IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
KOFORIDUA - A.D 2018
OPANIN KWASI BOYE AND 2 OTHERS - (Defendants/Appellants)
OPANIN KWAME AMAKYE AND OFORI ASUMADU- (Plaintiffs/Respondents)
DATE: 16TH JANUARY, 2018
CIVIL APPEAL NO: H1/06/2017
JUDGES: K. A. ACQUAYE JA (PRESIDING), S. K. GYAN JA, M. M. AGYEMANG (MRS.) JA
LAWYERS: MR. ASURO NAPARI FOR DEFENDANTS / APPELLANTS
In this appeal against the judgment of the Circuit Court, Mpraeso, delivered on the 29th day of October 2015, the sole ground of appeal set out by the defendants/appellants is that the judgment is against the weight of the evidence on record.
These are the matters antecedent to this appeal.
The first and second plaintiffs, the head and member respectively of the Aduana (Gyase) family of Obomeng Kwahu (hereafter referred to alternately as the plaintiffs or the respondents), commenced suit against the first, second and third defendants head and members respectively of the Agona family of Obomeng Kwahu (hereafter referred to as the defendants or the appellants) claiming inter alia, a declaration of title to, recovery of possession of, and damages for trespass to all that piece or parcel of land situate, lying and being at Nkawkaw (Obemeng Section) described as Plot Number 102 Block D Section IB.
It was the plaintiffs’ case that the said parcel of land was the property of their family and that the defendants had resisted their attempt to put a permanent building structure thereat. The suit was strongly resisted by the defendants who also alleged that the said parcel of land was their family property.
It was common cause that in or about 1930, the ancestors of the two feuding families, the parties herein, two very close friends: Opanin Kwame Ansa-Ako of the Aduana (Gyase) family, and Opanin Kwasi Abankwa, acquired a plot of land measuring 80 feet by 80 feet from then Obomenghene Nana Yaw Mensah, jointly. They each built a mud dwelling house on opposite ends of the land. After the death of both men, Opanin Kwame Ansa-Ako was succeeded by Opanin Kofi Twerefuor who inherited the land with house thereon belonging to his predecessor. Opanin Kwadwo Amakye inherited the land with house thereon belonging to his predecessor Opanin Kwasi Abankwa.
The said successor of Opanin Kwame Ansa-Ako: Opanin Kofi Twerefuor demolished the mud house and erected a cement block (sand crete) building in its place. The mud house put up by Opanin Kwasi Abankwa however fell into ruins during a heavy rainstorm and was never rebuilt. Indeed, Opanin Kwasi Amakye was said to have removed the roofing sheets and other building materials of the collapsed building for his personal use.
After a while, one Opanin Kofi Dompreh, a mechanic went onto the land to operate his fitting workshop business. During the trial of the suit, the land was still occupied by the workers of the said gentleman now deceased. Both parties alleged that the said gentleman was placed on the land by them. The plaintiffs alleged that they rented the land to the gentleman and received rents from him. The defendants alleged that Dompreh was their licensee having been placed on the land free of charge by reason of familial relations and friendship between the then head of family Opanin Asante who even named his son after the said gentleman Dompreh.
While the defendants traced their root of title to the original purchase and occupation by their ancestor Opanin Kwasi Abankwa, the plaintiffs traced theirs to a sale by the successor Opanin Kwasi Amakye to the successor of Opanin Kwame Ansa-Ako: Opanin Kofi Twerefuor.
It was the plaintiff’s case that the land was sold by Opanin Kwadwo Amakye after the mud house constructed by his predecessor collapsed onto an occupant and killed her. The land was allegedly sold to Opanin Kofi Twerefuor for One Hundred Pounds. The said purchaser then placed people thereat, including his sister, who paid the ground rent on the property. As aforesaid, the plaintiffs claimed that their family remained in possession of the land through the occupation of Dompreh who lived on the land as their family’s tenant and paid rent to successive successors of Opanin Kofi Twerefuor, the last such person being one Auntie Dora of Tema who gave corroborative evidence of this alleged fact as PW2.
At the close of pleadings, the plaintiffs set out nine issues which were adopted by the court for determination. The learned trial judge however limited her consideration to two of the said issues and they were:
i. Whether or not Opanin Kwame Ansa-Aku and Opanin Abankwa jointly acquired the land in dispute and jointly exercised acts of ownership or Opanin Abankwa acquired a piece or parcel of land separate and distinct from the land herein in dispute;
ii. Whether or not Opanin Kwadwo Amakye the customary successor to Opanin Abankwa sold the land in dispute to the customary successor to Opanin Kwame Ansa-Aku and whether the family of Opanin Abankwa took any steps to redeem their land.
The learned trial judge in her judgment held that the plaintiffs had proved their title to the land in dispute and entered judgment for them. She held that the plaintiffs had proved their family’s purchase of it, their acts of ownership exercised over it (including the payment of property rates), their acts possession (including the collection by their family of rent from the occupant Dompreh), and furthermore, that not only had the defendants not proved acts of ownership (payment of property rates) or occupation, but had also failed to explain away their delay in exercising any rights of ownership over the land or challenging the plaintiff’s dealings with the land. Thus she held that even a possible demonstrated interest in the land by the family of the defendants was caught by estoppel by laches.
It is against the said judgment that the instant appeal has been brought on the sole ground that it is against the weight of the evidence led.
Is the judgment against the weight of the evidence led?
Rule 8(1) of the Court of Appeal Rules CI 19, provides that an appeal is by way of rehearing. It is settled law that a complaint by an appellant that a judgment (or ruling as the case may be) is against the weight of evidence, invites us, being in much the same position as the trial court regarding the evidence led: testimonies and documentary evidence, to evaluate the same, and come to our own conclusions in support of, or against the trial court’s findings, see: Tuakwa v Bosom [2001-2002] SCGLR 61.
In this enterprise, we will examine the evidence led to come to our own conclusions as to the findings of the learned trial judge, being mindful of the caveat that an appellate court should be slow to set aside the findings of a trial judge who has the duty of making primary findings of fact from the evidence led see: Ampomah v. Volta River Authority [1989-90] 2 GLR 28, except where the findings of a trial court are perverse or otherwise incapable of support from the evidence, see: Oppong Kofi and Anor. v. Fofie  GLR 174.
We will also have regard to both the facts, as well as legal arguments that “help advance or facilitate a determination of the factual matters, see: per Benin JSC in Eric Kwame Amoah v. Owusu Domena Civ. App. No. J4/13/2014”.
Having had regard to the evidence led, it is our view that the judgment of the court below is indeed against the weight of the evidence. We find that the learned trial judge erred in her evaluation of the evidence when she placed the burden of proof on the defendants, rather than on the plaintiffs who asserted that the land was theirs, and sought a declaration of title from the court.
It is trite learning that a plaintiff who seeks a declaration of title to land bears the burden of proving what he asserts on the preponderance of the probabilities, and he does this by adducing evidence of the root of title, mode of acquisition including purchase, and acts of possession including user of the land over a long period, see: Mondial Veneer Gh Ltd v Amuah Gyebu XV  1 SCGLR 468; also Abbey and Ors v Antwi  SCGLR 17.
The earliest evidence of acquisition led by the plaintiffs herein (indeed it was common cause between the parties), was with regard to a purchase of land by the two great friends, the ancestors of the parties. Exhibit C, the indenture by which the land was conveyed was tendered in this regard. That the joint purchasers intended to use the land jointly was evidenced by their occupation thereof: that they both built on the land but on opposite sides of it.
It was the evidence of the plaintiff that when both gentlemen died, their respective portions were inherited by their successors. It was therefore necessary, for the plaintiffs who sought a declaration of title to the land inherited by the successor of Opanin Abankwa, to demonstrate that at some point, the family of Opanin Kwasi Abankwa parted with their interest in the land and that the family of Ansa-Aku (the plaintiffs) acquired it from them.
The plaintiffs averred that such was the case, alleging that the successor of the patriarch Ansa-Aku: Kofi Twerefuour, acquired it by purchase from Kofi Amakye, the successor of Opanin Kwasi Abankwa. It however remained a bare assertion without a shred of proof, as no document, including a receipt of purchase was tendered to evidence the transfer of the interest of Opanin Abankwa to the family of Opanin Ansa-Ako. In spite of this serious lapse, the learned trial judge held that there was indeed a sale of the land in dispute by Amakye the successor to Opanin Twerefuor, Ansa-Ako’s successor, for One Hundred Pounds. She further held that even if it had been done without the concurrence of the defendants’ family, it was valid, for the defendants’ family failed to challenge it.
This holding completely disregarded the all-important matter of a document or other evidence of the alleged sale transaction.
It is noteworthy that while the plaintiffs failed to produce documents evidencing the sale of the half-plot belonging to the defendants’ family to their family, they were quick to tender Exhibit C, the original document of purchase, as well as receipts for the payments of ground rent which were said to have been made by various members of Ansa-Ako’s family. Although it seems to us that the tendering of the said receipts did nothing to advance the case of the plaintiffs since they were allegedly made in respect of land that was not formally divided and there is no indication that the half plots bore different numbers for which rate payments could be made separately, it was in our judgment, indicative of the plaintiffs’ appreciation of the value of documentary evidence. Thus the lack of it as evidence of this all-important transaction that allegedly changed the status of the plaintiffs’ family as joint owners to sole owners ought not to have been glossed over by the learned trial judge.
The plaintiffs also led evidence aimed at establishing their possession of the disputed land. They alleged that the land was occupied by a tenant Kofi Dompreh, placed thereat by Opanin Kofi Twerefuor the customary successor of their ancestor Opanin Ansa-Ako. The only evidence led in this behalf aimed at corroborating the position of the plaintiffs, was testimony given by Auntie Dora from Tema, who alleged that she had been the recipient of the rents after the death of Yaa Otema who lived on the land (Ansa-Ako’s portion). This piece of evidence was clearly self-serving, and she tendered no receipts of such payments to her, to corroborate her testimony.
The defendants on the other hand, alleged that after the collapse of the mud house put up by Opanin Kwasi Abankwa, the family placed Dompreh on the land to carry out his trade. They alleged that it was a gratuitous transaction, for Dompreh was considered a relation through marriage, a close friend of the head of family Asante, and that in any case, the land had become small due to the construction of a road in that area that took away some of the land. The defendants’ witness also said she had received rents from Dompreh.
Since Dompreh was the one in occupation of the land, and both parties claimed to have placed him there, it seems to us that evidence of who placed him on the land was essential to establish the one in possession thereof. Dompreh died before the instant matter could be heard. Although it was common cause that Dompreh’s workshop was still on the land, and that his workers were still operating the workshop, on the plaintiffs’ own showing, the mechanics who were on the land at the time the plaintiffs led evidence were there on the instructions of the defendants, an admission that the defendants were in possession at the time of suit. The plaintiffs however alleged that the mechanics, placed on the land through Dompreh, had in recent times been put off the land when a member of the plaintiffs’ family placed sand and stones thereat.
In the face of the rival stories, it was without doubt the one who was in charge of the workshop after Dompreh’s death and who allegedly continued paying rent to the plaintiffs, who could corroborate the plaintiffs’ story that rents were paid to the plaintiffs’ family through successive representatives. This would corroborate their story that it was indeed their ancestor Twerefuor, who had placed Dompreh on Kwame Abankwa’s portion of the land and received rent for his occupation, see: Asare v Appau II [1984-86] 1 1 GLR 599. The plaintiffs failed to call as witness the said occupant who allegedly paid rent to the plaintiff’s family thorough successive persons, the last being Auntie Dora.
In the absence of such evidence, the plaintiffs’ story that the land which originally belonged to Abankwa was sold to the plaintiffs’ family by Amakye, Abankwa’s successor, remained just that: a mere allegation, for there was no evidence of the sale, the testimonies of their witnesses being a mere repetition of matters pleaded, offering no proof of matters averred, see Majolagbe v Larbi  GLR 190; furthermore, the plaintiffs’ story of possession through a tenant was unproven.
In the face of these, the learned trial judge made much of the fact that the first defendant, head of Opanin Kwame Abankwa’s family (who had held the position for thirty-one years), had no knowledge of the payments of property rates and furthermore that on his own showing, he had laid claim to the land only four years before he gave evidence in court. She held that these negated the interest of the defendants’ family in the land.
There is no evidence that the payment of property rates by the plaintiffs was known to the defendants who in their pleadings denied any such knowledge. Furthermore, we note that the land in respect of which the said payments were said to have been made was never partitioned. Thus payments made by the owners of one half of the land without more, could not be said to amount to acts of ownership over the whole parcel of land, especially if they were not brought to the attention of the original owners of the other half, see: per Ansah JSC in Abbey and Ors v Antwi V  SCGLR 17“A claim of an adverse possession could not be based on clandestine payments of tribute alone. They must be open, visible, unchallenged and apparent so as to give notice to the legal owner that someone might be asserting a claim; for such payments as were met with opposition”.
They could not, without more, make the plaintiff’s case that the land in dispute which was the defendants’ family property through their ancestor Opanin Kwame ended up as the plaintiffs’ family property.
With regard to the time of first defendant’s laying claim to the land, as it was the defendants’ case that Dompreh was on the land as a licensee of his family and that it was only in recent times that a member of the plaintiffs’ family had placed sand and stones on the land in an obvious move to commence building on the land, it seems to us that the defendants had no reason to lay claim to the land before that act.
Indeed, it would only be said of the defendants that they had slept on their rights if after seeing someone exercising adverse rights over their land, they failed to act to protect their interest, see: Mensah v. Blow  G.L.R. 424.That was not the case in the instant matter, for the land was occupied by Dompreh (this was common ground) and as it was the defendants’ case that they placed the said gentleman on the land, the only act adverse to the interest of the defendants was the depositing of sand and stone by the plaintiff’s family. This, the defendants resisted immediately as the plaintiffs acknowledged in pleading and in evidence. Yet, even before this event, the defendants had not been silent on their right to the disputed land. The plaintiffs pleaded in their reply that after the death of Dompreh nine years before the commencement of the suit, the defendants had laid claim to the land. That it was an oral claim as they pleaded, did not detract from the fact that such claim was made by the defendants. Thus, the learned trial judge’s holding that the defendants’ were estopped by laches was not borne out by the facts, and was inapplicable to the instant matter.
On the whole, we find that in her evaluation of the evidence before her, the learned trial judge concerned herself with irrelevant matters regarding the discrepancy in the case of the defendants, rather than to have regard to the case put forward by the plaintiffs who sought a declaration of title to land which they admitted was originally the property of the defendants’ family. In so doing, the learned trial judge fell short of settled law, that a plaintiff seeking a declaration of title had to succeed on the strength of his own case, and not on the weakness of the opponent’s, see: Kodilinye v Odu (1935) 2 WACA 336 at 337 and that weakness in a defendant’s case does not relief the plaintiff of his assumed burden of proof. Indeed it was held in Barima Gyamfi v Ama Badu  2 GLR 596 SC that as there was no burden on the defendant to disprove the plaintiff’s claim, conflicts in the defendant’s evidence could not help the plaintiff’s weak case.
From our consideration of the instant matter having had regard to the pleadings and the evidence led, we reiterate that the judgment of the court below was not borne out by the evidence.
The appeal therefore has merit and is hereby allowed.
Costs of GH¢ 3000.00 to defendants/appellants.
MABEL M. AGYEMANG
(JUSTICE OF THE APPEAL)
K. A. ACQUAYE, J. A. I agree K. A. ACQUAYE
(JUSTICE OF THE APPEAL)
S. K. GYAN, J. A. I also agree SAEED K. GYAN
(JUSTICE OF THE APEPAL)