IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL
HO - A.D 2018
RAPHAEL KLUVI KPASRA - (Defendant/Appelant)
MICHAEL A. FIHO AND MEDZAGOR AGBENYEGAH - (Plaintiffs/Respondents)
SUIT NO: H1/01/2018
JUDGES: K. A. ACQUAYE J.A. (PRESIDING), K. S. GYAN J.A., M. M. AGYEMANG (MRS) J.A.
MR. PROSPER YAO NTOW FOR THE DEFENDANT/APPELLANT
MR. S.M.K. DZIKUNU ESQ FOR THE PLAINTIFFS/RESPONDENTS
ACQUAYE, J. A.
The plaintiffs/respondents issued a writ of summons claiming against the defendant/appellant:
(a) Declaration of title to a parcel of land situate at Aflao-Avenu in the Ketu South District of the Volta Region the boundaries of which were described.
(b) Recovery of possession
(c) General damages
(d) Perpetual injunction restraining the defendant, his servants, agents, workmen, assigns and all those claiming through him from entering or dealing with the said land.
It was the plaintiffs’ case that the land was originally acquired by one Kotoku who was inherited by Kotoku Sodzi followed by his daughter Madam Ahorlushie Kotoku Sodzi. The 2nd plaintiff testified that Madam Ahorlushie Kotoku Sodzi sold the land to the plaintiffs and issued a receipt dated 6th September, 1972 to them. The receipt was witnessed by Apedo Kodzo, Sowornude Kotoku, Masari Huser and Mawuli Kodzo all of whom are dead save the first one. The plaintiffs claimed that Mr. Kodzo Holor Kpasra the father of the defendant who was a brother of Kotoku Sodzi knew the land did not belong to him so when he was distributing his properties between the two sets of his children he did not include this property. The 2nd plaintiff testified that the defendant trespassed and planted coconut seedlings on the land. A complaint was lodged before Mensavi Housor who warned the defendant not to trespass onto the land. The 2nd plaintiff testified that they erected corner pillars on the land but the defendant removed them and when he was reported to the police the defendant went to replace the corner pillars.
The 2nd plaintiff testified that they ploughed the land but the defendant and his children went and planted crops on the land. Under cross-examination, the 2nd plaintiff said they bought the land about 42 years ago when the defendant’s father was alive but it is only the defendant who has been laying adverse claim to the land.
The defendants defence was that the land, situated behind the Diamond Cement at a place called Agbawoeme was founded by his great grandfather called Ayisi and that the land was gifted to his mother by his grandfather Kpasra. The defendant said he and his father had been farming on the land since his infancy and that he has cultivated coconut, mango, apple and iroko trees on the land without any challenge from anybody. The defendant testified that he had been farming on the land for about 50 years until recently when he realized that someone had destroyed his fence, cut and burnt some of his economic trees and that his investigations led to the 1st plaintiff.
In his judgment, the trial judge referred to what he described as a “Deed of Land Purchase” executed on the 6th day of September 1972 between Madam Ahorlushie Kotoku Sodzi and Mr. Michael A. Ezi Fiho and that apart from denying any sale of the disputed land, the defendant did not subject the document to any serious or proper scrutiny by way of cross-examination. The trial judge believed the testimony of PW1 Hodzi Kpasra, the defendant’s own brother that where the defendant is presently holding unto and has planted economic trees did not belong to their late father but to Ahorlushie Kotoku Sodzi. The trial judge referred to the challenge by the plaintiffs anytime the defendant entered the disputed land and concluded that on the facts and evidence before the court the plaintiffs’ case was credible and therefore gave judgment in favour of the plaintiffs.
Not satisfied with the judgment, the defendant has appealed against same with the only ground being that the judgment is against the weight of evidence led at the trial. In his submissions to this court, Counsel for the defendant/appellant stated that the plaintiffs in their evidence did not describe their boundaries, did not state with whom they shared boundaries nor did they tender any document or receipt they pleaded was given to them when they allegedly bought the land. Counsel for the defendant/appellant submitted that in land cases, the burden of proof and persuasion remains on the plaintiffs to prove on the balance of probabilities not only the boundaries of the land to which they claim but also the identity of the land. This burden, Counsel for the defendant/appellant contented, the plaintiffs/respondents failed to discharge because the plaintiffs failed to state the acreage of the land, its dimensions, his boundary owners or the price they paid for its purchase. The defendant/appellant on the other hand claimed he was on the land by virtue of inheritance from his grandfather through his father. Counsel referred to the defendant’s evidence that he has been on the disputed land for over 50 years and has cultivated such food crops like coconut, mango, blackberry, apple and iroko trees on the land which evidence the plaintiffs failed to challenge. Counsel also referred to the cross-examination of the defendant in which he denied that the plaintiff reported him to Mensavi Husor who told the defendant to stop planting coconut on the land. Counsel submitted that it was wrong for the trial judge to rely on the evidence of PW1 as the best way to test traditional history is by reference to the facts in recent years. Counsel said the defendant called boundary owners to give evidence on his behalf. Counsel for the defendant/appellant stated that cognizance must be taken of the fact that the defendant has been on the land for over 20 years so limitation of time applies. Counsel submitted that the defendant/appellant having been in adverse possession for all these years by the presence of his crops on the land the plaintiffs/respondents are deemed to have waived their right to the land as stated in the English case of Ramsden vrs. Dyson  L.R. 129. Counsel concluded his submissions by stating that the trial judge’s findings declaring title in the plaintiffs’ respondents was wrong and his subsequent grant to them of the orders of recovery of possession and injunction should be set aside and judgment entered for the appellant.
In answer to the submission that the plaintiffs failed to prove the boundaries of the land they claimed, Counsel for the plaintiffs/respondents submitted that the defendant admitted in his statement of defence the boundaries of the land described by the plaintiff in his statement of claim so there was no need for the plaintiff to lead any evidence on his boundaries. Counsel relied on Order 11 rule 13(1) and the case of Hesse vrs. Accra Municipal Council  G.L.R. 399 and Addo vrs. Asare  G.L.R. 231. Counsel admitted that the receipt titled “Deed of Land Purchase” was not tendered in evidence but submitted that the document was attached to an affidavit filed by the plaintiff for an interlocutory injunction which was part of the record of proceedings so the trial judge was right in relying on it in his judgment especially as the parties were not represented by counsel in the court below. Counsel said the trial judge tried to assist the parties during the hearing and the plaintiff did not tender the document because the trial judge did not ask him to. Being illiterate and not versed in the rules of procedure and evidence, counsel submitted the plaintiff might have thought there was no need to formally tender the document in evidence. Counsel submitted that it is in the interest of justice that the trial judge should consider the document in his judgment and that this court should not insist on a strict adherence to the rules of court and the rules of evidence as the parties were not represented in the court below. Counsel for the plaintiffs/respondents submitted that it is clear from the Deed of Land Purchase that the land was sold to Michael A. Ezi Fiho alone and since it is the law that all plaintiffs must have a common interest in the subject matter and all reliefs must arise out of the same transaction, the 2nd plaintiff did not have capacity to join in the issue of the writ and is thus not a proper party to the suit. Counsel submitted that the 2nd plaintiff should have been struck out under Order 4 rule 5(2) of the High Court Civil Procedure Rules (C.I.47 of 1984). As it was the 2nd plaintiff who testified for the 1st plaintiff and cross-examined the defendant and his witnesses, Counsel for the plaintiff/ respondent submitted that the whole trial was vitiated and compromised rendering the judgment void. Counsel submitted that this is a proper case for this court to order a retrial with the directive that the name of the 2nd plaintiff should be struck out from the suit.
The only ground set out and argued in this appeal is that the judgment is against the weight of evidence. In such a case, it has for some time been settled that “the appellate court is under an obligation to go through the entire record to satisfy itself that a party’s case is more probable than not”. As was said in the case of Tuakwa vrs. Bosom [2001-2002] S.C.G.L.R. 61 at 65 “it is incumbent upon an appellate court, in a civil case to analyse the entire record of the appeal, take into account the testimonies and all documentary evidence adduced at the trial before arriving at its decision, so as to satisfy itself that on a balance of probabilities, the conclusions of the trial judge are reasonable or amply supported by the evidence.” See also
Djin vrs. Musah [2007-2008] 1 S.C.G.L.R. 800.
Assibey vrs Gbomittah and Commander Osei (2012)2 SCGLR 800
In the instant appeal, the plaintiffs/respondents claim is the ownership of the land, the subject matter of the suit. The authorities abound that the plaintiff must succeed on the strength of his own case and never on the weakness of the defendant’s case. The law requires that the person asserting title and on whom the burden of persuasion falls as in the instant case, is to prove his root of title made up of the mode of acquisition supported by various acts of possession. See Abbey vrs. Antwi  S.C.G.L.R. 17 and Mondial Veneer (Gh.) Ltd. vrs. Amuah Gyebu XV  S.C.G.L.R. 466.
In Jass Co. Ltd and Another vrs Appau and Another (2009) S.C.G.L.R. 265 it was held that the burden of proof is always put on the plaintiff to satisfy the court on a balance of probabilities in an action for a declaration of title to land.
In paragraph 2 of the statement of claim and in the evidence of the 2nd plaintiff, the plaintiffs pleaded and testified that the disputed land is situate at Aflao-Avenu. In his statement of defence however the defendant pleaded that the land is situated at Aflao-Agbowoeme. The defendant and all his witnesses testified that the land was situated at Aflao-Agbawoeme. The plaintiff’s witnesses PW1 and PW2 testified that the disputed land is situated at Agbawoeme thus confirming the testimony of the defendant. In the case of Adjabi Kojo vrs Bonsie (1957) 3 WALR 237 it was held that where the evidence of one party is corroborated by the evidence of the other party the court is to accept the evidence of the party whose evidence has been corroborated as the truth. See also Banahene vrs Adinkra (1976) 1 GLR 346. We therefore accept the defendant’s evidence that the disputed land is situate at Lome-Agbawoeme in preference to the plaintiff’s evidence that the land is situate at Aflao-Avenu.
In an action for a declaration of title to land it is incumbent on the plaintiff to establish or prove the boundaries of the land he claims. In the case of Bedu and Others vrs Agbi and Others (1972)2 GLR 238 it was held that “The onus was on the plaintiffs to establish the exact boundaries of the land in dispute so that any judgment in their favour would be related to a defined area.” In this case the plaintiff failed to lead any evidence to establish any of the boundaries of the land he claimed. The trial judge relied on the Deed of Land Purchase which contained a description of the boundaries of the land claimed by the plaintiff to find for the plaintiff. As conceded by counsel for the plaintiffs/respondents, that document was not tendered in evidence during the testimony of the plaintiff and his witnesses. That document is also not attached to any affidavit but appears in the record of proceedings before any evidence was taken. Counsel for the plaintiffs/respondents submitted that once that document appears in the record of proceedings we should consider it in our judgment. Unfortunately, we must decline Counsel’s request. Judgments are delivered based on testimonies adduced in our courts with supporting documents which the opposing parties have had the chance to cross examine. It will not be in the interest of justice for a court to base its decision on a document which was not tendered during the trial and which does not show how it came to be included in the record of proceedings. It was manifestly wrong for the trial judge to rely exclusively on such a document to establish the boundaries and purchase price of the land allegedly purchased by the plaintiffs as the trial judge in this suit did. The case of Asante Appiah vrs Amponsah (2009) SCGLR 90 settled the law when it held that “However, the plaintiff could not lead any evidence as to how he bought the property, when he bought it, the auction or the sale at which he bought it, the price that he paid for it and the documentary proof establishing his title after the alleged sale”. As the plaintiff failed to lead any evidence to establish his boundaries and the price he paid to purchase the land or call a witness to prove same he woefully failed to discharge the obligation imposed on a plaintiff in an action for a declaration of title to land.
In an attempt to cure the failure of the plaintiff to prove his boundaries Counsel for the plaintiff/respondent submitted that the defendant admitted in his statement of defence the boundaries described by the plaintiff in his statement of claim so there was no need for the plaintiff to lead evidence to prove the boundaries. A look at the pleadings does not show that the defendant unequivocally admitted the boundaries as stated by the plaintiff in paragraph 2 of the statement of claim. The defendant pleaded in paragraph 3 of the statement of defence as follows:
The defendant admits part of paragraph 2 of the statement of claim but vehemently denies that the land is situate at Aflao-Avanu but rather at Afloa-Agbawoeme and its boundaries are the same but does not know its dimensions and/or measurements as contained therein.
The above is not a clear admission of the boundaries described in the statement of claim which statement also failed to describe the physical boundaries of the land. In any case in land cases it is a requirement that the boundaries and identity of the land must be proved by evidence and not assumed by the pleadings that is why in land cases after an interlocutory judgment has been obtained in default, the successful party must go into the witness box to lead evidence to prove his title which include proof of his boundaries. In this case also the identity of the land was in dispute as the defendant in his evidence testified that the plaintiffs vendor may have land in the area but the land on which he the defendant had cultivated food crops was not that land. Thus there was a duty cast on the plaintiff to prove by a preponderance of evidence the boundaries and identity of the land he claimed but he failed so to do.
It is a cardinal principle established in Mojalagbe vrs Larbi (1959) GLR re-echoed in many cases including Klah vrs Phoenix Insurance Co. Ltd (2012) SCGLR 1139 that where a party makes an averment capable of proof in some positive way e.g. by producing document, description of things and reference to other facts, and his averment is denied, he does not prove it by merely going into the witness box to repeat those averments on oath, but he proves it by producing other evidence of facts and circumstances from which the court can be satisfied that what he avers is true. The plaintiff pleaded he was given a Deed of Land Purchase but he failed to tender any such document in evidence. Section 11(I) of the Evidence Act NRCD 323 provides that the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid a ruling against him on the issue. Having failed to tender the Deed of purchase to corroborate his evidence that they purchased the disputed land, the plaintiffs cannot avoid a ruling against them on the issue of purchase of the land.
We have taken note of the observation in Bonney vrs. Bonney [1992-93] 2 G.B.R. 779 that “an appeal court ought not under any circumstances interfere with findings of fact by the trial judge except where they were clearly shown to be wrong, or that the judge did not take all the circumstances and evidence into account or had misapprehended some evidence or had drawn wrong inferences without any evidence in support or had not taken proper advantage of his having seen or heard in support of the witness.” An appellate court is empowered to interfere in the exercise of a trial court’s discretion if “it is shown that the court acted under a misapprehension of fact in that it gave weight to irrelevant or unproved matters or omitted to take relevant matters into account” – See Owusu vrs. Owusu-Ansah [2007-2008] S.C.G.L.R. 870.
Having shown that the trial judge wrongly gave weight to unproved matters by his reliance on the non-existent Deed of Land Purchase in proving title in the plaintiffs, we hereby set aside the finding that the plaintiffs proved their purchase and hence their title to the land in dispute.
Counsel for the plaintiff/respondent submitted that the 2nd plaintiff who testified and cross examined the defendant and his witnesses did not have capacity to do so hence he should be struck out as a party in the suit and a rehearing ordered. It is trite that in a civil suit it is the plaintiff who assumes the burden of leading such evidence as will establish the requisite degree of belief concerning a fact in the mind of the court failing which he stands the risk of having his case thrown out. Having failed to establish their case the only course open to us is to non-suit the plaintiff’s but not to give them another chance by ordering a re-hearing as the defendant did not counterclaim.
In the circumstance the appeal succeeds and it is allowed. The judgment of the trial court dated 21st July 2015 is hereby set aside together with all the orders contained therein. The trial judge should have dismissed the plaintiffs/respondents claims and they are hereby dismissed.
We award cost of Gh⊄3,000.00 against the plaintiffs/respondents
K. A. ACQUAYE
(JUSTICE OF APPEAL)
S. K. GYAN, J.A, I AGREE S. KWEKU GYAN
(JUSTICE OF APPEAL)
M. M. AGYEMANG (MRS) J.A, I ALSO AGREE MABEL M. AGYEMANG (MRS)
(JUSTICE OF APPEAL)