SCGLR845. The trial judge was very clear in her findings that there was more convincing evidence the 1st plaintiff is the head of this family and concluded as such. In coming to this conclusion she relied also on swearing in ceremony in newspaper clippings. It is the submission of counsel for the defendant that these clippings were not tendered in evidence the trial judge had no jurisdiction relying on them in making her findings on the headship of the family. We think counsel has valid point here. These paper clippings were indeed not tendered in evidence and cannot therefore be a source of evidence for use by the trial judge. Such use will amount to a breach of the natural justice rule of failing to give a party a hearing on an issue, the issue in this case being the newspaper clippings which the defendant never had opportunity to cross examine on. But we do not think this omission by the trial judge caused the defendant any miscarriage of justice. For there were other pieces of evidence on record which gives support to the findings of the trial judge that the 1st plaintiff is the head of the Klottey family of Achiaman. From the case put up by the defendant it is not merely that the 1st plaintiff is not the head of family but she mentions somebody else, Joseph Klotey as the head. In such a situation evidence to be assessed should relate to the two. Of the two who on the preponderance of the probabilities is the head of family? The trial judge found for the 1st plaintiff. We think there is sufficient evidence to back her conclusion we have no reason to question her conclusion. The 1st plaintiff told the court that Nuumo Attaa was the head of family till his demise in 2004. Between 2004 and 2010 C.K. Gyamfi acted until he plaintiff was appointed in 2010. That he is the head of family was confirmed by the 2nd plaintiff who is the head of the Ahuma Kojo family of James Town, the family under which both the Anyima Klottey family of Achiaman and the Owula George belong. As found by the trial judge there was reason not to accept the evidence of Joseph Klottey (DW1) as the head of family of the Klottey family of Achiaman. Joseph Klottey’s corroborator, Nii Achia Ampoma 11, (DW2) who styled himself as the chief of Achiaman was untruthful to the court in respect of his claim to the chieftancy position of Achiaman. When there was clear documentary evidence that he has been destooled, he insisted he was the chief. Such discredited witness’s evidence corroborating a party definitely would be viewed with suspicion. The trial judge therefore had reason to reject his evidence when he testified that Joseph Klotey (DW1) was the head of family of the Clottey family and also the Otsiame of Achiaman. Joseph Clottey (DW1) who was contesting the head of familyship of the Clotteys with the 1st plaintiff testified for the defendant. When confronted on his family lineage he could not tell his grandfather’s name creating the suspicion he was really not a member of the Clottey family, as contended by the plaintiffs. In any case as testified to by the 1st plaintiff, the land was being allegedly encroached upon by the defendant and he reported to C.K. Gyamfi who was the then acting head of the Klottey. C.K. Gyamfi told him he could not walk and therefore he 1st plaintiff should go to court in defence of the family land. I think this is clear evidence of the authority of the 1st plaintiff to act in protection of the family’s land. And he had to act until the 2nd plaintiff who was then out of the jurisdiction returned to the country to join this suit against the defendant. Of the two the trial judge was right in making a finding in favour of the 1st plaintiff on the probabilities of the evidence led before her. This ground of appeal questioning the trial judge’s findings that the 1st plaintiff had the capacity to sue as the head of family is dismissed as without merit.
A lot has been said about the lease that was purportedly granted to the defendant’s father, tendered as exhibit 3. It was this lease that the 2nd plaintiff sought to question as fraudulently procured by defendant’s father, Theodore Adjei, from the villagers of Achiaman. The plaintiffs describe these people who granted the lease as mere caretakers of the Ahuma Kojo family. A closer reading of the record of appeal will disclose the weakness in this allegation of fraud. The plaintiffs contend that the lease was not signed by persons with authority to execute such document and that those who executed the document were illiterates who were misled as to the content and import of the lease.
We will first of all consider the contention of the plaintiffs that the lease document, exhibit 3, was not executed by persons qualified to make a grant of the family’s land. There is no denying the fact that those who signed the disputed lease document were members of the Klottey family, even if not competent members to execute land documents on behalf of the family. We are not told who from the family at the time were the competent persons to lease out the family land to the defendant’s father. The grantors mentioned in the lease are described by the plaintiffs as caretakers. If they were mere caretakers what was the reaction of the family in James Town when they got to know of the lease? Did they abrogate the lease or endorsed it? The record of appeal has the answer which we would provide shortly.
Mention is made of the lease having been procured through fraud. On allegations of fraud the statutory position as explained by the case authorities is that proof of such allegation is by evidence beyond reasonable doubt. Sections 13(1) of the Evidence Act, NRCD 323 is the relevant statutory authority and explained in cases like Sasu Bamfo vrs Sintim (2012) 1 SCGLR 137 and Fenuku vrs John Teye(2001-2002)SCGLR 985. Other authorities worth reading are Brown vrs Quarshigah(2003-2004)SCGLR 930, Dzotepe vrs Hahormene 111(1984-86)1 GLR 294, Rep vrs High Court Ex parte Aryeetey(2003-2004)SCGLR 398, Frimpong vrs Nyarko(1998-99)SCGLR 734. Also for a clearer and more focused litigation of the allegation of fraud the Rules of Court. Order 11 rule 12 also demand that the accuser should give particulars of the fraud. With such particulars it is hoped the accused will have all that he needs in defending himself of this criminal charge made within a civil trial. Of course fraud is not an allegation to be made lightly and should be a matter of concern not only to the court but the accused. We are of the view therefore that the first duty of the complainant is to be very clear in his particulars of fraud provided, failing which an appellate court should be entitled to dismiss the allegation based on the particulars alone where the particulars disclose no fraud. In this case the plaintiffs’ have particularized the fraud they are alleging as follows:
“1. That defendant’s father intimated to the grantors and signatories of the said lease that they were clothed with power to demise the land to him
2. That the defendant’s father misrepresented to the three signatories, namely Klottey Attuquaye, Aadey Anyema and Klortey Korley that he was going to use the land for agricultural purposes, knowing very well that they could not read and write what was written in the document
3. The defendant’s father intimated to the three signatories that if they informed the actual owners of the land in Accra they will lose their occupation of the land”.
Let us examine these particulars more closely. In respect of the first particulars, the allegation is to the effect that the defendant’s father knew who the right grantors were but deceived the grantors of the lease that they had the power to make the grant to him. And the third allegation is to the effect that they should keep the lease secret from the real grantors residing in Accra else they will lose their occupation of the land. The second particulars we find a little baffling. The only sense we could make of this particulars is that the defendant’s father took advantage of the illiteracy of the grantors and misrepresented to them that he wanted the land for agricultural purposes. We formed the opinion that these were particulars of fraud that qualified to be dismissed on first reading but having restrained ourselves from so doing we found clear from the record of appeal that the plaintiffs woefully failed in establishing any of these particulars. They led no evidence at to show that the defendant’s father knew who the real land owners of the land were but went ahead to fraudulently take the lease from these persons who did not understand the contents of the document. On the second allegation of fraud the understanding of all the parties to the lease was that the land was going to be used for agricultural purposes. It is unclear therefore why the 3rd particulars of fraud. What the plaintiffs appeared to have led evidence on which, from our point of view misled the trial court to make a finding of fraud, was that the lease agreement was not properly interpreted to the grantors and therefore did not understand it before they executed it. We are compelled to consider this allegation of fraud on the authorities like Autoparts Ltd vrs Essuman(2013-2014)1SCGLR385 which directs that where unpleaded evidence is led in a trial without objection the court cannot close its eyes to such evidence but should consider it in the overall assessment of the evidence. Was there evidence that the grantors did not understand the contents of the lease exhibit 3 when they executed it? The reasons the trial judge upheld the allegation of fraud against defendant’s father can be stated as follows( refer to page 221p)
“1.That the DW1 stated in cross examination that not everything in the document was explained to the grantors in Ga language
2. That the plaintiffs led evidence that the agreement was unconscionable
3. That when the defendant’s father sued the Klottey family and they filed a defence the father knowing that he had a bad case abandoned the suit.
4. And the defendant too did not mention this suit of the court when he sued certain members of the family and had judgment.
5. That the plaintiffs led evidence on the pittance to be paid for the lease and its duration of 99 years to be renewed for another 99 years”.
With respect to the trial judge we do not see how any of these could amount to fraud. If, as in paragraph 1, it is not everything in the agreement that was read and explained to the grantors what were those and how did that impact on the understanding of the grantors as to result in deceit or fraud? We do not see how any of the other reasons amount to fraud. The trial judge accepted that DW1 was the only witness who appeared was present at the signing the lease and quoted certain parts of his cross examination. This witness testified in cross examination that he did not hear Owula George’s name mentioned during the interpretation of the lease to the grantors. But it is a fact that the name Owula George is stated in the lease as the original owner of the land. How come he did not hear it mentioned? He answered also that he did not hear that the 99 years lease was to be renewed for another 99 years. This is also in the lease. How come the witness did not hear this also? The trial judge appeared to have relied on these parts of DW1’s evidence to conclude that there was no interpretation to the grantors. She reasoned that if there was proper interpretation the witness would have heard the name Owula George and the 99 years lease and its renewal for 99 years. With all respect to the trial judge, why should DW1’s inability to hear these mentioned during the interpretation be a confirmation that the lease was not interpreted to the grantors as contended by the plaintiffs? There was the need for the trial judge to have examined the evidence of fraud in totality and more critically than she did. Prominent amongst those who executed the document was J.D. Amoo who from the evidence was a witness to the transaction. The plaintiffs contended that Amoo was an illiterate and did not also understand the lease document. We will reject this contention of Amoo being an illiterate. Not only was Amoo always signing his signature but he grew to eventually become the Head who got the family land registered and got a Land Title over the family lands. All the documentation made by Amoo towards the registration were all signed by Amoo. A closer look at his signatures does not show they are signatures being produced by an illiterate managing to sign his signature. Refer to page 236, 272 and 273. In all he did not only sign but also wrote his name. We have no reason to find that Amoo was an illiterate. In fact he was a very prominent and a pivot in the family. According to the evidence of the plaintiffs, after the grant of the lease to defendant’s father at Achiaman, one of the members of family in Achiaman came to inform the family in James Town of the lease. Amoo was sent from James Town to find out what really happened. It appears from the evidence of the plaintiffs that Amoo did not just go to find out what had happened but went to witness this lease. It is worth noting that the one who came to report to the family about the lease, Klottey Ataa, eventually became the head of the Klottey family. As earlier mentioned this same Amoo became the head of family and spearheaded the registration of the family’s land. Examining this lease exhibit3 properly it would be found that two other persons who witnessed this lease cannot be described as illiterates. They also signed and wrote their names. There is a Reverend Akwei a minister of the Presbyterian Church, S.B. Lartey and another whose name is not legible. Is it being contended that all these teamed up with the defendant’s father to deceive the grantors? The records of appeal properly scrutinized, does not disclose evidence that the grantors were in anyway deceived into signing the lease exhibit 3. We will set aside the trial High Judge’s findings of fraud and deceit against the father of the defendant.
Still on this lease and its validity. After J.B Amoo was sent to the village to find out about the lease and he found himself witnessing the very lease he was sent to investigate, did the Klottey of Ahuma Kojo family reject this lease when it came to their knowledge? They did not. We provide our reasons from the records.
We begin with correspondence between lawyers who were engaged in the course of the existence of the lease. On the 9th of November 1997 we have a letter, exhibit C, written by lawyer Amarteifio for the Ahuma Kojo family addressed to defendant’s father, Mr. Theodore E.N. Adjei. The letter is headed Re Entry: Parcel of Land at Achiaman. The contents provide
“We act for the Nii Ahumah Kojo family of Accra owners of the piece or parcel of land at Achiaman.
We are instructed to inform you that our clients are exercising their right of entry.
Our instructions are to demand and we hereby demand that you vacate our clients land forthwith…”
By Exhibit 1 counsel for the defendant’s father, Lawyer Abankwa, responded to exhibit C, to the effect that there was an agreement between the Ahuma Kojo family and the defendant’s father, Theodore Adjei. And that even if there was default in the payment of rent there are legal hurdles to clear for any right of entry to be exercised. This letter is dated 13th January 1998. We find the lawyers reference to the term “right of entry” implying the existence of a valid lease. Lawyers surely know the meaning of right of entry as connoting the existence of a valid lease. It appears to us that even though initially the plaintiffs’ family may have found this lease unacceptable they ratified it and it has been in existence since 1979, and that is why the lawyers made use of the term “right of entry” in their communications. It is worth asking also that since the grant of the lease in 1979 till somewhere 1998 when the Owula Georgeor Ahuma Kojo family got their lawyer to write the defendant’s father (a period of about 18years) what was the status of the lease? Why did the family not challenge the lease all this while?
We have clearer evidence on record that the plaintiffs’ family accepted and ratified this lease which plaintiffs are today claiming was procured fraudulently. The 2nd plaintiff in his cross examination, which can be found at page 116 of the record of proceedings made admission of this fact. We reproduce this part of the cross examination.
“Q: At the time the transaction between the defendant’s father concerning the land in dispute what was the status of J. D. Amoo in the family?
A. He was amongst the elders of the family
Q. And went to witness this transaction by signing his signature is that not so?
A. He was asked to do so
Q. By whom
A. By the entire family
Q. Now the transaction was witnessed by other members of the family. Is that not so?
Clear from this evidence is the fact that the family accepted this lease, endorsed it by asking Amoo to witness this lease. It is not surprising the lawyers found there was in existence a lease and made reference to the term right of entry in their correspondence. We are convinced that the contention of the plaintiffs that the lease was procured through fraud cannot be sustained, neither can the trial judge’s supportive conclusion of fraud. We have mentioned earlier in this delivery that where the trial judge failed to assess the evidence placed before her properly an appellate court has the right to set aside such findings on review of the whole record of appeal and come to its own conclusion. We are convinced this is a case we should set aside the trial judge’s findings of fraud and deceit it made against the defendant’s father, Mr. Theodore Adjei and uphold the lease as valid and operative.
Was the defendant in arrears of rent payment? This is another allegation of the plaintiffs. 1st plaintiff pleaded in paragraph 7 of his statement of claim that the defendant paid rent to the family for some period and stopped. What rent was paid and for what period leaving which years? 1st plaintiff provided no cogent evidence on this issue. In defendant’s evidence in chief she testified that she had paid the rent to Joseph Klottey who she considered the head of family. In fact Joseph Klotey confirmed in his evidence to the court that he is the head of the Klotey family and that the defendant had been paying rent to him. His claim to be the head of family was however rejected by the trial judge. There is evidence also that the defendant sued another Klottey who claimed to be the acting head of the Klottey family and had entered the land winning sand. There was further evidence from the defendant that she was chased away from the land by some members of the Klottey family when he took some investors to the land to view it. These are pieces of evidence indicative of a split family with several contestants for the headship of the family and several alienating the family’s land. Exhibit F, the family’s Public Notice confirms this fact of division in the family and sale by other persons in the family. It appears to us therefore that the defendant was paying rent to another contestant of the headship of the family cannot attract any serious criticism since she would have been compelled by the division in the family to make rent payment to the group that appeared to her to be in charge of the family. Defendant tendered receipts exhibit10, 10A and 10B as evidence of rent payments. Exhibit 10 evidences 14 million cedis payment for land fee. It was paid to a Clottey Korley described in the receipt as head of family of Achiaman and it was payment for the period 1st August 2004 to 30th April 2013. Exhibit 10A was for c800 rent dated 23rd November 2008. Then there is exhibit 10B for GC1000 dated July 12th 2014 and received by a Joseph Clottey. Its needs noting that by the lease the yearly rent was c300. There is no evidence there has been review of rents. Amidst these pleadings and the evidence of the parties and their witnesses it is difficult to conclude, as the trial judge did, that the defendant is owing any yearly rent unpaid which could be grounds for the plaintiffs’ family entering the disputed land claimed by the defendant. We therefore reject any contention of the plaintiff’ that the defendant was owing or is owing rent such as to give the plaintiffs and their family members any pretext to enter the land. Even if there is none payment of rent, the plaintiffs’ relief lay in instituting proceedings to reenter the land. If that is what they are seeking from this court, then we are of the view that from these preceding discussions, they don’t have any such grounds to re- enter. It is noteworthy that paragraph 4b of the lease provides for fulfilment of certain conditions precedent to any act of reentry.
Another ground the 1st plaintiff is seeking to recover possession from the defendant is alleged none use of the land for the purpose for which the lease was acquired-agricultural purpose. The trial judge concluded that since the defendant has admitted that the land has been degraded through sand wining and was suffering theft in the hands of the villagers, the purpose for the grant of the lease has failed the only solution was to abrogate the lease otherwise there will be no peace. She said:
“Once the intended purpose has failed there is never going to peace between the parties until the said agreement is abrogated. This is the only way the litigation between the parties would be brought to an end”.
We don’t think this conclusion is borne out of the records. Plaintiff’s case is that instead of the defendant using the land for agricultural purposes she has sold portions of the land without the consent of the family and had gone ahead to demolish structures belonging to family members and grantees of the family. Defendant’s response is that she started the agricultural project but some persons stole the farm produce and later one other person who claimed to be the head of family of the Klotteys started winning sand on the land resulting in craters which got fill up with water anytime it rained. She was compelled to go to court against this head of family and had judgment. She tendered the judgment as exhibit 2 (refer to page 257 of the appeal records). Her evidence in court can be summarized as follows. That the land was for agricultural purposes and was meant to bring job to the people in the village. She got machinery from Plant Pool to clear the land and started vegetable and cassava farming testing the fertility of the land. Everything in the farm was stolen. She travelled to the United States of America in search for investors who she brought to the land but they were chased of the land with cutlasses. She had to sue one Joseph Klottey who claimed to be the family head of the Klottey family and was winning sand all over the land. On the records there is no reason to challenge these pieces of evidence coming from the defendant. If therefore the same family who gave out the land to the defendant’s father for farming were the same people who made the agricultural project impossible of fulfilment by thwarting the quiet enjoyment of the defendant, how can the same family now be in court questioning why the defendant had not used the land for the agricultural purpose. Plaintiffs and their family members were in clear breach of paragraph 3b of the lease agreement failing to give quiet enjoyment to the defendant for her farming. It is worth noting that even the defendant’s father had problems with the plaintiff’s family he had to go to court against the family in 1998. (refer to exhibit D). None use of the land for the agricultural purpose as grounds to recover possession of the land from the defendant, we are of the view also fails. In any case that the land had been degraded does not negate its use for other agricultural purposes which includes piggery, poultry and others. The lease is very clear on this.
We can now take a closer look at this lease exhibit 3 and gauge its contents with actions taken by the plaintiffs’ family concerning this land. The lease was made on the 31st of August 1979. It mentions Owura George as the original allodial owner of the land and a grant of 99 years renewable for another 99 years was made to the defendant’s father. By this lease yearly rent was fixed at c300 and the first 20 years of c6000 was to be paid in advance on the day of execution. In effect by this lease agreement rent payment was to resume in the year 1999 ie if the c6000 was paid. The question to ask is was the advance rent of c6000 paid by defendant’s father as agreed in the lease? The lease document at page 273 of the record of appeal provides evidence of payment of this c6000. That being the case the plaintiffs’ family had nothing to do with this land till 1999 unless they can establish any breach of its terms by the defendant’s father during the period. But the evidence discloses several disturbing acts of the plaintiffs’ family during this period. First was by the plaintiff’s family lawyer Mr. Amarteifiowho wrote to the defendant’s father on the 9th of Decenmber1997 threatening reentry. There was response to Lawyer Amarteifio’s letter by Lawyer Abankwa on the 13th of January 1997 questioning the plaintiffs’ family’s right of entry but it appears this contending issue on reentry was ignored by Mr. J. B. Amoo who by exhibit B dated the 12th January 1998 Ammoo issued a letter granting Amardaybi the right to win sand on this land. This was the second unlawful interference of the land leased to the defendant’s father by the ubiquitous Amoo when rents had been paid for the period till 1999.
J.B. Amoo again by exhibit E made a statutory declaration in May 2001 deposing that the whole land was for the Nii Kojo Ahuma family of James Town. The defendant’s father by the records died in 2000. On what basis did Mr Amoo swear claiming ownership of this land for his family? Of course the family was entitled to a reversion but to have sworn this statutory declaration and proceeded on that basis to procure a Land Title Certificate was an intentional careless act to mislead the Land Registrar and in fact to overreach the defendant’s father and his successor. This act we view as fraudulent and has the effect of setting aside the Land Title Certificate if it has incorporated the defendant’s fathers land.
Demolishing of structures on the disputed land was backed by court order and as found by the trial court, the defendant cannot be faulted.
From the foregoing opinion the plaintiffs failed to prove their case and their suit should have been dismissed by the trial court. Consequently, we set aside the judgment of the trial court which gave judgment to the plaintiff.
The defendant counterclaimed for a 45.27 acres of land. On the authorities such counterclaim is an independent suit which she has to lead evidence on to prove to the satisfaction of the trial court. She carries the same burden of proof on her counterclaim just like the plaintiff carries on his writ. On the record of appeal the defendant has led evidence that sustained the father’s lease agreement with the plaintiffs’ family. What she failed to prove is title to land size 45.5 acres she is asking for in her counterclaim. Evidence on record is clear she approached the Land Title registry for publication of 36.929 acres and this was done. (refer to exhibit 8 at page 294) Subsequently she was given Land Title Certificate she tendered as exhibit 7 which had registered 36.929 acres in her favour. There is no evidence led by the defendant that could vary this title certificate with land acreage 36.929 to 45.5 she is seeking by her counterclaim. Accordingly, her counterclaim is granted for land size 36.929 acres and nothing more.
On a total review of the evidence on record the foregoing represents our conclusions on the ground of appeal “the judgment is against the weight of evidence”.