IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL
KOFORIDUA - A.D 2018
OSEI KARIKARI- (Plaintiff/Appellant)
KWAME ADDO, AKOSUA BADU AND OSEI YEBOAH - (Defendants/Respondents)
DATE: 26 TH NOVEMBER, 2018
SUIT NO: H1/22/2018
JUDGES: K.A. ACQUAYE JA (PRESIDENT), S. KWEKU GYAN J.A, MABEL M. AGYEMANG (MRS) J.A
CHRISTOPHER ARCHER WITH DENNIS M. ARYEE FOR THE PLAINTIFF/ APPELLANT
FRANK DONKOR FOR THE DEFENDANTS/ RESPONDENTS
K. A. ACQUAYE, J.A
This judgment is in respect of an appeal lodged against the judgment delivered by a High Court in Koforidua on 25th July 2017, in which the claims of the plaintiff were dismissed and judgment entered for the defendants on their counterclaim.
It all started when the plaintiff took out a writ of summons on behalf of the family of Kwame Karikari on 27th January 2012 claiming against the defendants:
a) An order for declaration of title to the parcel of land situate, lying and being at Kwayemu in the New Juaben Municipal Area bounded as follows:
On one side by the property of Kwabena Amoah, on another side by the property of Boateng, on another side by the property of Akua Antwua, on another side by the property of Adwoa Twei and on the last side by the property of Kwabena Broja.
b) Recovery of possession of the said land
c) Damages for trespass
d) An order of perpetual injunction to restrain the defendants, their agents, workmen, servants or assigns from entering the land.
The plaintiff’s case was that one Kwabena Karikari who was his father bought the disputed land in 1951 for £27 from the family of Afua Daawah who gave his father a receipt and an affidavit. The plaintiff testified that the land was sold by Afua Daawah in consultation with members of her family who were Abena Kah, Adwoa Twei and their head of family Okyeame Addo Kofi and witnessed by Nana Frimpong Bossoh II, Nifahene of New Juaben Traditional Council. The receipt and affidavit were tendered in evidence without objection and marked as Exhibits A and B respectively. The plaintiff said he sued the defendants because they have been selling his father’s land which had been settled on they the children by their father’s customary successor. The plaintiff testified that the area where the land lies is called Kwayemu because the whole area was a forest and denied that the area is called Kyekyewere separated from Kwayemu by a stream called Okome. The plaintiff admitted that he collected the compensation of Gh⊄120,000 when the land was leased to the Roman Catholic Church. PW1, a paternal sister of the plaintiff corroborated the plaintiff’s evidence and explained that the defendants are related to the witnesses who signed the receipt Exhibit A in that the 1st defendants mother was Maame Afua Dawa, the 3rd defendant’s father’s mother was Maame Adwoa Antwua and Papa Addo Kofi was the defendant’s head of family. PW2, who seemed to be related to both parties confirmed the evidence of the plaintiff and gave more details of the relationship between the defendants and those who signed the receipts as witnesses.
In their amended statement of defence the defendants admitted that their grandmother Afua Daawah sold a parcel of land situated at Kwayem to Kwabena Karikari for £27 and prepared a receipt and affidavit witnessed by members of their family in 1951. The defendants also admitted in their amended statement of defence that they have no interest in the land their ancestor sold to Kwabena Karikari and that this dispute relates to the land as described by the plaintiff. The defendants contended that whilst the plaintiff’s land lies at Kwayemu the defendants’ family land lies at Kyekyewere and that the two lands are separated by the Okome stream. The defendants stated that their land is bounded by the properties of Elder Omane, Maame Saama, Mr. Berko, Mr Oklu and Mr. Kweku Duah and the last boundary by Opanin Yaw Kyei. The defendants stated that their family have been in possession of their land for several years and they have grown food crops on the land all these years. The defendants tendered two (2) receipts from pledges of their Kyekyewere land. According to the defendants the Roman Catholic Church recently entered about 6.39 acres of their land but paid the compensation of Gh⊄120,000.00 to the plaintiff out of which the plaintiff paid some amounts to Papa Kwesi Addai’s wife, Elder Omane and others but refused to pay the defendants so they were demanding Gh⊄108,000.00. The 1st defendant stated that the land allocated to the Roman Catholic Church is situated on their Kyekyewere land and does not form part of the land sold to Kwabena Karikari by Efua Daawa even though the 2nd defendant admitted under cross-examination that the disputed land is at Kwauemu. The defendants therefore counterclaimed for:-
A declaration that Efuua Daawa’s family of Effiduase were in possession and was farming the land situate and lying at Kyekyewere Effiduase which land is described in paragraph 7 of the statement of defence.
Recovery of Gh⊄108,000.00 being compensation received by the plaintiff from the Roman Catholic Church which money ought to have been paid to the defendant’s family.
Interest at the commercial bank rate from the date of payment to the plaintiff to the date the plaintiff will make final payment to the defendants.
Any other reliefs the justices of this case may require After hearing the parties and their witnesses including the court witness from the Lands Commission, Koforidua who conducted a survey of the disputed land and tendered a composite site plan, the last trial judge who delivered the judgment correctly stated the law on the burden of producing evidence and the burden of persuasion which lied on both parties. She also correctly dismissed the issue of the capacity of the plaintiff which had been questioned by Counsel for the defendants but which he finally conceded. The trial judge reviewed the evidence of both parties and concluded “on the matter of acquisition that on the preponderance of probabilities, the plaintiff has been able to establish his acquisition of the land in question”. The trial judge then proceeded to examine the issue of possession of the disputed land by each party and found that the plaintiff failed to prove the identity of the land he claimed but the defendants led evidence to show that they have been in possession of their land for many years. The trial judge quoted Osei Vrs Korang (2013-2014) 1 SCGLR 221 in which the Supreme Court held that “Now in law, possession is nine points of the law and a plaintiff in possession has a good title against the whole world except one with a better title”. The trial judge found that the plaintiff has the document evidencing the sale of the land to his deceased father but he could not identify the land so on the preponderance of probabilities, it is more probable than not that the defendants’ family are the owners of the disputed land. She therefore dismissed the plaintiff’s claims and entered judgment for the defendants declaring that the land belongs to the defendants and ordered the defendants to recover the compensation paid by the Roman Catholic Church to the plaintiff.
Dissatisfied with the judgment the plaintiff filed a notice of appeal setting forth the following grounds of appeal: -
a) The learned trial judge erred in law when she held that although the plaintiff had proved his title to the disputed land on the balance of probabilities through oral and documentary evidence he was not the owner because he had failed to show acts of possession.
b) The learned trial judge erred in law when she held that the defendants had proved possession of the land and were therefore owners of the land
c) The learned trial judge erred when she took into consideration extraneous matters which were not issues for consideration such as the reliance on twelve years of possession by the head of family of defendants’ family.
d) The learned trial judge erred when she placed total reliance on the composite plan prepared by the surveyor for a determination of the boundaries of the land claimed by plaintiff.
e) The judgment is against the weight of evidence adduced.
The appellant therefore sought an order that the judgment of the trial court dated 25th July 2017 be reversed and that title to the land in dispute be declared in favour of the appellant and a further order that the appellant recovers possession of the land in dispute.
Counsel for the plaintiff/appellant in his submissions argued the first two grounds of appeal together that is, although the plaintiff proved his title he was not the owner of the land because he failed to show acts of possession unlike the defendants did. Counsel referred to Exhibit A, which transferred the interest of Afua Daawa in the land to Kwabena Karikari, Exhibit B which is the affidavit of Afua Daawa confirming the sale of the land to Kwabena Karikari and the composite plan tendered by the surveyor as well as the testimonies of the plaintiff and his witnesses all of which confirmed the ownership of the plaintiff to the disputed land. Counsel for the plaintiff/appellant then referred to the defendant’s evidence and their tendering of Exhibits 1 and 2 which the trial judge found not to have any relation to the land in dispute. Counsel then quoted the trial judge’s finding that “I therefore conclude on the matter of acquisition that on the preponderance of probabilities, the plaintiff has been able to establish his acquisition of the land in question” and submitted that that should have concluded the issue of title as that conclusion would have been supported by the evidence on record. Counsel submitted that the trial judge however proceeded to adopt a mechanical approach to the determination of ownership and therefore proceeded to consider possession which led her to err because possession cannot override or oust the valid acquisition of the land by the plaintiff. Counsel for the plaintiff/appellant then quoted cases to support the position of the law that a person in possession of land is entitled to protection of the law against the whole world except the true owner or someone who could prove a better title.
Counsel for the plaintiff/appellant then argued the third ground of appeal that the trial judge erred when she took into consideration extraneous matters such as twelve years’ adverse possession by the defendants. Counsel referred to DW1’s evidence that he had been on the land for twelve years and submitted that the defendants never pleaded the plaintiff’s claim was statute barred or acquiesced to the defendants being on the land. Counsel also attacked the trial judge’s questioning the plaintiffs site plan prepared whilst the suit was pending and submitted that it was prudent for identification purposes since by the evidence of the Courts Witness the site plan was virtually the same as that shown on the ground. Counsel concluded this ground by submitting that these extraneous matters affected the findings of fact by the trial judge in that the reasons in support of the findings were unsatisfactory and were unsupported by the evidence. On the last ground Counsel submitted that the trial judge erred when she placed total reliance on the composite plan prepared by the surveyor in determining the boundaries of the land claimed by the plaintiff.
Counsel for the plaintiff/appellant referred to the need for parties claiming title to land to prove the identity of the land they claimed and appreciated the trial judge’s appointment of a surveyor to draw a composite plan of the area in dispute when the plaintiff called the area Kwayemu and the defendants Kyekyewere. Counsel said of paramount importance here was whether the land is at Kwayemu or Kyekyewere or whether Kyekyewere refers to a portion of Kwayemu and if it does, whether the land in dispute falls within it. Counsel referred to the Surveyors evidence that he did not know how the area was called but that part of the land claimed by the plaintiff is the same as that claimed by the defendants. Counsel however disagreed with the trial judge for accepting the Surveyors evidence that on the day of demarcation, boundary owners which he called neighbours of the defendant were present and confirmed the boundaries as shown by the defendant and submitted that reliance on this as corroborating the testimony of the defendants was wrong and fatal. This according to Counsel for the plaintiff/appellant raised doubts in the work of the Surveyor and the court ought not to have relied on the survey plan of CW1. Counsel therefore urged us to allow the appeal and grant the reliefs claimed by the plaintiff.
Responding to the plaintiff/appellant’s appeal the first issue argued by Counsel for the defendants/respondents was that the plaintiff did not have capacity to institute this action. Counsel referred to the admission by the plaintiff and PW1 that they belong to the matrimonial family and submitted that not being members of their father Kwabena Karikari’s family when he died in 1951, the plaintiff has no interest in the properties acquired by his father. Counsel submitted that there is a vast difference between giving and gifting and that the evidence was that Kwabena Karikari’s successor gave the land to the children but did not gift it to them so the children do not have capacity to sue for the land.
On the first ground of appeal that the plaintiff/appellant proved ownership of the land but not possession, Counsel for the defendants/respondent submitted that it is agreed that the disputed land falls within the Koforidua lands vested in the state for the New Juaben Stool so on the authority of Memuna Moedy and Others vrs Antwi (2003 – 2004) 2 SCGLR 967 persons cultivating vested lands are licensees. As such the court cannot declare title in either party so this ground of appeal should be dismissed.
On the second ground of appeal that the trial judge erred in law when she held that the defendants had proved possession of the land and were therefore owners of the land Counsel referred to the defendants evidence where they traced their root of title to their ancestors led by Okyeame Addo Kofi who settled on the land over 100 years ago, broke the virgin forest and cultivated cocoa and other crops and the fact that they have been in effective possession of the land till now. Counsel therefore invited us not to disturb the finding of the learned trial judge that the defendants were in effective possession of the land. Counsel for the defendant’s/respondents then argued grounds (c) and (d) together and submitted that the plaintiff’s instructions to the surveyor did not direct the surveyor to plot the plaintiff’s acts of ownership or possession on the land whilst the defendant requested the surveyor to indicate common boundary owners, acts of possession like sand winning and farms like pear and palm trees which the surveyor duly plotted on the composite map. According to Counsel for the defendants/respondents his opponent was given the opportunity to cross-examine the surveyor CW1 but he could ask only one question and submitted that failure to call boundary owners and show acts of possession proved fatal to the plaintiff/appellant’s case. Counsel concluded that since the land is a vested land the trial judge cannot declare title in the defendants/respondents but state as she rightly did that the defendants/respondents are in possession. On the last ground of appeal that the judgment is against the weight of evidence, Counsel submitted that the trial judge took into consideration all the evidence led and the documents tendered in evidence especially the Court Witness Exhibit CE1 in delivering judgment. Counsel submitted that the grounds of appeal stated in the Notice of Appeal should be dismissed and with them the reliefs sought.
The first issue raised by Counsel for the defendants/respondents was that the plaintiff appellant being a son to a man in a matrilineal family, not being a member of his father’s family has no locus to institute this suit in respect of the man’s self-acquired land or property. Since this is an appellate court every ground argued must be set out in a notice of appeal and not conjured out of the blue sky. The defendants/respondents did not cross appeal for them to raise this ground neither were the plaintiff/appellant given the opportunity to argue it out in their submissions. Procedurally, raising this issue in their answer amounts to what may be termed communist inferior tactics which must not be allowed in a court of law. The unchallenged evidence on record is that the man who customarily succeeded the plaintiff/appellant’s father gave the land to the plaintiff/appellant and his siblings so the plaintiff/appellant has every right to sue to protect same. Thirdly, Counsel for the defendants/respondents himself conceded to the capacity of the plaintiff in his written address in the court below so it is not too professional to raise the issue again the way he did on appeal. That ground has no merit whatsoever and it is dismissed.
The first ground of appeal argued on behalf of the plaintiff/appellant was that having found that the plaintiff had proved his title by both oral and documentary evidence, the trial judge erred by holding that the plaintiff was not the owner because he failed to show acts of possession. To this Counsel for the defendants/respondents replied that Koforidua lands are vested in the state so the court could not decree ownership in either party.
The issues to consider in this ground of appeal are first whether the trial judge was right in holding that the defendants are the owners of the land by their long possession and secondly, whether in view of the vested nature of Koforidua lands in the government either party can be declared the owner. The trial judge did very well when she juxtaposed the conflicting interest of both parties to the land in dispute marked by the land acquired by the Roman Catholic Church. Both parties claimed the land as theirs. The surveyor CW1 drew and marked it as being in the center of the dispute between the two parties. Whether the area was called Kwayemu or Kyekyewere is of no consequence. The important question is apart from the land being vested in the government, which of the two parties is otherwise entitled to the land. The trial judge considered the oral as well as the documentary evidence of the parties and found that “there is no linkage or connection between the defendant’s oral evidence and their documentary evidence. Then again, the defendants in their amended statement of defence and various oral evidence admitted that their grandmother, Aua Daawa sold a parcel of land to the plaintiff’s father” and rightly concluded that “on the preponderance of probabilities, the plaintiff has been able to establish his acquisition of the land in question”. Having found that the plaintiff has been able to prove his acquisition of the land the trial judge should have decreed ownership in the plaintiff and not gone ahead to consider who was in possession of the land as the defendants did not plead possessory title.
The trial judge rightly quoted the law in Osei (substituted by Gilard) vrs Korang (2013-2014)1 SCGLR 221 THAT “possession is nine points of the law and a plaintiff in possession has a good title against the whole world except one with a better title”. The trial judge erred by failing to appreciate that the plaintiff, having proved the acquisition of the land from the defendant’s ancestor has a better title to the defendant’s possession of the land for whilst possession is nine tenth of ownership, having title is hundred percent of ownership and greater than the defendants possessory nine tenths. The trial judge rightly considered the decision in Davies vrs Randall and Another (1964) GLR 671 that mere possession of land however long cannot confer title but failed to apply it. The trial judge therefore erred when she held the defendants ninety percent possession over and above the plaintiffs hundred percent ownership.
We therefore agree with Counsel for the plaintiff/appellant that the trial judge, having found that the plaintiff proved his acquisition of the land by oral and documentary evidence, erred in holding that he was not the owner thereof because the defendants showed that they have been in long and undisturbed possession. This ground of appeal succeeds and it is upheld.
On the second part of this ground of appeal that Koforidua lands are vested in the government so the court cannot decree title in either party, we find the judgment of the Supreme Court in the case of Memuna Moudy and Others vrs Antwi (2003-2004) SCGLR 967 very instructive and appropriate which we quote as follows:-
“Land compulsorily acquired by government under the Public Lands Ordinance, Cap 134 (1951 Rev) vests automatically in the government upon a publication in the gazette; and further that by virtue of Section 11 of the Ordinance, the acquisition operates to bar and destroy “all other estates, rights, titles, remainders, reversions, limitations, trusts, and interests whatsoever of and in the lands” acquired. And under Section 12 (2) a certificate of title issued by the court in respect of the acquired land confers upon the holder “an absolute title and indefeasible right to the lands free from all adverse or competing rights, titles, interests, trust, claims and demands whatsoever. The rights, estates, limitations etc are those existing in the land as at the date of acquisition i.e at the date of the publication of gazzette. Since the statute does not expressly bar the acquisition of any interest whatsoever in the land by the previous owner or persons claiming through him, in the future, the previous owner, who nevertheless continues to remain on the land after the land has been vested in the state, can maintain an action or defence based on his adverse possession.
2. Since the disputed land had been compulsorily acquired by the government, the plaintiffs had the burden of proving the extent or identity of the land owned by them as well as the mode of acquisition”.
It is apparent from the above that having remained on the land (from the plaintiff’s evidence and the cross-examination of PW1) after the government’s acquisition, the plaintiff/appellant still has interest in the land which he can sue to protect. The answer by Counsel for the defendants/respondents that the land is vested in the government so neither party can be declared owner of the land is misconceived and is hereby dismissed.
Another area where the trial judge erred was her holding that even though the plaintiff was able to prove his title, he failed to establish his boundaries. The court appointed a surveyor who drew and tendered as Exhibit CE1 a composite plan of the land claimed by both parties. The land claimed by the plaintiff is clearly delineated on the composite plan which also shows the area in dispute. Any judgment for either party will relate to the boundaries as demarcated in the composite plan exhibit CE1 which have the grid lines which can be identified on the map and ground by any surveyor. In as much as the trial judge erred in holding that the plaintiff failed to establish his boundaries, so too did Counsel for the plaintiff/appellant err in setting down the fourth ground of appeal that the trial judge erred when she placed total reliance on the composite plan prepared by the surveyor. We uphold the correctness of the survey plan exhibit CE1 and dismiss the plaintiff/appellants fourth ground of appeal.
Having found that the trial judge erred in entering judgment for the defendants/respondents we agree with the firth ground of appeal that the judgment was against the weight of evidence led at the trial. We reverse the conclusions of the trial judge and rescind her order that the defendants/respondents recover the compensation paid to the plaintiff/appellant with interest.
The appeal thus succeeds.
We order a declaration of title against the defendants/respondents for the land claimed in the writ of summons.
As the land has been validly leased to the Roman Catholic Church by the Lands Commission which is the appropriate government agency for managing lands acquired by the government and compensation has been collected by the plaintiff/appellant, the plaintiff/appellant’s claim for recovery of possession of the said land is not sustainable and is dismissed.
We award Gh⊄5,000.00 general damages against the defendants/respondents for trespass.
We order perpetual injunction restraining the defendants/respondents, their agents, workmen, servants or assigns from entering upon the said land.
We award cost of Gh⊄5,000.00 against the defendants/respondents in favour of the plaintiff/appellant.