EKOW NUNOO vs. KWESI ANDREWS MENSAH
  • IN THE SUPERIOR COURT OF JUDICATURE
    IN THE COURT OF APPEAL
    CAPE COAST - A.D 2017
EKOW NUNOO - (Plaintiff/Respondent)
KWESI ANDREWS MENSAH - (Defendant/Appellant)

DATE:  27TH JUNE, 2017
CIVIL APPEAL NO:  H1/2/2017
JUDGES:  HONYENUGA J.A (PRESIDING), GYAN J.A, SUURBARREH J.A
LAWYERS:  PATRICK ASAMOAH, ESQ FOR THE DEFENDANT/APPELLANT
GUSTAV ARDINTON, ESQ FOR THE PLAINTIFF/RESPONDENT
JUDGMENT

SAEED K. GYAN, J.A

 

On 15th September, 2015 the Circuit Court, Agona Swedru, in the Central Region delivered a judgment in respect of a piece and parcel of land located at Agona Swedru.

 

The judgment went in favour of the Plaintiff.

 

By the said judgment, the Court decreed title in the disputed land in favour of the Plaintiff, ordered recovery of possession from the Defendant and granted an order of perpetual injunction against the Defendant and his agents, assigns, workmen and all others claiming through the Defendant.

 

Additionally, the Court awarded general damages in the sum of GH¢2000 against the Defendant as well as costs of GH¢1000 in favour of the Plaintiff.

 

On the other hand, the Court did not find the Defendant’s counter-claim to be well founded and properly proven and, accordingly, dismissed the counter claim in its entirety.

 

Obviously displeased with and aggrieved by the judgment, the Defendant promptly filed a Notice of appeal on 25/09/2015 against the whole decision of the Court.

 

The Court’s judgment can be found on pages 57 to 69 of the record of appeal (ROA), while the Notice of Appeal appears on pages 70 and 71 of the ROA.

 

Not surprisingly, the initial ground of appeal was only to the effect that the judgment was against the weight of evidence, with the customary indication to file further grounds upon receipt of the record of proceedings.

 

 

The relief sought from the Court of Appeal was for an order setting aside the impugned judgment of the Circuit, Agona Swedru, dated 15/9/2015 and a further order entering judgment in favour of the Appellant.

 

The Defendant/Appellant, subsequently, filed six further or additional grounds of appeal in the manner set out below:

 

The Honourable Circuit Court Judge erred when she held that the Plaintiff has capacity to institute the suit

 

The honourable Circuit Judge made a wrong finding of fact when she held that the Defendant did not plead limitation.

 

The Trial Judge did not give adequate consideration to the case of the Defendant/Appellant.

 

The Honourable Circuit Court Judge erred when she held that it was Plaintiff/Respondent father who purchased the disputed land about 63 years ago.

 

The Honourable Circuit Court Judge erred when she held the Plaintiff and Defendant were referring to one and the same piece of land

 

f) The Honourable Circuit Court Judge erred in law in solely relying on Section 43 (i) of the land title Registration Act, 1986 PNDCL 153 to decree title in the Plaintiff/Respondent without considering factual possession of the parties as enunciated in ADJI AND Co VS. KORANTENG (1982-83) GLR 1382 @ 1384 holding 6- a decision that binds the Circuit Court”.

 

The facts relevant to this case, which form the backdrop to this appeal, may usefully be stated as follows:

 

On 05/04/2003 the Plaintiff instituted an action at the Agona Swedru Circuit Court for the reliefs indorsed on the writ, namely

a. Declaration of title and recovery of possession of all that piece and parcel of land lying and situate and being at Anafu Dasuanim, Agona Swedru bounded on the north and South respectively measuring 100 feet by vendor’s land and on the East and measuring 100 feet by vendor’s land and West by J.K.A. York, and Asibu’s lands measuring 100 feet.

b. Perpetual Injunction restraining the Defendant, their agent, assigns, workmen etc. from interfering with the said land.

c. General damages for trespass

d. Costs”.

 

Accompanying the Writ was a 12paragraph statement of claim.

 

The indorsement on the writ stated that the Plaintiff was suing for himself and, upon their consent, on behalf of “his other siblings”. The other siblings were however not specifically named or disclosed. The Plaintiff filed the writ himself without doing so through a Lawyer.

 

It was the case of the Plaintiff that the land in dispute was originally acquired through purchase by his father, one Opanyin Kwa Kwanumanu, and his aforesaid father’s brother called Kofie Ahur who were both deceased at the time of the commencement of the suit. According to the Plaintiff the land was purchased from one Kweku Adjaye II who was Head of the Nsona stool family of Agona Swedru. The Plaintiff contended that upon his father’s death, one J.B. Mbroh who was their father’s nephew and his customary successor did in August 2006 “bequeath” (sic) the said land to him and his siblings. The Plaintiff said further that he had since been in possession of the land until 2011 when he observed that the land had been trespassed upon and that a kiosk and a container had been erected thereon at the instance of the Defendant, who alleged that the land belonged to his ancestors. The Plaintiff averred also that his earlier complaints to a local chief and then to the Police having failed to yield positive results he was compelled to seek relief from the court.

 

The Defendant entered appearance through his lawyer. Ishmael Kwofi Turkson of Agona Swedru, and filed a statement of defence and counterclaim.

 

The Defendant took the position that the land in dispute, as identified by the Plaintiff was different from the land which the Defendant was occupying and, besides, the Plaintiff lacked capacity to institute the action.

 

Setting out his root of title, the Defendant alleged that an ancestor of his called Opanyin Yaw Baah acquired the land in dispute over 50 years ago. His said ancestor belonged to the Asona family of Agona Swedru. According to the Defendant, he came into possession of the land by succession and that his family had been in effective control and possession of the land from the days of Opanyin Baah and that it was in furtherance of their ownership that he gave the place to a hairdresser and an Akpeteshie seller to ply their trade thereon by putting up their respective structures. The Defendant stated further that he had litigated over the land and won and that his family having been in undisputed and uninterrupted occupation of the land for over 50 years the Plaintiff was caught by acquiescence and the Limitation Act. The defendant then stated the boundary owners of what he described as the land in dispute and set out his counter-claim seeking a declaration of title to the land, general damages for trespass, perpetual injunction and costs, including legal costs.

 

In his reply the Plaintiff denied the incidents of ownership, set out by the Defendant and equally denied that the Defendants family had been in effective possession of the land. According to the Plaintiff their father and his brother acquired the land long before the date the Defendant claimed his ancestor obtained his land and that at any material time it was his father who had been in effective possession of the land through his caretaker, one Opanyin Suwonkwa, who had been in charge of the land for over 50 years till his death but that the caretaker’s children had litigated over the land in the erroneous belief that it belonged to their late father. In the circumstances, the Plaintiff denied the Defendant’s counter claim.

 

The issues raised for determination upon application for directions included the following:

i) Whether or not the Plaintiff’s father purchased the land same 63 years ago.

ii) Whether or not the Plaintiff had capacity to sue.

iii) Whether or not the land the Plaintiff was claiming was entirely different from the one the Defendant was occupying.

iv) Whether or not the Plaintiff was caught by estoppel, acquiescence and the limitation Act.

 

At the plenary trial both parties gave evidence. The Defendant did not call any witness.

 

The Trial Judge as noted earlier on entered Judgment for the Plaintiff and dismissed the Defendant’s counterclaim.

 

Being aggrieved the Defendant mounted the instant appeal seeking a reversal of the trial court’s decision and entry of judgment in his favour.

 

It is trite learning, which now finds firm expression in Rule 8(1) of the Court of Appeal Rules, 1997, C.I. 19, that an appeal to the Court of appeal shall be by way of rehearing. This means that the Court is enjoined to examine the entire record and satisfy itself whether or not on the basis of the evidence on record and all other relevant and admissible material contained in the record of appeal the judgment impugned in the appeal is sustainable in fact and law.

 

This is particularly so where, included in an appellant’s grounds of appeal is what is commonly referred to as the omnibus ground, namely, that the judgment or ruling appealed against was against the weight of evidence led.

 

In this connection, Akamba JSC expressed himself thus in the case of F.K.A. Company Ltd. and

Another V. Nii Ayikai Akramah II and others (2016) 101 GMJ 187 at pages 215-216:

 

“ under this ground of appeal, the whole matter opens up for rehearing based upon the record of appeal. Thus the entire record of what transpired in the Court of trial including testimonies, cross-examinations, exhibits accepted or rejected, and indeed every or any documentary or other evidence adduced or rejected at the trial before the Court arrived at its decision, will be open to the appellate Court to examine to satisfy itself that on a preponderance of probabilities, the conclusions of the trial judge are reasonable or amply supported by the evidence”.

 

See: also: Tuakwa V. Bossom (2001-2002) SCGLR 65; Aryeh and Akakpo V. Ayaa Iddrisu (2010) SCGLR 891

 

Where, therefore, an appellant complains that the judgment was against the weight of evidence the burden or obligation was cast upon him to clearly demonstrate or show to the satisfaction of the appellate Court which were the lapses that could be discerned from the impugned judgment and to show further that the lapses pointed out were such that they justified an interference by the appellate Court to set aside or otherwise review the judgment or order of the court below. See; Bonney V. Bonney [1992-93] 2 GBR 779

 

 

 

 

In reviewing the record of appeal the appellate Court was entitled to make up its own mind on the basis of the record before the Court and to draw appropriate inferences from the facts disclosed by the record.

 

This does not mean that an appellate Court could or should set aside the lower Court’s findings of fact or set aside the judgment merely because it could have exercised a different discretion on its evaluation of the evidence from that of the Court below.

 

This is particularly so where the findings of the trial Court are based on the demeanour of witnesses since the trial Court was decidedly in a better position having directly seen and heard the witnesses.

 

The appellate Court would clearly then be within its rights to disturb the judgment complained about where it can be shown to be obviously wrong or that the Court failed or neglected to take all the circumstances and the evidence into consideration in coming to its conclusion; or that the Court below had drawn wrong inferences with no real evidence to back its position, or even that the trial Court had not taken proper advantage of seeing and hearing the witnesses first hand. For example, the Court may be shown to have failed to observe inconsistencies or undisputed facts or ignored material probabilities.

 

To succeed in such a situation, therefore, an appellant is further required to point out pieces of evidence in his favour which were overlooked by the trial Court or any pieces of evidences which were wrongly used against him which, when correctly or properly evaluated could have changed the nature or outcome of the judgment. Ref: Akuffo-Addo V. Catheline [1992] 19 GLR 379; Koglex Ltd. [No.2] V. Field (No.2) [2000] SCGLR 175 @ 184; Ababio V. Bekoe (1996-97) SCGLR @ 394; Djin V. Musah Baako and Kwa Kakraba .V Kwesi Bo(2012) 2 SCGLR 843 at 841.

 

In his written submissions filed on 28/7/2016, Counsel for the appellant first raised the issue of capacity, as he was perfectly entitled to do. It was his view that the Plaintiff had no capacity to sue since the Plaintiff had not shown that he possessed a vesting assent which entitled him to sue on any matter touching on the property in dispute. According to Counsel, by the Plaintiffs own admission, the property in dispute was originally acquired by his father and the father’s brother and that the document of purchase (Exhibit A) which the Plaintiff/Respondent herein relied on to establish his root of title did not show that the conveyance set out a joint tenancy in the absence of which the original purchasers must be taken to have obtained the property as tenants in common.

 

According to Counsel for the Defendant/Appellant, “there is no where in the record which indicates that the Respondents father’s customary successor was the Administrator, Executor or Trustee of the estates of either Opanyin Kwa Kwanumanu or Kofie Ahur to enable him bequeath same to the respondent and siblings”. Counsel therefore concluded that the said customary successor “lacked the capacity to alienate the disputed property to both the Respondent and his siblings and whatever he did was null and void and of no legal effect”. Counsel relied on the cases of Mcfoy V. UAC (1961) 3 ALLER 116a (1172-1173) and P.C. Donkoh V. Nkrumah (1964) GLR 739. Counsel suggested further that the decision by the customary successor of the Plaintiff’s father to gift the land in dispute to the Plaintiff and his siblings sinned against the NEMO DAT QUOD NON HABET principle as he could not give what he did not have. It was the view of Counsel for the Appellant to the extent that the Plaintiff/Respondent did not have capacity to sue, the trial Court was not enjoined to even examine the merits of the case at all. Counsel cited the cases of Sarkodee I V. Boateng II (1982-83) 1 GLR 715 and Republic V. High Court, Accra: Ex parte Aryeetey (Ankrah Interested Party) [2003-2004] 398 to back his contention.

 

In his almost casual response to the valiant and laborious effort at legally cutting down the Plaintiff’s case on the ground of the want of capacity, Learned Counsel for the Plaintiff/Respondent simply stated that upon the death of the Plaintiff’s father, Kwa Kwanuma, “the control of the disputed land went into the hands of the deceased’s family” following which the said family “agreed to give to the children” the land in dispute since the children “were not given any share of his building he put up”.

 

According to Counsel for the Plaintiff, the Plaintiff did not institute the action as customary successor of his late father and consequently did not need to obtain Letters of Administration. Counsel submitted further that the Plaintiff’s averment that he was suing for himself and on behalf of his other siblings was neither denied nor disputed by the Defendant and therefore the Defendant must be taken to have admitted the Plaintiff’s capacity since it was not challenged.

 

I should say that Learned Counsel for the Defendant/Appellant’s proposition touching on the consequences of the want of capacity in a party is good law, generally speaking. But I am not persuaded that his analysis of the law in relation to the Plaintiff’s case is well founded.

 

The issue of capacity is not a fit-all proposition. Capacity comes in many shapes and sizes and thus each case must be determined on its own merits in order to establish whether a party may be held to have or not have capacity to sue in the particular circumstances of each case.

 

Introducing the issue of joint tenancy as against tenancy in common as well as whether or not the Plaintiff had obtained Letter’s of Administration or Vesting Assents in relation to the land in dispute, for me, is nothing but a red herring intended to obfuscate the matter raised for determination in the Court below.

 

The Defendant/Appellant traces his root of title to an ancestor whom he alleged acquired the land by way of reducing a virgin forest into cultivation only 50 years or so ago. He is said to have come into possession of the land as the third successor to the alleged ancestor. The Defendant/Appellant mounted a counter-claim seeking reliefs similar to what was claimed by the Plaintiff/Respondent. The Defendant seems to have closed his own eyes to the technical objections he raised against the Plaintiff since he did not show that he was himself the bearer of Letters of administration or Vesting Assent before contesting the case or prosecuting his Counter-claim in relation to the land in dispute.

 

In the instant case, can it be said that the Plaintiff was totally bereft of capacity to institute the action altogether?

 

It would be noted that, apart from the claim for declaration of title the Plaintiff also indorsed his writ for general damages for trespass as well as a relief for perpetual Injunction.

 

By the pleadings, it was the contention of the Plaintiff that his father’s family had granted or otherwise gifted (bequeathed) the land in dispute to him and his siblings upon the death of their father in order to compensate them for not being given a share of a building put up by their late father, and that the Plaintiff had at all material times been in possession of the disputed land. He maintained that he instituted the action because the Defendant had violated his right of possession to the land by permitting two persons to put up structures on the land without his consent or authority.

 

In Seraphin V. Amua-Sekyi [1962] 1GLR 328@ 331 Ollenu J(as he then was) declared thus

 

A person in possession can successfully maintain an action for trespass against the whole world except the person proved to be the true owner”

 

See also: AWORO V. BUOR [1962] 2 GLR 128; SERWAH V. KESSE [1960].

 

To the extent that the Plaintiff complains about the defendant/Appellant having trespassed unto land allegedly in his possession, prima facie, it can be said that the Plaintiff has a cause of action against the Defendant.

 

Whether or not he can prove or establish his claim is clearly separate from having the purported cause of action. From the pleadings, it cannot be said that the Plaintiff is a mere busy-body. If the Plaintiff can be shown to have a grievance and had demonstrated a sufficient interest in the land in dispute then he can in law be said to have locus standi to mount the action, and hence legal capacity to institute the action and not to be driven away from the judgment seat without being given a hearing.

 

It will be noted that the Defendant’s pleading touching on the issue of capacity is contained in paragraph 5 of the statement of defence which simply states without any particulars as follows:

“5. Defendant says that the Plaintiff lacks capacity to institute the instant action”

 

The Plaintiff launched the action without the benefit of Legal Counsel and obviously could not be expected to appreciate fully the technicalities of the law.

 

From the foregoing analysis, I am satisfied that the objection as to capacity has no merit in the circumstances of this case. The second ground of appeal touching on the Plaintiff’s lack of capacity to sue is accordingly dismissed.

 

On the merits of this case I should say that I have examined the pleadings and read the evidence tendered by the parties as well as the witnesses called in the case during the trial.

 

 

I have gone through the judgment of the trial Court and considered the written submissions filed on behalf of the parties by the respective Lawyers. I must confess my deep appreciation for the evident industry demonstrated by Learned Counsel for the Defendant/Appellant herein in putting together his written submission.

 

It seems to me that the matter before the trial Circuit Court and hence the case before this Court, based on the record of appeal, falls within a narrow compass. In the end, the issue really comes down to which of the parties presented the more credible case.

 

The Learned trial Judge preferred the case of the Plaintiff/Respondent herein and rejected the case presented by the Defendant by way of his Defence and Counter-claim.

 

Was the trial Judge justified in her decision?

 

The Defendant/Appellant at all material times was represented by Legal Counsel as against the Plaintiff/Respondent herein.

 

In the circumstances, I do find the rather scanty and almost anaemic evidence presented by the defendant to be clearly difficult, if not impossible, for any court minded to do justice to accept as sufficient proof to establish the case of the Defendant.

 

With respect, for instance to the identity of the land in dispute, it is my respectful and considered view that it is much more fully settled and better defined by the testimonies of the Plaintiff and his two witnesses and supported by Exhibit ‘A’ being the indenture between Kweku Adjaye II, Head of the Nsona Stool of Agona Swedru, and Kwa Kwanumanu and Kofie Ahur.

 

The position taken by the Defendant on the evidence in relation to the identity of the land appeared ambivalent, if not contradictory. A few examples may be in order. Counsel for the Defendant had the following conversation with the Plaintiff under cross-examination, as appears on page 19 of the record of appeal.

Q. And the property in dispute which you are claiming belongs to your father?

A. Yes my lord.

Q. You have no capacity to come to Court to claim the property?

A. My capacity/authority is that my father married 5 women.

 After his death, his family gave we the children this property because they admitted that the house he built we did not have a share in it.

Q. I’m putting it to you that whatever your family gave you is not in respect of the land in dispute?

A. My lord it is the property the elders gave to us.

Q. I’m putting it to you that your father’s successor Mbroah made Opanyin Suwunkwa care taker of the land?

A. My lord it was my father himself who appointed Suwunkwa as the caretaker of the land.

Q. Again your father whiles alive did not appoint Suwunkwa as caretaker?

A. My lord my father appointed Suwunkwa as the care taker.

Q. The land in dispute is the family property of the Asona family of Desuenim in Agona Swedru?

A. It belongs to Asona Family who sold it to my father by the Asona Ebusuapanyin Kweku Adjei

On page 26 of the record of appeal (ROA), under cross examination of PW2, Kwame Mbroah who claimed to be the customary successor of the Plaintiff’s father the following transpired:

 

I’m putting it to you that the land Ekow Nunoo (the Plaintiff) showed you is different from the land in dispute.

 

Not so my lord. It is the same piece of land.

 

And on page 37 the Defendant himself had this to say under cross-examination by the Plaintiff

Q. I’m putting it to you that the land you are referring to is different from the land in dispute.

A. It is the same land.

 

Regarding his root of title, the Defendant and his Counsel appear to me to erroneously present their case as if it were traditional evidence.

 

The Defendant said the land in issue was acquired by his “ancestor”, Opanyin Yaw Baah about 50 years ago and that it was Virgin forest land which Yaw Baah developed and which he the Defendant obtained by way of succession. He alleged that at the time his uncle reduced the virgin land into cultivation all the land surrounding that parcel of land had already been reduced into cultivation and was occupied by certain named persons.

 

Now, evidence about an event just 50 years ago can only be regarded as primary and not traditional evidence because it is about an event in living memory.

 

In any event, the incongruity of the Defendant’s story or narrative about the acquisition of the land and hence about his root of title was not lost on the Plaintiff, even as a lay man and not a professional Lawyer, as demonstrated by the following conversation under cross-examination of the Defendant by the Plaintiff on page 37 of the ROA.

 

Q. How was the immediate surroundings of the land when your ancestors broke its virginity

A. Oil palm trees, coconut and plantains

Q. Had the virginity of these surroundings been broken

A. Broken

Q. Is it possible for a virgin land measuring only 100x 70 feet to stand in the mist (sic) of a larger defiled land?

A. That is what my uncle also inherited

Q. Who is your uncle

A. Opanyin Yaw Baah.

 

And on page 38 the following is disclosed during cross-examination of the Defendant by the Plaintiff.

Q. Did your predecessor tell you he owned the land in dispute.

A. It is family property

Q. Where are the documents which testify that the land is family property

A. They were with D.K. Nyame when he died Mbroah took over the documents. After the death of Mbroah we did not find the documents again.

 

Of course, the event of the alleged acquisition being of recent memory and considering that when Yaw Baah allegedly reduced the virgin forest land into cultivation all the land around it had already been developed or otherwise cultivated, it should not have been too difficult to get the surrounding boundary owners to testify in verification of the Defendant’s claim. Yet the Defendant signally failed to produce even one boundary owner as a witness to testify despite his evidence to the effect that the documents covering the land had gone missing. See: MOJALAGDE V. LARBI and others [1959] GLR 190.

 

Contrast this situation with the evidence tendered by the Plaintiff in relation to the identity of the land in dispute, particularly Exhibit ‘A’. It can then be appreciated why the trial Court preferred the case of the Plaintiff to that of the Defendant/Appellant herein.

 

In the case of Seidu Mohammed V. Saanbaye Kangberee [2012] 2 SCGLR 188 at 1185, the Supreme Court had cause to declare that Courts of law should not prefer “porous, weak, inconsistent and contradictory” oral evidence to documentary material on title to land. See also: Fosua and Adu Poku V. Dufie (Deceased) and Adu Poku Mensah

 

I am satisfied upon a thorough review of the record of appeal that the Defendant/Appellant failed to sufficiently and satisfactorily prove positive acts of ownership and control over the land, found to be in dispute in this case, with any consistency, from the about 50 years that he alleged that his “ancestor”, Yaw Baah, acquired the land through a supposed reduction of the virgin forest into cultivation, except the very recent act by which the Defendant purported to assert control in or around 2010/2011 when he placed on the land, by way of licence, the hairdresser and Akpeteshie seller which triggered off the instant litigation.

 

That being the case, I am satisfied, on the evidence, that the Defendant failed to satisfactorily establish or prove his claim or defence of acquiescence or the Limitation Act.

 

The Plaintiff’s contention, and the evidence led by him, was to the effect that after acquiring the land in dispute in 1950 his father appointed one Opanyin Suwunkwa as caretaker of the land when he could not build the intended house on the plot and that the said Suwunkwa occupied the plot as a caretaker and also cultivated plantain on the plot for about 50 years until his death, following which his father put his nephew J. B. Mbroah in charge by handing over to him the document covering the land in dispute.

 

The Plaintiff stated further that after his father’s death his family, through his nephew and customary successor J. B. Mbroah gifted the land to him and his siblings and consequently released the document covering the land to him. He testified further that in 2010 heavy rains swept away the plantain on the land and laid the land bare. He said that it was some 6 months after that event that, upon visiting the land, he discovered that the defendant had wrongfully permitted a hairdresser and Akpteshie seller to occupy the land for which he promptly lodged a complaint against the Defendant to the local Chief and also to the Agona Swedru Police.

 

The Defendant’s Lawyer put the following questions to the Plaintiff under cross-examination (page 19)

Q. I am putting it to you that your father’s successor Mbroah made Opanyin Suwunkwa care taker of the land?

A. My lord it was my father himself who appointed Suwunkwa as the care taker of the land

Q. Again your father whiles alive did not appoint Suwunkwa as care taker?

A. My lord my father appointed Suwunkwa as the caretaker

Q. The land in dispute is the family property of the Asona family of Desuenim in Agona Swedru?

A. It belongs to the Asona family who sold it to my father by the Abusuapanyin Kweku Adjei.

 

This last fact was confirmed by PW1 Ebusuapnyin Kwame Atta Boateng.

 

The Defendant through his Lawyer had sought to punch holes in the Plaintiff’s case by pointing at weaknesses in the Plaintiff’s case.

 

For example, Counsel for the Defendant had sought to establish that if the land had originally been acquired by the Plaintiff’s father and his brother then to the extent that there was no evidence that they held a joint tenancy then the Plaintiff’s father’s interest in the land was in the nature of a common tenancy. That being the case, the customary successor of the Plaintiff’s father (who died in 2006) could not validly gift the land to the children of the Plaintiff’s father without taking into consideration the interest of the brother in view of the provisions of the Intestate Succession Law (PNDCL 111).

 

Now, whereas it seems, from the record, that the original joint owner of the plot Kofie Ahur, the brother of the Plaintiff’s father had died, there is no clear evidence as to when he died and whether it was before or after PNDCL 111 was passed. Also, there is no evidence that Kofie Ahur died survived by a wife and/or children.

 

Whatever the case may be, it cannot be accepted in law and equity, as the position seems to be pushed by Counsel for the Defendant, that even if it was technically wrong for the Plaintiff’s father’s family to “purport” to gift the land in dispute to the Plaintiff and his siblings upon their father’s death, that in itself could NEVER entitle or justify a total stranger to the said family, like the Defendant, taking over or having title in the said parcel of land being declared in him. No Court of justice could properly and validly make such a determination or declaration in favour of the Defendant/Appellant herein, in the particular circumstances of this case.

 

If Kofie Ahur had died before 1985 (pre- PNDCL 111) then the land having been jointly acquired by the brothers would have assumed the nature and colour of family property; in which case the family could properly gift it to the Plaintiff and his siblings, as contended by the Plaintiff.

 

On the other hand, if Kofie Ahur died after 1985 and was survived by a wife (wives) and children, the legal burden lay on them and not on the Defendant to fight their battle to uphold their legal rights or interest in the land in dispute.

 

Another perceived weakness of the Plaintiff’s case sought to be thrown up by the Defendant through his legal Counsel is the fact that the Kwa Kwanumanu who appears in Exhibit “A” as joint purchaser of the land in dispute was not the father of the Plaintiff since his alleged customary successor, PW2, Kwame Mbroah referred to him as Kow Nunoo and not Kwa Kwanumanu

 

Any one fairly familiar with our local conditions, especially in the Fanti/Akan arears on the coastline of Ghana would know that in the wake of colonialism and the Christianisation of our communities many local names were virtually bastardised and changed to suit the interest and purposes of the Christian Missionaries or educational authorities. It is therefore not strange that Kwa kwanumanu may have come to be known as Kow Nunoo (which is the surname borne by the Plaintiff).

 

The Plaintiff during cross-examination had stated as follows:

 

“……….. my father married 5 women”

 

See page 19 of the (ROA)

Later, at page 26, Counsel for the defendant elicited the following answers from PW2 (Kwame

Mbroah):

Q. You said the land in dispute is the self-acquired property of Kow Nunoo

A. Yes.

Q. And he died in 2006

A. Yes

Q. The land is at Owane?

A. Yes

Q. You are the customary successor?

A. Yes.

Q. He died intestate not correct

A. Yes.

Q. He was survived by a wife and children, including Plaintiff?

A. Five wives and 16 children.

 

There can, therefore, be no doubt that Kow Nunoo was the same person known as Kwa Kwanumanu (the Plaintiff’s father).

 

Another “weakness” urged by Counsel for the Defendant/Appellant is the fact that Exhibit A is not a registered document. The trial Court firmly established that it was duly registered. I have no reason to set aside that finding of fact by the Learned trial judge. That being so, I am equally unable to fault the trial judge when she relied on Exhibit “A” in her determination of the case.

 

In any event, were all the purported weaknesses in the Plaintiff’s case as disclosed by Counsel for the Defendant/Appellant, valid and true that would still not entitle the Defendant to judgment by way of a declaration of title to the land in dispute in his favour Defendant if the defendant failed to lead strong and positive evidence to tilt the balance in his favour on the preponderance of probabilities. The trial Court found and held that the Defendant had produced no such strong proof to establish his case and thereby gain the favour of a judgment on his behalf.

 

It is my considered opinion that the trial Circuit Court had done nothing wrong in dismissing the Defendant’s counter-claim and entering judgment in favour of the Plaintiff.

 

Finally, another important matter introduced by the defendant is the judgment, Exhibit 1, upon which he sought to raise and rely on estoppel against the Plaintiff.

 

Obviously, that was not a judgment of merits that decreed title in the Defendant. Besides, and more importantly, it does not conclusively establish that the plaintiff and his siblings or the maternal family of the Plaintiff’s father, who gifted the land in dispute to the Plaintiff and his said siblings, were a party to the said District Court case; nor were they demonstrated, positively, to have known about the pendency of the said case and failed or neglected to join and fight the said case leading to judgment being entered in the defendant/appellant’s favour.

 

From the foregoing, and on the basis of the evidence on record I am reasonably satisfied that the trial Circuit Court was sufficiently justified in finding for and entering judgment in favour of the Plaintiff and, consequently, in dismissing the defendant’s counter-claim.

 

In the event, I find no difficulty at all in unhesitatingly dismissing the defendant/appellant’s appeal in its entirety as being without merit.

 

Accordingly, the judgment or decision of the Agona Swedru Circuit Court, dated 15th September, 2015 is hereby affirmed.

 

 

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