WELBOURNE (MRS), J.A.

The Appellant’s appeal is against the judgment of the Circuit Court dated 15^th February, 2013.

Brief facts

The Plaintiff issued a Writ of Summons claiming against the Defendant as follows:

A declaration of title to all that land situate lying and being at Oyarifa near Accra measuring in extent appropriately forty acres hemmed in on all sides by the Oyarifa town measuring on the northern boundary 1020 feet more or less on the eastern, boundary 162 feet more or less on the western boundary 1790 feet more or less and on the southern boundary 977 feet more or less and more particularly delineated on the Site Plan attached to a Deed of Purchase dated 4^th September, 1874 made between the chief of Oyarifa at the time Mensa Pentamako and the Basel Missionary society, predecessors in the title of the Presbyterian Church of Ghana.

An order for recovery of possession of two plots of Plaintiff’s land encroached upon by the Defendant.

An order for perpetual injunction restraining Defendant his assigns and agents from challenging Plaintiff’s title to the land in dispute.

General damages for trespass.

The Defendants on the other hand filed his defence and counterclaim as follows:

A declaration to title to ALL THAT PIECE OR PARCEL OF LAND situate and lying and being at Oyarifa, Accra and bound by the lessors land measuring 312.3 feet more or less on the east by Presbyterian land measuring 102.3 feet more or less on the south by lessors land measuring 140.2 feet more or less on the west by lessors land measuring 1129.1 feet more or less and containing an approximate area of 2.64 acres.

An order of recovery of possession of the said land.

Damages for trespass.

Perpetual injunction restraining the Plaintiff, his assigns, privies, agents ,Church members or whomsoever authorise by the Plaintiff from dealing with the land, the subject matter of this suit.

The Plaintiff’s case

By their Statement of Claim, the Plaintiff stated that they are lawful owners of 40 acres parcel of land situate lying and being at Oyarifa near Accra. Plaintiff has built a Church on part of the land aforementioned and the Defendant has encroached on a portion of the said land and he is constructing a building on same.

The Plaintiff Church traces its root of title from land acquired by the Basel Mission in the year 1874 from one Mensa Pentamako. The said acquisition was founded on a Deed of Purchase executed between the said Mensa Pentamako chief of Oyarifa and the Basel Missionary society. The Deed was dated 4^th September,1874.the acquired land was transferred to the Scottish Mission, which in turn was transferred to the Presbyterian Church of the Gold Coast and then transferred again to the Presbyterian Church of Ghana. Plaintiff therefore claims as per the reliefs endorsed on the writ.

The Defendant’s case

The Defendants by his statement of defence specifically in paragraph 4 stated that the Plaintiff has gone beyond the boundaries of what was transferred to them by the Basel Mission and acquired from the chief Mensa Pentamako in the year 1874. It is the Defendants’ case that even a search at the Lands Commission indicated that the land the Plaintiff is now claiming does not belong to the Plaintiff. The Defendant further stated that Plaintiff has sold most of the land acquired to its members since 1995 and the land was not used for Mission work as intended. The Defendant’s claims that the land acquired by the Plaintiff belongs to the AGBAWE Kpobi We No. 2 family of Oyarifa. The Defendant’s great-grandfather is said to have cultivated economic trees as coconut trees, palm trees and mango trees, some of which survived the 1983 drought and are still on the land.

The trial court entered judgment in favour of the Plaintiff’s as follows:

1. Plaintiff is hereby granted title to all that (sic) situate lying and being at Oyarifa near Accra measuring in extent approximately 40 acres hemmed in on all sides by Oyarifa town and measuring on the northern boundary 1020 feet more or less on the eastern boundary 1626 more or less on the western boundary 1790 feet more or less on the southern boundary 977 feet more or less and more particularly lineated on the Site Plan attached in a Deed of Purchase dated 4/9/1874,where made between the chief of Oyarifa at the time Mensa Pentamako and the Basel Missionary Society, predecessors in title of the Presbyterian Church of Ghana.

2. Recovery of possession of two plots of Plaintiff’s land forming part of the land described above which has been encroached upon by the Defendant.

3. Defendant, his assigns, agents are hereby perpetually restrained from challenging Plaintiffs title to land in dispute.

4. GH¢400.00 damages against the Defendants.

5. Costs of GH¢200.00 in favour of the Plaintiff.

Aggrieved by the said judgment the Appellant has appealed on the following grounds:

i. The judgment was against the weight of evidence.

ii. The trial high court judge sitting as an additional circuit court judge erred in law in depending upon a Composite Plan prepared with three different Site Plans attached to the Plaintiff s Deed of Purchase dated 4^th September, 1874 and which Site Plans have serious legal defects, thus making them invalid for use in the preparation of the Composite Plan.

iii. The High court judge, sitting as an additional circuit court judge erred in construing that the transaction of lease executed in favour of the Defendant in respect of the land, the subject matter of this suit, and recorded at the Lands Commission was just plotting of the land and not an interest in land conveyed to the Defendant, notwithstanding the fact that the Plaintiff did not produce any evidence of the registration of its land.

iv. Additional grounds will be filed upon the receipt of the record of proceedings and the judgement of the court dated 15th February, 2013.

v. That pursuant to the leave of this court the Appellant amended its notice of appeal as follows:

a. The judgment was against the weight of evidence.

b. The trial High Court judge sitting as an additional Circuit Court judge erred in law in depending upon a Composite Plan prepared with three different Site Plans attached to the Plaintiffs Deed of Purchase dated 4^th September, 1874 and which Site Plans have serious legal defects, thus making them invalid for use in the preparation of the Composite Plan.

I shall commence with the first ground of appeal namely, that the judgment is against the weight of evidence.

The courts have stated in numerous cases such as Tuakwa v Bosom [2001-2002] SCGLR 61 @ 65; Dexter Johnson v The Republic [2010] SCGLR 601 and Oppong v Anarfi [2011] SCGLR 556 that an appeal is by way of re-hearing, particularly where the Appellant alleges as in the omnibus ground that the decision of the trial court is against the weight of evidence. In such a case it is incumbent on an appellate court such as this, in a civil case, to analyse the entire record of 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 preponderance of probabilities, that the conclusions of the trial judge are reasonably or amply supported by the evidence. In an action for declaration of title to land, recovery of possession and injunction, a Plaintiff must establish by positive evidence the identity and limits of the land he claims. (See Agyei Osae and ors v Adjeifio and ors [2007-2008] SCGLR 499)

The Appellant argues at page 3 of their written submission that “my lords, the trial judge failed to do a proper evaluation of the whole evidence, it must be mentioned that the Plaintiff/Respondent neither adduced any documentary evidence to the effect that the Basel Mission Society transferred the land to the Presbyterian Church of Gold Coast; the Plaintiff/Respondent did not also produce any evidence that the Presbyterian Church of Ghana got a transfer of land from the Presbyterian Church of the Gold Coast. It is to be noted that the Plaintiff/Respondent brought the action in the name of the Presbyterian Church of Ghana.”

“The non-production of the documentary evidence to show the various transfer of the land from the Basel Mission to the Presbyterian Church of Ghana, resulted in a situation where the trial court wrongly concluded that the land acquired by the Basel Missionary Society from the then chief of Oyarifa, Mensah Pentamako in 1874, is the same as the land Plaintiff/Respondent is occupying.’’

The Respondents argues that “’the court rightly relied on Section 129 of the Decree in support of her judgment.’’

The trial judge in addressing the issue on whether the Plaintiff is the lawful and bonafide owner of all that piece of land said at page 112 of the record that: ‘’the only witness of the Plaintiff, Andrews Anum Ofori, also a Surveyor, traced the root of the title from the Basel Mission who had Purchased the land from the then Oyarifa chief Mensa Pentamako. Witness tendered exhibit ‘A’, a copy of the transfer document with the Deed of Purchase attached. The Basel Mission then transferred it into the Scottish Mission; the Scottish Mission then transferred it to the Presbyterian Church of Gold Coast and later to the Presbyterian Church of Ghana. The crux of the evidence is that there is a recorded transaction between the Basel Mission and the chief”.

Counsel for the Appellant argued that the witness neither provided any documentary evidence that the Basel Mission transferred the land to the Scottish Missionary Society nor documentary evidence that the Presbyterian Church of Ghana got a transfer from the Presbyterian Church of Gold Coast.

The trial court further stated in response to the Defendant’s argument at page 113 of the record ‘’this court however takes judicial notice of the fact that the Presbyterian Church traces its history to the Basel Mission and the Scottish Mission and the fact that the document or evidence of the transfer is not available stems from the fact that these transfers were made many years ago. Besides it is general knowledge that the Presbyterian Church takes its root from the Basel and Scottish Mission. The fact that no document of transfer could not be tendered in this Court will not be the basis for not granting the claims of the Plaintiff.’’

Could the trial judge take judicial notice of the above facts in the instant case?

The law on judicial notice as stipulated in Section 9 of the Evidence Act NRCD 323 provides that:

(1) This Section governs the taking of judicial notice of facts in issue or facts which are relevant to facts in issue.

(2) Judicial notice can be taken only of facts which are either:

(a) So generally known within the territorial jurisdiction of the court, or

(b) So capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned, that the fact is not subject to reasonable dispute.

(3) Judicial notice may be taken whether requested or not.

(4) Judicial notice shall be taken if requested by a party and the requesting party:

(a) Gives each adverse party fair notice of the request, through the pleadings or otherwise, and

(b) Supplies the necessary sources and information to the court.

(5) A party shall be entitled upon timely request to an opportunity to present to the court information relevant to the propriety of taking judicial notice and the meaning of the fact to be noticed.

(6) Judicial notice may be taken at any stage of the action.

In R v Mensah and others [1979] GLR 525 @ holding 3 the court per Cecilia Koranteng-Addo J stated inter alia as follows;

“Judicial notice referred to facts which a judge could be called upon to receive and act upon either from his general knowledge of them or from inquiries to be made by himself for his own information from sources to which it was proper for him to refer. To take judicial notice of a fact, however the judge had to be convinced that the matter was so notorious as not to be the subject of dispute among reasonable men, or that the matter was capable of immediate accurate demonstration by readily accessible source of indisputable accuracy.”

The learned author Maxwell Opoku Agyeman in his book, Law of Evidence in Ghana at page 106 defines judicial notice as ‘’ it simply means recognition without proof of something as existing or being true. Further, judicial notice is said to be based upon very obvious reasons of convenience and expediency, and the wisdom of dispensing with proof of matters within the common knowledge of everyone has never been questioned.’’

The learned author cited the case of Commonwealth Shipping Representative v P & O Branch Services [1923] AC 191 at 212, while the Lord Sumner stated that “judicial notice refers to the facts which a judge

can be called upon to receive and act upon either from his general knowledge of them or from enquiries to be made by himself or from his own information, from sources to which it is proper for him to refer’’.

The judicial notice can only be taken only of facts, which are either so generally known within the territorial jurisdiction of the court or so capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned that the fact is not subject to reasonable dispute.

It seems to me that the argument of the Appellant that the non-production of the documentary evidence to show the various transfers of the land from the Basel Mission to the Presbyterian Church resulted in a situation where the trial judge wrongly concluded that the land acquired by the Basel Missionary Society from the then chief of Oyarifa in 1874 is the same as the land the Plaintiff/Respondent is occupying is flawed.

The trial judge was right in taking judicial notice of these transfers since it’s a common knowledge that the Presbyterian Church derives its root from the Basel Mission. As stated by Sarwar Ali in

Fatehchand [1977] AIR 1825 SC an Indian case that “judges cannot and do not act within ‘ivory towers’ not to take notice of matters which are notorious is to shut one’s eyes in the face of reality’’.

The trial judge relied on Section 129 of the Evidence Act, NRCD 323 which states ‘’ evidence of reputation in a community given by a person with personal knowledge of the reputation is not made inadmissible by Section 117 if (a) the reputation concerns boundaries of or custom affecting land in the community and the reputation arose before the controversy concerning the boundary or custom’’.

Exhibit ‘A’ is the Deed of Purchase of the land between the Basel Mission and the then chief of Oyarifa Mensa Pentamako. The trial judge at page 119 of the record stated that ‘’even if there is no document indicating that the Basel Mission transferred the land in dispute to the Presbyterian Church of Gold Coast and to the Presbyterian Church of Ghana, it is still the case that the land has been Purchased by the Basel Mission as far back as 1874 so the Defendants could not have had a transfer of the same land from the Agbawe Kpobi No. 2 Family.’’

In addition, a search conducted at the Lands Commission indicated that the Presbyterian Church has a recorded transaction before the Defendant’s conveyance or transfer as stated at page 119 of the record.

The court held in Ahiabley v Dorgah (1984-86) 2 GLR 537 C.A., ‘’where documents support one party’s case as against the other, the court should consider whether the latter party was untruthful or truthful but with faulty recollection.’’

In the instant case the trial Judge was right in taking judicial notice and also documents presented supports the case of the Respondents that the evidence on record was rightly evaluated by the trial judge. That ground therefore is dismissed.

GROUND 2

The trial judge erred in law in depending upon a Composite Plan prepared with three (3) different Site Plans attached to the Plaintiff’s Deed of Purchase dated 4^th September, 1874, and which Site Plan have serious legal defects thus making them invalid for use in preparation of Composite Plan.

The error of law alleged in the ground of appeal has been particularised as follows:

a. That the learned trial judge failed to properly evaluate the effect of the Site Plan relied on by the Plaintiff/Respondent which lacked validity for want of the signature of a licensed Surveyor as required by Section 6(1) and (2) of Act 127, the Survey Act, 1962.

b. The learned trial judge failed to properly evaluate and appreciate the effect of the Plaintiff/Respondent’s Site Plan which was not counter-signed by the Director of Survey as required by Regulation 4(2) of the Survey (Supervision and Approval of Plans) Regulations, 1989, LI 1444.

The Appellant argued that the trial judge failed to properly evaluate the effect of the Site Plan relied on by the Respondent which lacked validity for want of the signature of a licensed Surveyor as required by Section 6(1) and (2) of Act 127, the Survey Act, 1962.

We examined the evidence as given by the Surveyor and these indicate that two Site Plans on the part of Respondent were said to have been used in the preparation of the Composite Plan, plus the Site Plan of the Appellant. The issue of the said two Site Plans for the Respondent came to the fore when the Surveyor (court witness) was cross examined by counsel for the Appellant (see pages 41 to 44 of the record of appeal). The explanation for the two Site Plans was that one was the Site Plan attached to the Deed of Purchase of 1874 did not have a signature nor a Surveyor’s name, while the second Site Plan was based on the Deed of Purchase of 1874 Site Plan. The second Site Plan, signed though, however was not dated.

Do these supposed infractions invalidate the Site Plans relied upon by the Plaintiff/Respondent?

In our considered view, the Deed of Purchase of 1874 Site Plan, though unsigned, cannot be invalidated by Section 6(1) and (2) of Act 127 on the basis that this Site Plan was prepared for a Deed of Purchase of land way back in 1874 and as such the provisions of Act 127 cannot be applied retrospectively to that time. It is public knowledge that during ancient times where there were no recognised or modern methods of delineating the boundaries of a parcel of land during a sale particularly where no certified landmarks could be employed towards such demarcation of land, the grantor/vendor applied the principle of “as much as your cutlass can weed” or apply such crude methods in demarcating the said land; see Amatei v Hammond [1981] GLR 300. Therefore on the basis that the provisions of Act 127 cannot be applied retrospectively, Section 6 of Act 127 cannot be said to invalidate the Deed of Purchase of 1874 Site Plan. Counsel for the Appellant was also not able to point to a particular provision of the said Statute of General Application which could invalidate the reliance on this Site Plan for lack of a signature of a Surveyor and on that basis the Site Plan attached to the Deed of Purchase of 1874 could and was rightly accepted by the trial judge without the date and signature of a Surveyor.

Regarding the undated but signed second Site Plan which was prepared based on the original Deed of Purchase of 1874 Site Plan and which apparently was used in the preparation of the Composite Plan, given as it has been signed by a licensed Surveyor it satisfies the provisions of Section 6 of Act 127 even though undated, particularly if and as the licensed Surveyor satisfies the provisions of Sections 5 and 5a of Act 127. These sections provide as follows:

5. Official Surveyors and licensed Surveyors

“The Minister may appoint official Surveyors, and the Chief Survey Officer may with the prior approval of the Minister, license private Surveyors, whose functions are to demarcate boundaries and to make surveys of lands”.

5a. Licensed Surveyors to pay practising fee

“(1) A Surveyor licensed under Section 5 shall not perform a function specified in that Section or in Section 6, unless the licensed Surveyor complies with subsection (2).

(2) A Surveyor referred to in subsection (1) shall pay an annual fee of Four Hundred Thousand cedis to the Chief Survey Officer on or before the thirty-first day of January of each year 2(2).

(3) A licensed Surveyor who performs a function in contravention of subsection (1) commits an offence as it liable on summary conviction to a fine not exceeding two hundred penalty units or to a term of imprisonment not exceeding six months, and is not entitled to recover, by civil action or otherwise, a fee, reward or disbursement on account of or in relation to an act done in the course of that practice 3(3)”.

With regards to the undated Site Plan the provisions of Section 10 of Act 127 rectifies the anomaly.

Section 10 of Act 127 provides as follows:

10. Errors in survey work

“(1) Where the work of a licensed Surveyor is not performed in accordance with this Act and the Regulations or the work is found to contain errors, the Chief Survey Officer may:

(a) on the licensed Surveyor to do the work in accordance with this Act and the Regulations, or to rectify the error, or

(b) Call on another licensed Surveyor to rectify the error.

(2) Where an error is rectified under subsection (1) (b) the Chief Survey Officer shall call on the licensed Surveyor responsible for the error to pay the expenses of the rectification.

(3) Where the licensed Surveyor mentioned in subsection 920 fails to pay the expenses, the Chief Survey Officer may, as nominal Plaintiff, by suit recover the costs of the suit and the expenses of the rectification.

(4) A certificate signed by the Chief Survey Officer certifying the amount of the expenses referred to in subsection (2) is prima facie evidence, without proof of signature, of the amount due.

(5) A licensed Surveyor who wilfully renders a false certificate on a Plan prepared under this Act and the Regulations commit an offence and it liable on conviction to a fine not exceeding two hundred penalty units or to a term of imprisonment not exceeding six months.

On the argument by the Appellant that the learned trial judge failed to properly evaluate the effect of the Respondent’ Site Plan which was not counter-signed by the Director of Survey as required by Regulation 4(2) of the Survey (Supervision and Approval of Plans) Regulation, 1989, LI 1444; per the authority of Nortey (No. 2) v African Institute of Journalism and Communication & 2 others [2013-2014] SCGLR; a Site Plan not signed by the Director of Survey or his representative will be contrary to the provisions in Regulation 3(1) of LI 1444, which makes it mandatory for Plans of any parcel of land attached to any instrument of registration of such instruments to be approved by the Director of Survey or any official Surveyor authorised in that behalf. The Supreme Court in the above case has pointed out that such Plans do not have any probative value.

However, it is important to take a much more close scrutiny of the said Plan. This was the Site Plan attached to the Deed of Purchase of 1874 by the Basel Mission from the Oyarifa Chief then, tendered as Exhibit A by the Plaintiff/Respondent. The question still remains that does Act 127 and LI 1444 invalidate such an unsigned Plan whose existence dates as far back as 1874? Can Act 127 and LI 1444 be applied retrospectively? Has counsel for the Defendant/Appellant been able to point to a particular provision of the said Statute of General Application which could invalidate the reliance of such an old Site Plan which dates as far back as 1874?

Even though the Supreme Court in the Nortey (No. 2) case supra held that a Site Plan not signed by the Director of Survey will be contrary to the provisions of Regulations 3(1) of LI 1444, and therefore does not have any probative value, this present case can be distinguished from that of Nortey (No. 2) case (supra). In the instant case the lack of signature of the Director of Survey on this Site Plan (Exhibit predates the passing of Act 127 and LI 1444 into law and as such it is clear that LI 1444 does not invalidate Exhibit A.

In conclusion, we cannot fault the learned trial judge’s decision that on the balance of probabilities and on the strength of the Composite Plan tendered by the Surveyor (Court witness) the disputed land should be held to belong to the Plaintiff/Respondent particularly as a perusal of the composite plan shows clearly that more than 90% of the Appellant’s land falls within and is embedded in the Respondents land. The only logical inference one can make is that the land belongs to the Respondent on the preponderance of probabilities.

We also had recourse to examining Section 146 of the Evidence Act on Ancient Documents. It provides as follows:

Authentication or identification of a writing may be by evidence that the writing—       

(a) is in such condition as to create no suspicion concerning its authenticity;

(b) was in a place where, if authentic, it might be expected to be; and

(c) is at least 20 years old at the time it is offered.

The trial judge stated at page 116 of the record that: “the witness therefore admitted that even though one Site Plan has no Surveyors name on it, the other Site Plan had a name JNK Ayiku as the Surveyor.’’

The trial judge, on the issue of the unsigned Site Plan stated at page 118 of the record that; ‘’these historical events given and the transfers took place before this controversy and so the evidence given in this court concerning the transfer and the Site Plan which has not been signed but bears a name is admissible to prove the claim of the Plaintiff.’’

The unsigned document could best be described as an ancient document for which Section 146 of the Evidence Act on ancient documents applies (supra).

In the court of appeal case of Ebusuapanin Yaa Kwasi & Ebusuapanin Kwamina Badu v. Arhin Davis & Nortey [28/11/2002] CA/NO. 11/2001, the

“Under Section 146 of the Evidence Decree (supra) “the document must be free on its face from suspicion, must be from proper custody, and be at least twenty (20) years old. The guarantee is based on the experience that a document not shown to be a fraud in 20 years in likely to be genuine. It is also based on convenience, for it might be difficult to find witnesses who could testify to its execution”.

Therefore, the Appellant’s argument that the unsigned site plan should not have been admitted in evidence or used in the preparation of the composite plan is forcefully countered by Section 146 of the Evidence Act on ancient document which is more than 20 years old at the time of its tendering.

In conclusion therefore, all the grounds of appeal fail and are dismissed as lacking merit. The judgment of the Circuit Court dated 15^th February, 2013 is hereby affirmed.

Cost of One Thousand Ghana cedis (GH¢1,000.00) in favour of the Plaintiff/Respondent.

(Sgd)

Margaret Welbourne (Mrs.)

(Justice of Appeal)

(Sgd)

Gyaesayor     I agree P. K. Gyaesayor

(Justice of Appeal)

(Sgd)

Acquaye         I also agree    K. A. Acquaye

(Justice of Appeal)