In this appeal against the judgment of the High Court Koforidua, delivered on the 31^st of October 2014, the defendant/appellant (hereafter referred to alternately as the defendant, or the appellant) seeks a setting aside of the judgment of that court.

The matters that have given rise to the appeal are set out hereafter.

The plaintiff/respondent (referred to as the plaintiff, or the respondent) brought suit at the court below for herself and for her siblings, seeking inter alia, a declaration of title to land situate at Srodae, Koforidua, and bounded on all sides by the property of Kofi Adjatey, Kofi Kumah, Defendant’s land and the Koforidua Huhunya Road; recovery of possession, and damages for trespass.

It was the case of the plaintiff that her father who died in 1973 was in his lifetime, a transport owner. She alleged that in 1943, her father acquired a parcel of land with building thereon, from one Kwame Adjaye who conveyed same to the plaintiff’s father with the consent of the Omanhen of New Juaben. It was her evidence that in 1954, her father put up a building on a portion of the land. She recounted that part of the land acquired by her father was later earmarked for a proposed motor road and that the said plan having been abandoned by the government, the land reverted to her father. She alleged that while that portion of the land, facing the Koforidua-Huhunya Road remained earmarked, her father put up a temporary structure, a shed which he used as a car lot for his three commercial trucks, and a store to keep his spare parts in. The plaintiff further alleged that the defendant’s father who was a close friend of her father, and who had no property in Koforidua, was given some land by her father to build on. Their two plots of land, contiguous to each other, were separated by the stretch of land which had been the proposed motor road.

According to the plaintiff, her father’s use of the land (which had been the proposed road), as a parking lot never changed, and he continued to use it as such until his death in 1973. After his death, the plaintiff’s siblings remained on the land, carrying on various commercial activities, including selling from a store and kiosks, until the shed was demolished. It was the plaintiff’s case (which was not challenged in cross-examination), that it was the defendant who reportedly caused the demolition. The defendant then commenced the construction of a fence wall which fairly blocked the entrance to the plaintiff’s property. It was alleged that the Town Planning office made him to stop the construction. The defendant also allegedly sold off part of the disputed land, encroaching upon the plaintiff’s father’s property. The plaintiff alleged that all this while, records at both the Lands Commission and the Town and Country Planning offices in Koforidua, confirmed her father’s ownership of the land in dispute.

It was the case of the defendant that his father, one Lawrence Kwaku Seadey (known simply as Kwaku Seadey), purchased land from one Opanin Adu for £48 the equivalent of c115.20 in 1965, and that the said land, situate and lying at Anlo Town Koforidua, was bounded on one side by the property of Totime; on one side by the property of Kofi Ayitey, on one side by the property of Kofi Ankumah and on one other side by the Huhunya-Koforidua motor road. The said land, he averred, included the land in dispute which shared a boundary with the plaintiff’s father’s land, and that his father put up a mud dwelling house thereat for the occupation of his family and fenced it with iron sheets. The dispute took them to the Town and Country Planning Office, and from there, to the Lands Commission Koforidua, where his claim to the area of dispute was allegedly confirmed. He alleged that the plaintiff had rather encroached on his land, building a boys’ quarters which was attached to his building, and erecting a kiosk thereat, and that he had fiercely resisted the plaintiff’s attempt to put up a kitchen on his land.

After a full trial, the learned trial judge delivered himself of a judgment in favour of the plaintiff.

It is against the said judgment that the instant appeal has been brought.

The appellant set out three substantive grounds of appeal which we reproduce as follows:

The judgment is against the weight of the evidence in the matter;

The trial court erred in law when it wrongly gave judgment to the plaintiff in respect of the land in dispute, as the evidence of the plaintiff did not support the land being claimed;

The trial court erroneously refused to consider the evidence of the surveyor from the Lands Commission.

As a preliminary matter we must state that grounds b. and c. are, like the omnibus ground set out as the first ground of appeal, complaints against the evaluation of the evidence. For this reason, the said grounds may be subsumed under the first ground which invokes the jurisdiction of this court under Rule 8(1) of the Court of Appeal Rules CI 19, to rehear the matter. In this enterprise, the appellant has a duty to point out pieces of evidence which he claims were wrongly evaluated by the trial court leading to a wrong conclusion, in that if they had been properly applied in his favour, the conclusion arrived at by the trial judge would have been different see: Djin v Musa Baako [2007-2008] 1 SCGLR 686. Mindful of the caveat that we as an appellate court must be slow to set aside the primary findings of the trial judge who has the exclusive jurisdiction to make such, unless there is revealed in the judgment some blunder or error in the evaluation of the evidence led by the trial court resulting in a miscarriage of justice, see: Koglex Ltd No.2 v Filed [2000] SCGLR 175, we exercise our jurisdiction by evaluating the evidence led to come to our own conclusions, in support of or against the trial court’s findings, see: Oppong Kofi and Ors. v. Attibrukusu III [2011] 1 SCGLR 176 also: Tuakwa v Bosom [2001-2002] SCGLR 61 .

Was the judgment against the weight of the evidence led?

In his submission before us, the appellant complains that the learned trial judge failed to evaluate the evidence led, but simply reproduced the pleadings of the parties, the issues set out for determination, and stated his opinion. He further complains that the learned trial judge rejected the title document tendered by the defendant, and upon doing so, entered judgment for the plaintiff. Citing Nortey (No.2) v African Institute of Journalism and Communication and Ors. (No.2) [2013-2014 ] 1 SCGLR 703 the appellant contends that the judgment entered for the plaintiff was erroneously done, as she failed to adequately describe the land in dispute, (including calling boundary owners), and that such was a failure to discharge the burden of proof in a claim for declaration of title to land. The respondent, countering these arguments, has roundly refuted the said complaints, contending that the judgment was sound, as it was supportable from the evidence.

We have noted that in entering judgment for the plaintiff, the learned trial judge expressed himself to have been persuaded by her document of title, exhibit A, which recited that the land was transferred to the plaintiff’s father by one Kwame Adjaye with the consent and concurrence of the Omanhene of New Juaben to the plaintiffs’ father in 1943. Of the defendant’s claim which was founded on an alleged purchase in 1965, he held that since New Juaben Lands were from 1961, vested in the President, Koforidua lands were from that date unsaleable. Thus, the defendant’s claim to the land was invalidated, as he traced his root of title to a transfer by Opanin Kofi Adu to his father in 1965, four years after the vesting of the lands in the President of the Republic. He added that the defendant’s document of title, recited a sale by the said Opanin Kofi Adu to Kwaku Sali of Togoland, although Kwaku Seadey signed without designation, and was for that reason, rejected.

We have considered the totality of the evidence led. First of all, we must point out that the arguments of the defendant regarding the burden of proof he alleged was not met by the plaintiff, were misconceived. This is because the evidence of the plaintiff, and PW2 which seemed to be at variance with the description contained in the plaintiff’s claim, were with respect to the plaintiff’s entire land, and not the area in dispute which was an area lying between the acknowledged properties of the fathers of the parties. In her evidence in chief, the plaintiff described the whole of the land acquired by her father as: bounded on one side by Okanse’s; at the upper side by the Totimens, the Huhunya road, and Kofi Ankumah on the other side. Exhibit A does not appear to contradict this description as it describes the land as: bounded on the north by the Huhunya road; on the South by a lane; on the east by a proposed street, and on the west by Fisorbor Ocansey. That is not the land in dispute. The land in dispute is the land which the plaintiff said was originally part of the land acquired by her father, but which he left undeveloped due to a proposed road that was never constructed. This area, the plaintiff’s father allegedly occupied exclusively, using same as a parking lot until his death in 1973. His successors-in-title: the siblings of the plaintiff also allegedly continued to occupy it exclusively, using same for commercial enterprise. That is the land that the defendant who also has land in the area, is alleged to have encroached upon, and was described by the plaintiff in her writ of summons as having the following borders: Kofi Adjatey (the plaintiff’s father was known by that name), one Kofi Kumah, and the Koforidua-Huhunya Road. Having so described the area of dispute, it is incorrect for the defendant to argue that the plaintiff failed to describe her boundaries adequately, and to thereby contend that she failed to discharge the burden of proof she assumed. This was essentially a border dispute. The learned trial judge guided himself on the import of EI 195/61. This Executive Instrument vested all New Juaben Stool Lands in the President of the Republic in 1961. That the land in dispute was stool land was not pleaded, but exhibit A by which the plaintiff’s father’s land was conveyed to him recited that the transfer was done with the concurrence of the Chief and elders of the New Juaben stool. No challenge was raised by the defendant in respect of this piece of evidence which would transform the land in dispute to stool land. It seems to us that the unchallenged documentary evidence – exhibit A supports the finding that the land acquired by the plaintiff’s father which bordered a proposed road (the area of dispute), was stool land. Even so, it seems to us that since the defendant’s entitlement to land in the area was acknowledged, and was never in issue between the parties, and that the area of dispute was really one of the proper demarcation of the boundary between their lands: (whether the undeveloped space between the properties belonged to the plaintiff’s father or the defendant’s), a foray into whether or not the transfer of the defendant’s entire land by Opanin Adu to the defendant’s father in 1965 conveyed interest in the land to the defendant, was unwarranted.

Yet it seems to us that the evidence of the exclusive possession of the plaintiff’s family of the area in dispute, supported the case of the plaintiff. The plaintiff’s evidence that the area of dispute was in the possession of her father who turned same into a parking lot, was not challenged in cross-examination. Her evidence was in fact corroborated by her two witnesses who averred that even after the death of the plaintiff’s father, members of the plaintiff’s family continued to use the land for their commercial activities until the defendant caused the shed constructed by the plaintiff’s father to be demolished. The defendant’s disavowals of such occupation and use were simply protestations, unsupported by any corroborative evidence in the face of overwhelming evidence of long occupation by the plaintiff’s father, and after his death, his family. We find that both in adducing evidence as to title, and evidence of possession, the plaintiff proved her claim to the land in dispute on the balance of the probabilities. Thus was the learned trial judge’s decision supportable in fact and in law.

The defendant who filed a counterclaim failed to discharge the burden of proof which was the same as the burden assumed by plaintiff in a suit, to prove what he asserted on the preponderance of the probabilities, see: per R.C Owusu in Kwadwo Bamfo v Kwasi Sintintim [2012] 14 GMJ 1 at 8: “a counterclaim is a different action in which the defendant/counterclaimant is the plaintiff and the plaintiff becomes a defendant”, also: Opanin Kwasi Asamoah v Kwadwo Appea [2003-2004] SCGLR 226. He failed to lead evidence in proof of the land he claimed to be his, for short of tendering a document of title (which was unfortunately rejected), he failed to adduce evidence of possession of the land in dispute either by his father or himself. He also failed to call any witness to substantiate his assertion made both in pleading and in evidence, that officials from the Lands Commission and the Town and Country Planning had confirmed his title to the land in dispute.

On Ground c. (which has been subsumed under the omnibus ground), the appellant has complained that the learned trial judge failed to evaluate and take into consideration the evidence of CW1 the surveyor. But it seems to us, having had regard to that witness’ evidence that it added nothing by way of proof or corroboration of the case of the defendant. The said witness who tendered a composite plan of land, drawn using the respective plans of the parties at the instance of the court, indicated on the plan (C1), that the two parties had land in the area. He marked that open space between them as the area of dispute. He then testified that the two parties had land in the area which was separated by a stretch of land close to a plot of land in size. He said nothing which would make the case one way or the other for either party regarding the land in dispute, which was the former proposed road. Indeed, on his own showing, he did not even investigate from the Town and Country Planning office, whether or not there had ever been that proposed road.

It seems to us having had regard to all the evidence, that there was no evidence upon which the defendant established his counterclaim to the land in dispute. Thus the learned trial judge’s failure to make such finding did not occasion a miscarriage of justice.

The appellant failed to specifically attack the award of damages by setting same out as a ground of appeal. Rather he argued in his submission that there was no basis for the award. It is our view that the arguments in this respect not being anchored on a ground of appeal, ought properly to be discountenanced. But in the discharge of our duty to rehear the entire case, we will have regard to the arguments and say first of all, that the award of damages is in consonance with the evidence led: that the shed constructed by the plaintiff’s father, used by him as a parking lot until his death in 1973, and used by his successors-in-title as a place of commercial enterprise, was demolished at the instance of the defendant. We note that the plaintiff’s assertion that the defendant demolished her father’s shed was not challenged during cross-examination.

The defendant/appellant in his submission before us, has reproduced answers given by the plaintiff’s witnesses in a bid to demonstrate that the plaintiff’s witnesses more or less recanted that there had been such demolition. It is to be noted, however, that the witnesses appeared to refer to the house constructed as a dwelling house by the plaintiff’s father, which was still standing and had not been demolished, and not the shed which was in the area of dispute. Of the shed in the area of dispute, PW1 corroborating the evidence of the plaintiff, stated in his examination-in-chief that it was no more on the land. We also reproduce the answers in cross-examination the defendant has reproduced (and relies on to argue that there was no such demolition), that speak for themselves:

(PW1):

Q. Now you will agree with me that the house in which you lived, that is, the plaintiff’s father’s house is still there is it not

That is so, it is still there.

Nobody has demolished any part of the structure

A. That is so, nobody has demolished or caused damage to any part of that house”

PW2 also had this to say during cross-examination:

“Q. In the course of time, did the defendant lay claim to the area where the structure is?

A. My Lord, he brought people to demolish the wooding [sic] structure on the said land”

Although the plaintiff testified that the defendant’s entry onto the disputed land was accompanied by the destruction of property in the sum of GH¢3000, she did not claim the said sum as special damages, nor did she plead same, an allegation she would have had to plead see: Mahtani v Daswani (1942) 8 WACA 216, and prove by cogent including the documentary evidence of receipts, see Norgbey and Anor. v Asante and Anor. [1992] 1GLR 506.

The learned trial judge however awarded the plaintiff the full sum of the alleged cost of destruction, as general damages. Although unproven, the said award was not erroneous, for evidence of actual loss is allowed in the consideration of the award of general damages, see: Royal Dutch Airlines (KLM) and Anor. v. Farmex Ltd [1989-90] 2 GLR 623. We therefore find no error in the said award of GH¢3000 general damages.

We are satisfied that the judgment of the court below, although scant, and without any exhibition of industry or resourcefulness, is nevertheless, supportable from the evidence. We therefore have no reason to disturb same.

We hold in consequence that the instant appeal is without merit.

It is accordingly dismissed.

Costs of GH¢3,000.00 to the plaintiff.