SOCIAL SECURITY & NATIONAL INSURANCE TRUST (SSNIT) vs ABOTARE YE CHOP BAR, KUMASI
  • IN THE SUPERIOR COURT OF JUDICATURE
    IN THE COURT OF APPEAL (CIVIL DIVISION)
    KUMASI - A.D 2018
SOCIAL SECURITY AND NATIONAL INSURANCE TRUST (SSNIT) - (Plaintiff/Appellant)
ABOTARE YE CHOP BAR, KUMASI - (Defendant/Respondent)

DATE:  22ND JANUARY, 2018
SUIT NO:  H1/10/2013
JUDGES:  ADUAMA OSEI JA (PRESIDING), DZAMEFE JA, WELBOURNE (MRS) JA
LAWYERS:  BAFFOUR AKOTO FOR PLAINTIFF/APPELLANT
NANA KWASI BOATEY, ANIS AWUAH DANSO AND AKUA AFRIYIE BOAKYEWAA WITH HIM FOR DEFENDANT/RESPONDENT
JUDGMENT

ADUAMA OSEI JA:

The suit which is the subject matter of this appeal, was initially instituted against “Abotare Ye Fitters Association Per its Chairman”, and “Unidentified Trespassers On Land”, as 1st and 2nd Defendants respectively. Subsequently, “Abotare Ye Chop Bar Proprietress” entered appearance as 2nd Defendant, and this was followed by the discontinuance of the action as against the 1st Defendant and the amendment of the writ of summons by substituting “Unidentified Trespassers On Land” with “Abotare Ye Chop Bar Proprietress”. The action in the court below was therefore between Social Security and National Insurance Trust as Plaintiff, and Abotare Ye Chop Bar Proprietress, as Defendant.

 

In this judgment, Social Security and National Insurance Trust is referred to as “the Appellant”, and Abotare Ye Chop Bar Proprietress is referred to as “the Respondent”.

 

In the statement of claim that accompanied its writ of summons, the Appellant asserted ownership of Property No. 103, situate at O.T.A. – Adum in Kumasi, which it claimed to have acquired from Universal Travel and Tourist Services (Ghana) Limited under a deed of assignment which, as it stated, had received the consent of the Lands Commission. The Appellant alleged that since it acquired the property, it had exercised ownership and proprietary rights over it and regularly paid ground rent on the same.

 

The indorsement on the writ of summons, as amended, described the property as “bounded on the East by the road leading to offices of Department of Urban Roads, on the West by an untarred road along Sunshine Commodities Limited’s building, on the South by the fence walls of Department of Urban Roads and KMA Waste Management Department and the said GNTC Warehouse”. And in the statement of claim, the Appellant complained that even though, for the purpose of executing its plan for the development of the land, it had made several demands for the persons occupying it to vacate same, those persons appeared reluctant to comply and it needed an order from the Court to compel their eviction.

 

On her part, the Respondent contended in her statement of defence that the land under her occupation did not form part of the land allegedly assigned to the Appellant. According to the Respondent, she had been in occupation and possession of the land, on which she had been operating a “chop bar”, long before the Appellant took its assignment. She alleged that even though the Appellant had been aware of her occupation of the land, the Appellant had never confronted her in respect thereof.

 

She contended that to the extent that the land under her occupation did not form part of the land assigned to the Appellant, she could not be considered a trespasser on the Appellant’s land and she described the Appellant’s action against her as frivolous, vexatious, and without any legal basis.

 

The issues set down for determination in the court below which concerned the Respondent were whether or not the Respondent’s land formed part of the Appellant’s land at O.T.A, Adum, and whether or not the Appellant was entitled to the reliefs it was seeking.

 

In its judgment delivered on the 15th of March, 2010, the trial Court determined that the area occupied by the Respondent did not form part of the Appellant’s land and it accordingly dismissed the action. This appeal has been filed because the Appellant is dissatisfied with the decision of the trial Court.

 

By its Notice of Appeal, the Appellant is praying this Court to set aside or reverse the decision of the trial Court and enter judgment in its favour, and the grounds on which it is seeking these reliefs are that:

“a) The judgment is against the weight of evidence adduced at the trial.

“b) The trial judge erred in concluding that the land occupied by the Plaintiff was a proposed land whilst ignoring the evidence to the contrary by the Town & Country Planning Department.

“c) The trial judge erred in accepting as facts the discredited evidence of the Surveyor.

“d) The trial judge erred in concluding that the Evidential burden was solely on the Plaintiff in the face of relevant recent case law”.

 

The judgment appealed against is at page 212 to page 238 of the Record of Appeal, and the Notice of Appeal is at pages 239 and 240 of the same Record. In his filed submissions, Counsel for the Appellant argued grounds (a), (b) and (c) together and dealt with ground (d) separately.

 

In arguing grounds (a), (b) and (c), Counsel submitted that in arriving at its decision, the trial Court failed to consider certain pieces of evidence which could have influenced it against ruling in favour of the Respondent. Counsel contended, for instance, that in spite of the trial Court’s finding to the contrary effect, nowhere during the trial had the Appellant implied that its deed of assignment was submitted at the Asantehene’s Secretariat or some state institution for the land assigned to it to be extended. Counsel considered that the trial Court made no attempt to evaluate the evidence on record but chose to rely on assertions made by the Respondent’s Counsel in his address as if they were evidence adduced before the trial Court. He submitted that it is only evidence adduced by parties through their respective witnesses and exhibits tendered that could legitimately be evaluated for the purpose of determining the issues before the Court; Counsel’s submissions could not be so used.

 

Another criticism made by Counsel for the Appellant against the trial Court’s evaluation of the evidence was in respect of the making of the Appellant’s second site plan. According to Counsel, the trial Court failed to evaluate the evidence adduced by the Appellant as to how that site plan was made by the Survey Department but chose to adopt wholeheartedly conjectures made by Counsel for the Respondent to the effect that the deed of assignment did not assign all the land in dispute to the Appellant, but only a part thereof. Counsel also observed that, even though the Survey Department did not indicate that it was giving the Appellant more land than was assigned to it, the trial Court erroneously concluded that it had done so per Exhibit E.

 

Counsel also considered wrong the trial Court’s acceptance of the evidence of CW1 and the comments of the Respondent’s Counsel thereon that the Survey Department gave more land to the Appellant than was assigned to it. In sum, Counsel contended that if the trial Court had considered all the evidence on record, it would not have arrived at the view it held. Counsel noted that the case of the Respondent seemed to be that the area occupied by her was outside the land granted to the Appellant. If that was the case, Counsel argued, then she bore the burden to produce evidence to that effect. The Respondent however failed to lead evidence and yet the trial Court ruled in her favour.

 

Under ground (d), the Appellant’s contention was that the trial Court erred in concluding that the evidential burden was solely on the Appellant. Arguing in support of this contention, Counsel for the Appellant submitted that the Appellant had, at least, put up a prima facie case regarding its title to the disputed land. This placed on the Respondent the burden to rebut the evidence led by the Appellant. The Respondent however neglected to mount the witness box to give evidence and also failed to tender any document in support of her case. With the Appellant having established a prima facie case, the trial Court was wrong when it found nothing wrong with the Respondent’s failure to give evidence. This was especially so, Counsel emphasised, when the case of the Respondent was that she was not on the Appellant’s land but was on a proposed road.

 

In the face of all the above, the decision of the trial Court cannot stand and the same ought to be reversed.

 

Responding to the submissions made on behalf of the Appellant, Counsel for the Respondent disagreed that the trial Court misdirected itself when it held that the Appellant had failed to establish its claim to the disputed land. In the view of Counsel for the Respondent, the central issue in the case is whether or not the land in dispute which is in the possession of the Respondent is covered by the deed of assignment engrossed in favour of the Appellant in April, 1998 and the site plan contained therein. In the view of Counsel for the Respondent, from a careful study of the composite plan, the particular land in the possession of the Respondent is not covered by the deed of assignment the Appellant acquired in1998. Counsel contended that despite the fact that by Exhibit A the Appellant had title to a parcel of land in the OTA area, that title did not cover the land in dispute.

 

Counsel contended that it was not enough for the Appellant to establish its root of title and boundary area under its deed of assignment. The Appellant also needed to establish either that the land described by the site plan in its deed of assignment covered the particular land in dispute, or that subsequent to the deed of assignment, the Appellant had acquired title to the land in dispute from the rightful owners. In the view of Counsel, neither of these was established by the Appellant. The Appellant therefore did not positively establish title to the particular land in dispute.

 

Counsel for the Respondent rejected the submission made on behalf of the Appellant that the trial Court found that Exhibit D gave the Appellant more land than was assigned to it by its assignment even though Exhibit D, did not so indicate. Counsel noted that Exhibit D was prepared on the instructions of the Appellant without the Surveyor having the advantage of using Exhibit B, which was the site plan attached to the deed of assignment. Counsel contended that a careful study of Exhibits B and D would reveal that in preparing Exhibit D, the drawing was extended to cover the proposed road where the Respondent is located and which is not part of Exhibit B. In the view of Counsel, this constitutes an expansion of the Appellant’s land and this is the finding the trial Court made.

 

Counsel for the Respondent also rejected the contention made on behalf of the Appellant that the trial Court adopted conjectures made by the Respondent’s Counsel that the deed of assignment in favour of the Appellant did not assign all the land in dispute to the Appellant but only part thereof. In the view of Counsel, in arriving at this conclusion, the trial Court was not adopting conjectures but was applying the law.

 

Counsel also disagreed with the Appellant that the trial Court was wrong in deciding that the Respondent’s case was based on her long possession. Counsel referred to paragraph 7 of the amended statement of defence where the Respondent had pleaded that she had been in occupation of the area under her possession long before the Appellant took its assignment. Counsel noted that this allegation was not denied by the Appellant and was therefore deemed to have been admitted. Counsel submitted that possession is prima facie evidence of the right to possession and it being good against the whole world except the true owner, the trial Court did not decide wrongly when it observed that the Respondent’s claim was based on her long possession.

 

Also, it was the contention of the Appellant underground (d) that the trial Court erred in concluding that the evidential burden was solely on the Appellant. Counsel for the Respondent however disagreed with this and contended that in the judgment appealed from, the trial Court accorded due respect to the legal position that the burden of producing evidence in any given case was not fixed and that it shifted from party to party at various stages of the trial, depending on the assertions and or the denials made. Counsel argued that in the present case, the burden of proof did not shift from the Appellant unto the Respondent, not because the trial Court held the Appellant to bear the evidential burden solely, but because the Appellant never discharged the burden to prove its title to the land in dispute.

 

Counsel concluded his response to the Appellant’s submissions by inviting this Court to dismiss the appeal and affirm the judgment of the trial Court.

 

After a careful reading of the grounds of appeal herein and the submissions filed against and in support of the judgment of the trial Court, it is clear to me that the matter we are called upon to resolve in this appeal is whether the evidence on record justifies the dismissal of the Appellant’s action by the trial Court.

 

The principle is well settled that in law, the burden of proof always lies upon the party who would lose if no evidence is led in the case, and that where some evidence has been led, it lies upon the party who would lose if no further evidence was led. (See Wakelin Vs. London and South Western Railway Co. (1886) 56 L.J. QB 229, H.L.; Jefferson Vs. Paskell [1916] 1 K.B. 57, C.A.; and Abrath Vs. North Eastern Railway Co. (1883) 11 Q.B.D. 440, C.A.). What this means is that the burden may not remain with one party throughout the trial but may shift from party to party according to issues that emerge in the course of proceedings.

 

Before the trial Court, in the present case, the Appellant sought a declaration of title to and recovery of vacant possession of the disputed land. In the trial Court therefore, the Appellant bore the burden to establish its title to the disputed land, and in my view, the same standard of proof would be required of it as Francois J.S.C. required of the plaintiff in Akoto II & Others Vs. Kavege and Others [1984-8] 2 G.L.R 365. In the Akoto case, Francois J.S.C. recounted the shortcomings in the evidence adduced by the plaintiffs in the following words:

The suit being one for a declaration of title, the plaintiffs have an onerous burden to discharge. This is trite law and would have necessitated no further comment but for the procedure adopted. No root of title was disclosed. Neither the tradition of acquisition of an inherited estate nor the incidents of purchase, if acquired by sale, were divulged. No clear and positive acts of unchallenged sustained possession or of substantial user emerged from the evidence”.

 

The case of Mondial Veneer (Gh) Limited Vs. Amuah Gyebu XV [2011] 1 SCGLR 466 (475), per Georgina Wood C.J, also requires of a person asserting title to land and on whom the burden of persuasion falls, that he proves “the root of title, mode of acquisition and various acts of possession exercised over the subject-matter of litigation”. It is emphasised in that case that it “is only where the party has succeeded in establishing these facts on the balance of probabilities, that the party would be entitled to the claim”.

 

I think the foregoing should provide useful guidance as I assess the evidence on record to resolve the issue whether the record justifies the dismissal of the Appellant’s action by the trial Court. As we recall, the land claimed by the Appellant before the trial Court is situate at O.T.A., Adum in Kumasi, and was described in the writ, as amended, as Plot No. 103

“bounded on the East by the road leading to offices of Department of Urban Roads, on the West by an untarred road along Sunshine Commodities Limited’s building, on the South by the fence walls of Department of Urban Roads and KMA Waste Management Department and the said GNTC Warehouse”. In the statement of claim, the land was alleged to have been acquired from Universal Travel and Tourist Services (Ghana) Limited under a deed of assignment which had received the consent of the Lands Commission.

 

As part of its efforts to establish its claim to ownership of the disputed land, the Appellant tendered the deed of assignment executed between it and Universal Travel and Tourist Services through its Projects Draftsman, Paul Oppong Mensah. The deed of assignment was received in evidence as Exhibit A.

 

In his testimony, Paul Oppong Mensah told the trial Court that in 2003, he was in Kumasi as the officer in charge of the Appellant’s housing projects. He said in that year, his head of department came from Accra to Kumasi and told him that the Appellant had acquired Plot No. 103, OTA, Adum. He said he went to the land together with the head of department and inspected it and that since that time, he had considered the land as part of the properties of the Appellant in the Ashanti Region.

 

Paul Oppong Mensah testified further that about a year after he had been shown Plot No. 103 as part of the properties of the Appellant in the Ashanti Region, he was instructed by his head of department to request the Regional Survey Department to demarcate the land so that the Appellant would know its true boundaries. He said he acted as instructed by his head of department and, for the purpose of the demarcation, gave the Survey Department a copy of the site plan contained in Exhibit A. He tendered a copy of that site plan as Exhibit B.

 

The witness told the trial Court that before the demarcation was done, he inspected the land together with a representative of the Survey Department and the Survey Department advised that the site plan did not conform to the lay-out of the place which was current at the time of the inspection. He said what the Survey Department considered necessary in the circumstance was a survey of the land to take all the necessary measurements so that another site plan would be produced for the Appellant. He said he gave the Survey Department the go-ahead to undertake the survey and produce another site plan and the outcome of the work of the Survey Department was a site plan, which was tendered in evidence as Exhibit D.

 

According to the witness, in undertaking the Survey, the Survey Department fixed boundary pillars along the edges of the plot and that exercise showed that the Respondent’s structures (that is, the Abotare Ye Chop Bar) were inside the plot. He said when the Survey Department undertook the survey, they did not advise the Appellant about any proposed road and the site plan they produced, Exhibit D, also did not show a proposed road passing through that portion of the land.

 

Now, before the trial started, the trial Court had deemed it necessary to order the preparation of a composite plan by the Regional Survey Department in respect of the disputed area, and the composite plan ordered was filed in Court on 22nd October, 2007, together with a report dated 10th October, 2007.

 

Christopher Augustine Mensah was the official of the Regional Survey Department who testified in respect of the report and the composite plan. He testified as CW 1, and he described himself as a Principal Surveying Technician. He said he was the leader of the team that undertook the survey of the area and he told the Court that in preparing the composite plan, they used the site plans provided by the parties. He confirmed that they inspected and surveyed the area before they prepared the composite plan.

 

On the composite plan, Augustine Mensah identified the cadastral plan prepared by the Appellant in respect of the area as shown green. This would be Exhibit D, tendered by Paul Oppong Mensah. He also identified the Lands Department plan used for the Appellant’s documents as edged yellow. He said the Lands Department plan, edged yellow, was Plot No. 103, O.T.A. , Adum. He said from his observation and the Lands Department plan used for the Appellant’s documents, the area claimed by the Respondent was a proposed road and did not fall within Plot No. 103, O.T.A. Adum.

 

Testifying further about the proposed road, Augustine Mensah said, from the site plan used in preparing the documents for the original owners of the land in 1915, there was a proposed road around the site and after the proposed road, there was a wall for GNTC and KMA Sanitation. He said the proposed road was not constructed and with the wall constructed by KMA, it appeared on the ground as if the area for the proposed road was one with the area granted to the initial owners of the land. He said however that from the documents, the proposed road was not part of the land granted to the original owners of Plot No. 103, O.T.A., Adum.

 

During his cross-examination by Counsel for the Appellant, Augustine Mensah insisted that the area identified as belonging to the Respondent conformed with the proposed road. He said because the road was not constructed, the area proposed for it was blocked at the western corner by Urban Roads. He said it was from the site plan provided by the Appellant for the survey work that he got to know about the existence of the proposed road.

 

During cross-examination by Counsel for the Respondent, Augustine Mensah confirmed that for the survey exercise, he was requested in the Respondent’s Survey Instructions to have recourse to a lease dated 15th September, 1916 from the Government to Thompson Meab and Galloway for a term of 99 years. He also confirmed that in the Respondent’s survey instructions he was required to have recourse to an assignment dated 14th April, 1999 between Universal Travel and Tourist Services Limited and Social Security and National Insurance Trust and to delineate the features of the plot of land in the assignment and to prepare a composite plan based on the site plans in the two title documents. He confirmed that he followed the instructions given him by the Respondent and observed that the same original Lands Department plan had been used in both the 1916 and 1999 transactions. He confirmed that from the work he did, the area of the proposed road is where the “Abotare Ye Chop Bar” is located and the area did not form part of the site plan the Appellant attached to its assignment.

 

Following a question posed by the Court regarding his observation that the land claimed by the Respondent is the proposed road bordering the north of Plot 103, O.T.A, and that the Appellant’s cadastral plan coincided with the proposed road to join the fence walls of the former GNTC and KMA Sanitation Department, he explained that the cadastral plan on which that observation was based was made quite recently and was different from the site plan in the Appellant’s document. He said by the recently made cadastral plan, the Appellant had added the proposed road to the land shown in the site plan contained in the original document.

 

Now, it is clear from the record that the land in contention in this suit is the area occupied by the Respondent. In her statement of defence, the Respondent does not dispute the grant of Exhibit A to the Appellant, and this means that she does not dispute the Appellant’s ownership of the land granted by Exhibit A and shown on the site plan in that document.

 

The Respondent’s contention is that the area occupied by her does not fall within the land which the Appellant acquired by Exhibit A and therefore that the Appellant cannot rely on Exhibit A to establish its claim of title to the land occupied by her.

 

This being the case, what the Appellant needs to establish in order to succeed in its action for declaration of title against the Respondent is not merely a good root of title in respect some land in the area, or evidence of purchase or of possession of such land, but a good root of title or evidence of purchase or of possession in respect of the particular land occupied by the Respondent. As Her Ladyship Georgina Wood CJ emphasised in the case of Mondial Veneer (Gh) Limited Vs. Amuah Gyebu XV (supra), it is only where the party asserting title, in this case the Appellant, has succeeded in establishing the facts as to the root of title, mode of acquisition and acts of possession exercised over the subject matter of litigation on the balance of probabilities that that party would be entitled to the claim.

 

Now, in the present case, regarding the particular land occupied by the Respondent, while Paul Oppong Mensah has contended in his evidence on behalf of the Appellant that it falls within the land acquired by the Appellant by Exhibit A, the Court Surveyor, Augustine Mensah, has testified that from his own observation and from the plan used for the Appellant’s documents (that is, the plan contained in Exhibit A), the area claimed by the Respondent was a proposed road and did not fall within Plot No. 103, OTA, Adum. The question therefore is, from analyses of other evidence on record, which of the two positions, on a balance of the probabilities, is more likely to be correct? Does the particular land occupied by the Respondent fall within or outside the land acquired by Exhibit A?

 

In my view, from the evidence on record, the balance of the probabilities tilts in favour of the position held by Court appointed Surveyor, Augustine Mensah, which means that the area claimed by the Respondent was a proposed road and did not fall within the area assigned to the Appellant by Exhibit A. Exhibit A describes the subject matter of the assignment as “a parcel of land known as Plot No. 103 in the Old Town Section “A” Layout of Kumasi”. The site plan in the document bears the heading, “Kumasi-Old Town Section A Portion of Plot No. 103 For Universal Travel & Tourist Service Gh. Ltd”, and it shows the land as surrounded by proposed roads. There is one on its north-eastern part, another on its eastern part, another on its southern part, and another on its south-western part. The area covered by this land is 3.93 acres. According to the site plan in Exhibit A, therefore, the area granted to the Appellant under the assignment is approximately 3.93 acres.

 

As we recall, Paul Oppong Mensah confirmed in his testimony that the land the Appellant acquired from its Assignor was as captured in Exhibit A. But he also told the trial Court that after the acquisition, to enable them know the true boundaries of the land they had acquired, they instructed the Regional Survey Department to demarcate the land for them and the Regional Survey Department advised them that the site plan in Exhibit A did not conform to the layout for the area current at the time and that it was necessary for certain measurements to be taken to facilitate the production of another site plan. That other site plan is Exhibit D and the area shown on it as representing the Appellant’s land is the area edged green on the composite plan prepared by the Court appointed Surveyor. According to the composite plan, the area edged green is the area the Appellant showed to the Court appointed Surveyor as the Appellant’s land.

 

But in my view, since the Appellant’s witness acknowledges that the land acquired by the Appellant was as captured in Exhibit A, and since Exhibit D was made after Exhibit A had been executed, for the land in Exhibit D to be accepted as truly representing the land which the Appellant acquired from its assignor, whatever method and whatever device may have been used in producing it, Exhibit D must show the same land as is captured in Exhibit A. The land shown on Exhibit D cannot be a reliable representation of the land acquired by Exhibit A if it turns out in material respects, to be different from the land shown on the site plan in Exhibit A.

 

Now a scrutiny of the land shown on Exhibit D in relation to the land shown on the site plan in Exhibit A leaves no doubt that there are material differences in the lands they represent. While the land in Exhibit A shows a proposed road on its north-eastern part, there is neither a proposed road nor an existing road on the north-eastern part of the land shown on Exhibit D. If the proposal to construct a road on that side of the land, as shown in the site plan in Exhibit A, was for one reason or the other abandoned, what happened to the space intended for the road? The space intended for the road was not part of the land assigned to the Appellant in 1999 by Exhibit A; so what happened to that space? The answer is given by the composite plan prepared by the Court appointed Surveyor. The plan shows that the area proposed in the site plan in Exhibit A for a road, became part of the land claimed by the Appellant on the strength of Exhibit D. And the Appellant claimed that area as its land in spite of Exhibit A, and without providing any evidence that satisfactorily explained that claim.

 

Also, while the land in Exhibit A shows that the land assigned to the Appellant by the said document covered an approximate area of 3.93 acres, the land shown on Exhibit D shows that the land which the Appellant is claiming by that exhibit covers an approximate area of 4.17 acres. This is an indication that the land the Appellant acquired by Exhibit A did, after the preparation of Exhibit D, become larger by 0.24 acre. This confirms the swallowing up of the space for the proposed road by the Appellant; and, again, there is no evidence on record that justifies this expansion and swallowing up.

 

In these circumstances, in my view, the land shown on Exhibit D cannot be a reliable representation of the land acquired by the Appellant by Exhibit A. Exhibit A must speak for itself as to the acquisition it gave effect to. Indeed, in his testimony before the trial Court on the 31st of March, 2008, Paul Oppong Mensah tendered Exhibit A as the document evidencing the Appellant’s ownership of the land in dispute. Exhibit A, however, is the very document that brings the Appellant’s claim against the Respondent to its knees.

 

As shown on the composite plan prepared by the Court appointed Surveyor, the area claimed by the Respondent is the area shown in the site plan in Exhibit A as proposed for a road. That is the area where the Respondent’s kiosk is located, and that is the particular land in dispute in this case. In paragraph 7 of her amended statement of defence, the Respondent alleged that she had been in occupation of that land long before the Appellant acquired the land assigned to it under Exhibit A. And we note that during his cross-examination, the Appellant’s representative, Paul Oppong Mensah, confirmed that until the institution of the present suit, the Appellant never challenged the Respondent’s occupation and possession of the particular land in dispute.

 

If therefore, in order to succeed in its claim for declaration of title against the Respondent, the Appellant needs to produce evidence of its root of title, or evidence of acquisition or evidence of acts of possession, such evidence must not be in respect of just any parcel of land; it must also be in respect of the area proposed for a road on the site plan in Exhibit A.

 

A reading of Exhibit A reveals a recital of several transactions affecting the subject matter of the assignment made by that document. In my view, the transactions recited establish a good root of title to the subject matter of the assignment. The document also establishes acquisition of the subject matter of the assignment by the Appellant. But as far as the particular land in dispute herein, that is the area of the proposed road, is concerned, there is absolutely no evidence as to the Appellant’s root of title or of its mode of acquisition or of acts of possession or of ownership. In this circumstance, the cases of Akoto II & Others Vs. Kavege and Others (supra) and Mondial Veneer (Gh) Limited Vs. Amuah Gyebu XV (supra) tell us that the Appellant’s claim cannot succeed.

 

The confusion surrounding the boundaries of the land in respect of which the Appellant was seeking a declaration of title before the trial Court provides another justification for the dismissal of the Appellant’s claims. It is noted that by the amended writ of summons, the land claimed by the Appellant is bounded on the East by “the road leading to the offices of the Department of Urban Roads, on the West by an untarred road along Sunshine Commodities Ltd’s Building, on the South by fence walls of Department of Urban Roads and KMA Waste Management Department and the said GNTC Warehouse”. In support of this claim, as has been observed above, the Appellant tendered Exhibits A and B which indicate boundary features different from what was indorsed on the writ of summons, and Exhibit D, which also indicates boundary features different from what was indorsed on the writ of summons.

 

By Exhibit D, the Appellant claimed land which has KMA Sanitation Department lying, not on the South, but on the North and also has the Department of Urban Roads located in the north-west corner, and not on the East as indorsed on the amended writ of summons. What the Appellant’s representative at the trial, Paul Oppong Mensah, added to the Appellant;s efforts to identify the land claimed by it was simply to tell the trial Court that the Appellant’s land is “bounded by three untarred roads and a fence wall of the former GNTC and KMA Sanitation Department and the Department of Urban Roads”. During his cross-examination, it was suggested to Paul Oppong Mensah that the description of the boundary he gave was not the true boundary of the Appellant’s property but he insisted he had given the true boundary.

 

With this confusion regarding the boundaries of the land in respect of which it was seeking a declaration of title, was the Appellant entitled to that relief? We know from the case of Anane Vs. Donkor [1965] GLR 188 that “a claim for declaration of title or an order for injunction must always fail if the plaintiff fails to establish positively the identity of the land to which he claims with the land the subject matter of the claim”. In the present suit, the trial Court did not make the failure of the Appellant to establish the identity of the land claimed by it the basis of the dismissal of the Appellant’s action. It is clear to me however, that with the confused evidence the Appellant produced regarding the identity of the land it claimed ownership of, its action for declaration of title could not have been successful.

 

Under ground (d) of the appeal, Counsel for the Appellant criticised the trial Court for assessing the evidence as if the evidential burden was solely on the Appellant. Counsel considered that the Appellant had put up a prima facie case regarding title to the disputed land and that this placed the burden on the Respondent to rebut the evidence led by the Appellant. Counsel understood the case of the Respondent to be that she was not on the Appellant’s land and Counsel considered that with this position, the Respondent assumed the burden to establish that she was indeed not on the Appellant’s land.

 

It has been acknowledged above that the burden of proof may not remain with one party throughout a trial but may shift from party to party according to the issues that may emerge in the course of proceedings. This does not however mean that in all cases, the burden of proof must be shifting continually. Indeed, in the case of Jass Co. Ltd. Vs. Appau [2009] SCGLR 265 (270), the Supreme Court underscored, per Dotse JSC, that the burden of proof is always on the plaintiff to satisfy the court on a balance of probabilities. This is especially so in a situation where the defendant has not counterclaimed and the plaintiff has not been able to make out a sufficient case against the defendant. In such a situation, the plaintiff’s claims would be dismissed. The failure of the trial Court to shift the evidential burden from the Appellant to the Respondent in the course of proceedings in the present case does not, therefore, necessarily count as a shortcoming in the proceedings.

 

Whether it does or not depends on the issue or issues prevailing in the case. And we may be reminded that before the trial Court in the present case, among the issues for determination, those that concerned the Respondent were whether or not the Respondent’s land formed part of the Appellant’s land at O.T.A, Adum, and whether or not the Appellant was entitled to its reliefs against the Respondent. There is no doubt that the Appellant bore the burden of proof on both issues since it stood to lose its claims against the Respondent if no evidence were led in the case. The Appellant could expect the burden to shift from itself to the Respondent only where it led such evidence regarding its title to the land in dispute as to place the Respondent in danger of losing the case unless she produced evidence in rebuttal. And did the Appellant lead such evidence?

 

In his criticism of the judgment of the trial Court, Counsel for the Appellant contended that the Appellant had put up a prima facie case regarding title to the disputed land and that this placed the burden on the Respondent to rebut the evidence led by the Appellant. It is my view however, as has been demonstrated above, that the record does not support the claim by Counsel that the Appellant had put up a prima facie case regarding title to the disputed land. As has been observed above, as far as the particular land in dispute herein is concerned, there is absolutely no evidence on record that supports the Appellant’s claim to title. It cannot therefore be said in the present case that the Respondent was, by evidence produced by the Appellant, placed in a situation where she had to lead evidence or lose the case.

 

In his written submission, Counsel for the Appellant draws attention to the fact that the courts have drifted away from the Kodlinye principle that a plaintiff must rely on the strength of his own case and not rely on the weakness of the defendant’s case. Counsel gives the impression in the submission filed that by this development, in all situations, weaknesses in the case of a defendant should count in determining the success or failure of the plaintiff’s case. A reading of cases like Odametey Vs. Clocuh [1989-90] GLR 14 and Asante-Appiah Vs. Amponsa [2009] SCGLR 90, however, will show that this is not so. In Odametey Vs. Clocuh, Taylor JSC was emphatic that where the plaintiff in a civil suit had failed to make a case for the claim for which he sought relief, he could not rely on the weakness in the defendant’s case. It was when the plaintiff had made a case which would entitle him to relief if the defendant offered no evidence that he could draw strength from weaknesses in the case of the defendant. In the Asante-Appiah case, Brobbey, JSC explained that a plaintiff could rely on weaknesses in the case of the defendant only when the plaintiff had already established his title and had thereafter proceeded to rely on the weaknesses in the case of the defendant to buttress his case. The new position could not be invoked and applied, as Brobbey JSC underscored, in lieu of the necessity to prove one’s case.

 

Having held in the present case that as far as the particular land in dispute is concerned there is absolutely no evidence on record that supports the Appellant’s claim to title, this Court does not consider the drift from the Kodlinye principle a relevant factor in the determination of this appeal.

 

It is a striking feature of the submissions filed on behalf of the Appellant that Counsel picks up statements or observations made here and there in the judgment of the trial Court for criticism. I have considered the criticisms in the light of the record and I do not find the matters criticised occasioning any injustice in the sense of leading the trial Court to a wrong conclusion in the matter. After it had reviewed the evidence before it, the conclusion the trial Court came to was that the Appellant failed to establish its ownership of the land the Respondent is in occupation of. It is the same conclusion I have come to after my review of the record and I find no cause to reverse the decision of the trial Court.

 

The views I have expressed above are an indication that none of the grounds of appeal filed by the Appellant finds favour with this Court. We find no merit in this appeal and the same is hereby dismissed.

 

K. N. ADUAMA OSEI

[JUSTICE OF APPEAL]

{PRESIDING}

 

 

I AGREE                                                                SENYO DZAMEFE

      [JUSTICE OF APPEAL]

 

I ALSO AGREE                                           MARGARET WELBOURNE (MRS.)

[JUSTICE OF APPEAL]