IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL
KUMASI - A.D 2017
DR. P. S. ADOM-ATTAKORA - (Plaintiff/ Respondent)
OPANIN KOFI GYEBI AND MADAM ABENA FORIWAA - (Defendants/ Appellants)
DATE: 21ST DECEMBER, 2017
SUIT NO: H1/30/2015
JUDGES: AYEBI J.A. (PRESIDING), TORKORNOO (MRS) J. A., DOMAKYAAREH (MRS) J. A.
COUNSEL FOR DEFENDANTS /APPELLANTS- AKUA OPPONG MENSAH
COUNSEL FOR PLAINTIFF /RESPONDENT - ABBAS KALEEM AMANKWAH
This is an appeal from the decision of the high court, Mampong Ashanti. In his twice amended Statement of Claim, the Plaintiff/ Respondent alleged that he had acquired plot no 7, sector 3 Extension 3 Block B, Kofiase New Site from the Asenee family (properly spelt Asinie family from their own records) through the plot allocation committee of Kofiase Traditional Council on the 19th July 2003.
He had been given documents on the acquisition. His case against the 1st Defendant/Appellant was that he was the brother of the Kofiase chief and he had unlawfully sold the plot 7 to the 2nd Defendant/Appellant who was seriously developing it. He later added Opanin Kofi Anane and Denteh Daniel to the suit as co-Defendants. Since it is not clear whether they are co-Defendants to 1st or 2nd Defendants/Appellants, I will refer to them as 3rd and 4th Defendants. They are not Appellants in this suit.
He sued the 1st and 2nd Defendants/Appellants for the following claims:
Title to and recovery of Plot No. 7 sector 3 Extension 3 Block B, Kofiase New Site which the Defendants have unlawfully trespassed unto.
Damages for trespass.
Injunction restraining the Defendants, their servants, workmen, assigns or agents from dealing with the said land till the final determination of this court.
In their Amended Statement of defence and counterclaim, the original Defendants (hereinafter referred to as Appellants) denied knowledge of any acquisition of the claimed plot 7 by the Plaintiff/Respondent. They also alleged that the land was not the property of the Asinie family of Kofiase and so the family could not sell same to Plaintiff/Respondent. They contended that it belonged to the immediate family of the Defendants/Appellants and it was Opanin Yaw Anokye, grandfather of the Defendants/Appellants who originally cultivated the land when it was a virgin forest, and so their ancestors had been on the land for well over One Hundred (100) years. They added that the 1st Defendant/Appellant succeeded Opanin Yaw Anokye on his death. The Statement of Defence alleged that any alleged acquisition of the land in issue by Plaintiff /Respondent was void ab initio, and the 2nd Defendant/Appellant was developing the land lawfully. They further claimed that in an agreement dated 22nd March 2011, the head of the Asinie clan had agreed with the 1st Defendant/Appellant that the plot in dispute is the property of the 1st Defendant/Appellant.
They counterclaimed ‘for a declaration of title to plot number 7 & 4 Sector 3 Extension B, Block B, bounded by the properties of plot nos 3,8, 5 & 6 which the Plaintiff has trespassed on’.
In his Reply to the defence, the Respondent clarified that 1st Appellant and 3rd and 4th Defendants were part of the negotiation to sell the land in issue to him in their capacities as principal members of the Asinie family. He said that they all consented to the sale of the plots of land to him. The 1st Defendant/Appellant also doubled as the then chairman of the plot allocation committee and the 3rd Defendant/Appellant doubled as the Head of the Asinie family. Respondent said he paid for the said plot 7 to the 4th Defendant/Appellant who later gave him all the necessary documents. Apart from being part of the sale to him, Respondent contended that the Appellants and 3rd and 4th Defendants went as far as moving three people who were occupying three of the plots adjoining his house and which the land in dispute formed part of, in order to re-allocate it to him.
They also charged him an extra GH¢20,000 per plot in order to be re-allocated the land in issue. As such the Defendants could not give title in the land to the 1st Defendant/Appellant who in turn could not pass title to 2nd Defendant/Appellant, having sold the land to him as far back as July 2003.
After a trial, the trial judge ruled in favour of the Respondent. He drew attention to the evidence that all the Defendants came from the Asinie family and collaborated to sell the plot 7 and other lands to the Respondent. He also drew attention to the improbability of the 1st Defendant/Appellant succeeding his ancestor Anokye who he claimed developed the virgin land a century ago, such that through succession to the said Yaw Anokye, he directly owned the plot number 7 in issue,. It was his evaluation that if even the 1st Appellant succeeded the said Yaw Anokye, it was not a direct process and there was a gap in succession from Yaw Anokye to the 1st Defendant/Appellant who the trial judge described as being ‘1/2 of a century old’. He also found that from all the facts, the larger land from which plot 7 was carved for allocation to both the Respondent and 2nd Appellant was in the control of the larger Asinie family. And that control was exercised with the 3rd Defendant as the head and the 1st and 4th Defendants as principal members of the family.
The learned judge traced the evidence of all the parties that settled the position that all the Appellants and Defendants collaborated to sell eight plots of land in two different transactions to the Respondent.
They also took money from the Respondent and sold the plot no 7 he was claiming to him, as part of the transactions covering the second tract of four lands. The Respondent had gone into occupation and possession of all the other seven plots within these two tracts of land. He held that ‘since plots nos 4 and 7 have been given out already to the Plaintiff by the Asene family, the Asene family cannot again give out plots nos 4 and 7 to any other person. This is more so when the Plaintiff has fulfilled all conditions of sale.
Therefore the 2nd Defendant had nothing as the 1st Defendant, Kofi Gyebi cannot give out what he does not have. Nemo dat quod habet’. He entered judgment for the Respondent with costs of GH 2000 GHC
The grounds of appeal filed by Appellant are that
The judgment is against the weight of evidence.
The court erred in the law for giving judgment for the Plaintiff when he has not satisfied all the legal requirements needed for a declaration of title to land.
The court erred in law in not making a finding of fact of non-participation of 1st and 2nd co-Defendants even though they were parties to this action and have very important part to play.
Further grounds will be filed on receipt of records of proceedings.
Rule 8 (1) of the Court of Appeal Rules 1997 CI 19 enjoins the appellate court to conduct every appeal as a rehearing. And within this context, we find this appeal an extremely unsustainable exercise. The third ground of appeal complained about the 3rd and 4th Defendants not participating in the trial and urges that it was an error in law for the court not to make finding of facts of ‘non-participation’ against them when they had ‘very important part to play’ in the suit.
Fortunately, Appellant counsel abandoned this ground of appeal in his submissions. We find that act appropriate because it is a ground of appeal that should raise a grave note of concern within any contemplation of the practice of law. If parties refuse to defend an action, how does a court err in not stating the obvious that they had failed to participate in the trial? Is that fact not evident on the records? And how can that ground an appeal? How can there be a requirement to make a finding of fact from a fact obvious from the record? Findings of fact are arrived at after evaluation of contentions around fact. They are not mere observations of fact. So we agree with Appellant counsel for withdrawing it from the grounds of appeal because we think that this is not a matter that should even have been considered as a ground of appeal.
Respondent counsel invited us to strike down ground (2) of the grounds of appeal because it is vague, and general in terms. We do not agree that it should be struck down because it is vague and general, which would offend against Rule 8 (2) (6) of the Court of Appeal Rules 1997 CI 19. It purports to present that in law, there are requirements for a party to be awarded a declaration of title to land and it is an error of law if a party fails to satisfy these requirements and yet a court gives a judgment declaring title to land. The duty on Appellant counsel therefore is to present cogent submissions on what these requirements are, and how the Respondent failed to prove them. We will therefore not strike out the second ground of appeal but consider the submissions made thereon.
Appellant counsel presented that he was subsuming his submissions on Ground (2) with those of Ground (1). As is appreciated and understood from the authority of cases such as Djin v Musah Baako 2007-2008 SCGLR 687 (cited by Appellant’s counsel) an Appellant who claims that a judgement is against the weight of evidence implies that there were certain pieces of evidence on record which should have been applied in his favour, but were not. He also implies that, there were pieces of evidence that were construed against him but which ought not to have been so construed. Further that, if they are properly considered in his favour in the appeal, the judgment will turn in his favour. To that extent, we understand that Appellant counsel will identify the requirements of the law that should lead to a finding that a person is entitled to declaration of title to land, and point to the presence or absence of evidence which should not have led to the declaration that Respondent had proved his title to the Plot number 7 that he claimed – as held by the court.
On page 3 of his submissions, Appellant counsel said ‘It is humbly submitted that the burden was therefore on the Respondent to lead credible evidence not only to prove the fact that the plot in dispute had been allocated to him but indeed his grantor had the title and right to do so’. He said there was no way the Respondent could have fulfilled the requirement to prove that the property in issue was that of the Asinie family of Kofiase ‘without calling his grantor or members of the family of his grantor to establish his title’
We must disagree with Appellant counsel. It is not and cannot be a principle of law that for a party to prove his title to land, it is not enough to prove the documentary evidence of title but he must willy nilly call his grantor – especially in a case like this where the Respondent had sued the very grantors who sold the land to him. As with any burden of persuasion, the Respondent as a party carried the obligation to present sufficient evidence to prove that on a preponderance of probability, his case is the right version and justice will be served by accepting it. The critical obligation is the provision of ‘sufficient evidence’ and nothing more.
And we agree with the learned trial judge that Respondent more than discharged the burden to produce sufficient evidence regarding his due acquisition of the plot 7 that he claimed.
This is a suit in which the Respondent’s contentions about the fact of acquiring the plot 7 in issue as part of a four-plot parcel of land was ably corroborated by documentary evidence. Appellant counsel himself identified the allocation paper tendered as exhibit A with supporting site plan on pages 80 and 81 of the Record of Appeal. The fact of the creation of the allocation paper by the Asinie family with the consideration received by the 1st Appellant himself as head of the Allocation committee was not denied by Appellant.
When it comes to the authority of the Asinie family to grant the plot 7, the Appellant’s only debate was that after acting with others to allocate the land on 19th March 2003 and receiving money for it, his family gave it to him by an arbitration agreement eight years later on 22nd March 2011 after this court suit was commenced on 2nd February 2011. He goes on to say that his family gave it to him even though his family did not have the right to give it to the Respondent eight years earlier because it belonged to him directly by reason of his succeeding his ancestor who obtained the land as virgin land more than a hundred years ago. It is for this reason that the Respondent carried a burden to call members of the Asinie family (apart from the 1st Appellant who had ably admitted to these bits of evidence set out above) to prove that the Asinie family had the right to sell the plot 7 to Appellant. Surely, the incoherence and un-tenability of Appellant’s submissions on these issues must be evident to Appellant counsel himself?
As the learned trial judge pointed out, the testimony that the plot 7 claimed by Respondent could not have devolved directly from an ancient ancestor to the 1st Appellant by reason of 1st Appellant’s age is evident from the mere physical stature of the 1st Appellant. And we fail to see how this conclusion could have been construed differently in favour of the Appellant. When did that ancestor die? If he died recently enough to have been succeeded by the 1st Appellant, then the burden lay on 1st Appellant to prove it, and no other person. But 1st Appellant made no effort to present evidence of the date of that ancestor’s death and his alleged succession which would enable him have title to the plot 7 claimed by Respondent, or the plot 4 claimed by the Appellants in their counterclaim. So that position of Appellant was rightly dismissed.
And the finding that the larger Asinie family was in control of the lands in issue is amply supported by the evidence of the management of the lands through an allocation committee and the parade of allocation notes actively participated in by the 1st Appellant and the 3rd and 4th Defendants. No other determination could be arrived at from the evidence on record.
Third, no consideration in equity and good conscience can support a finding for the Appellants with regard to the Asinie family handing over title on the said plots 4 and 7 to the 1st Appellant a month and more after the Respondent had commenced this action. Even worse is the presentation that it was done through an arbitration agreement that was not tendered or supported with any manner of evidence. What would be the basis for this arbitration agreement? How could the family, acting through 1st, 3rd and 4th Defendants with others, sell land to Respondent in 2003, then watch the 1st Appellant purport to take control of the same plot 7 eight years later, and sell it to the 2nd Appellant?
And when he is sued, they enter into an arbitration agreement to give 1st Appellant control over the very land that he is supposed to have had control over through his century-gone ancestor? As we said, the un-tenability of Appellants’ case must be evident to even his own counsel who presented them.
We also note that as the case progressed, 1st Appellant shuffled his contentions to include the argument that the land had indeed been properly sold to the Respondent but the Respondent had breached a term of the allocation being a duty to develop it within five years.
So which of these defences should be accepted by the court? The lack of authority of the Asinie family to sell plot 7 to Respondent because he 1st Appellant succeeded the ancestor Yaw Anokye and owned it to the exclusion of the larger Asinie family – even though he joined them to sell it to the Respondent in 2003? Or authority in the Asinie family to grant plot 7 and 4 to him 1st Appellant through an arbitration agreement two months after this suit had been initiated? Or authority in the Asinie family to grant plot 7 along with 3,4, and 8 to Respondent which grant should be held to have been invalidated by Respondent failing to develop the land after 5 years?
The law has always frowned on contradictions. Findings of fact can only arise out of consistent and cogent evidence. The firm position of the law is that a court ought to deny the claims of any party who contradicts his own pleadings by presenting conflicting positions while giving testimony. See the dictum of Supreme Court per Gbadegbe JSC in Opanin Yaw Boakye (substituted) for Opanin Kwadwo Adom v Opanin Kwame Marfo Civil Appeal No. J4/41/2010 dated 20th April 2011. The basis of such a holding is that the party has departed substantially from his case and accordingly his case should not be given a favourable consideration. See also the case of Mahama v. Issa 2001 – 2002 1 GLR 694 cited in the Opanin Yaw Boakye case.
The only construction that can arise from the various presentations of 1st Appellant is a confirmation of the fact of allocation of plot 7 to Respondent, and this only helped to discharge the burden of the Respondent by authenticating the said allocation. The trite rule of evidence is that if the position of a party is corroborated by the opponent whilst that of his opponent remains uncorroborated even by his own witnesses, a court ought not to accept the uncorroborated testimony in preference to the corroborated testimony unless the court has especially good reason to do so, such as finding the corroborated evidence improbable, impossible or unacceptable. See the long line of cases that have solidified this principle, including Asante v Bogyabi 1966 GLR 233 at 240, In re Ohene (Deceased); Adiyia v Kyere 1975 2 GLR 89 at 98, Banahene v. Adinkra 1976 1 GLR 346 at 350 and Manu v. Nsiah 2005 – 2006 SC GLR 25.
In the circumstances, the duty on the Respondent to prove allocation of, and payment for the plot 7 he claimed was ably discharged by the Appellants’ confirmation of the allocation to the Respondent by the Asinie family, as part of their argument that the Respondent did not utilize the land within five years. The judgment in favour of the Respondent was not against the weight of evidence.
Regarding the counterclaim of the 1st Appellant to plots 7 and 4, we note the substantial effort the
Respondent counsel made to point to the array of testimonies that showed how the 1st Appellant failed to prove his counter claim. Having upheld the finding that plot 7 was properly sold to the Respondent through the same allocation paper and site plan which covered plot 4, we do not find the need to review these submissions to show how much we agree with them. They are too many and the effort will not be justified by the lack of merit in this appeal. The counterclaim was rightly dismissed as unsupported by the evidence before the court.
The appeal is dismissed. Cost of Two Thousand Five Hundred Ghana Cedis (GH¢2,500.00) against the Defendants/Appellants