EMELIA BOATEMAA vs. MAAME BENEWAA & PINAMANG
  • IN THE SUPERIOR COURT OF JUDICATURE
    IN THE COURT OF APPEAL
    KUMASI - A.D 2017
EMELIA BOATEMAA - (Plaintiff/Appellant)
MAAME BENEWAA AND PINAMANG - (Defendants/Respondents)

DATE:  21ST DECEMBER, 2017
CIVIL APPEAL NO:  H1/47/2017
JUDGES:  E. K. AYEBI (PRESIDING) JA, GERTRUDE TORKORNOO (MRS.) JA, ANGELINA M. DOMAKYAAREH (MRS.) JA
LAWYERS:  KWAME ADOFO FOR PLAINTIFF/APPELLANT
THEOPHILUS ACKOM BOADU FOR DEFTS/RESPTS
JUDGMENT

AYEBI, JA

This is an appeal against the judgment of the Circuit Court, Kumasi dated 31st March 2015.

At the Circuit Court, the plaintiff/appellant sued the defendants/respondents for:

(a) A declaration of title and ownership of Plot No. 31A Blk C, Sokoban, Kumasi.

(b) Recovery of possession

(c) Perpetual injunction restraining the defendants his (sic) agent, assigns and workmen and persons claiming through him (sic) from interfering with the property in dispute.

 

In the statement of claim in paragraph 3, the 2nd (sic) plaintiff contended that she acquired plot number 3/A Blk G Sokoban, Kumasi measuring 70”, 40”, 80”, 50”, 70” from one WOFA YAW. Then in paragraph 7 and 8 the plaintiff/appellant stated the reason why she sued the defendants/respondents as:

 

Paragraph 7:   The plaintiff went into undisturbed possession and started developing the land.

 

Paragraph 8:         The plaintiff says that without any provocation the 1st defendant has sold portion of her land and portion of the main road to the 2nd defendant who is busily developing same.

 

Further in paragraph 10, the plaintiff asserted that “the 1st defendant does not have the capacity to alienate the land in dispute to the 2nd defendant as she was even instrumental when the plaintiff was acquiring the land.

 

From the record, defendants/respondents entered appearance to the writ of summons themselves. They also filed their statement of defence by themselves. In denying the claim of the plaintiff/appellant, the 1st defendant/respondent asserted positively that the plot the plaintiff claims never belonged to her. She explained that the plot originally belong to one Zinabu upon whose instruction she sold it to the 2nd defendant who was interested in it. On her part, 2nd defendant asserted that she had never had any confrontation with the plaintiff on the plot and claimed solely ownership of the plot.

 

The pleadings and the evidence of the parties show common grounds of agreement on material facts which if they were properly assessed, the suit would not have been launched at all by counsel for the plaintiff. In the first place both plaintiff and 2nd defendant bought half of plot No. 31A Blk G. The two halves were separated by a footpath. Originally, the full plot was owned by Wofa Yaw, now deceased, brother of the 1st defendant.            While plaintiff bought her half plot directly from Wofa Yaw as per her Exhibit A, the Statutory Declaration, the 2nd defendant acquired her share from Zinabu who also originally acquired it from Wofa Yaw.

 

Further to that, as stated by the plaintiff and the 2nd defendant, the 1st defendant was instrumental in the acquisition of the plot by each of them. For it was the 1st defendant who led the plaintiff to the plot, showed her the boundaries and collected the purchase price on behalf of Wofa Yaw, her brother. Similarly, it was the 1st defendant who advertised the sale of the plot on behalf of Zinabu, led 2nd defendant to the plot when she showed interest, showed her the boundaries and collected the purchase price on behalf of Zinabu.

 

But the first to acquire her plot was 2nd defendant in 2003 while the plaintiff acquired her portion in 2005. Before the 2nd defendant started the construction of her building, she had cultivated the plot with plantain which she has been harvesting before the plaintiff’s complaint of encroachment on her land and the road. On her part, it would appear the plaintiff started a building straight away on her portion.

 

On these undisputed facts, in particular the following issues were raised for determination by the trial court;

(i) Whether or not the land in dispute was granted to the plaintiff by Wofa Yaw.

(ii) Whether or not the 2nd (sic) defendant was instrumental when the plaintiff was acquiring her land.

(iii) Whether or not Benewaa (1st def.) showed the boundary of the plot to the plaintiff in the presence of witnesses.

(iv) Whether the land was given to the plaintiff before the 2nd defendant (sic) sold same to the 1st defendant (sic).

(v) Whether or not the land in dispute belongs to the plaintiff.

(vi) Any issue or issues raised by the pleadings.

 

The trial judge in her judgment analyzed the evidence in relation to each of the issues raised and other related or collateral matters. She came to the conclusion that the plaintiff had not been able to discharge the burden of proof on the preponderance of probabilities that 2nd defendant has encroached on her land. She held the opinion that the parties are on their respective lands granted to them by Wofa Yaw. Consequently, she dismissed the plaintiff’s claim.

 

The plaintiff appealed against the judgment on four grounds. They are that:

(i) The judgment is against the weight of evidence adduced at the trial.

(ii) The learned trial judge erred in law when she held that because the plot number stated on the writ of summons (31A Blk C, Sokoban) differs from the plaintiff’s evidence and documents tendered in evidence, the identity of the land was in issue.

(iii) Her Honour, erred in failing to find that the identity of the land in dispute was not in issue despite it not being endorsed on the writ of summons.

(iv) Her Honour erred when she ignored the evidence of the plaintiff’s witness who was a material witness.

 

In arguing the grounds of appeal, counsel for the appellant abandoned grounds (iii) and and made a lame submission on ground two. In arguing ground (i) that the judgment is against the weight of evidence, counsel went back to ground (iv) which is that the court erred when it ignored the evidence of plaintiff’s witness who was a material witness as the substance of his submission.

 

In explaining what ground (i) of the appeal means, the counsel for appellant quoted Djin vrs Musa Baako [2007/08] SCGLR 686 which stated at holding 1 that:

 

“Where (as in the instant case), an appellant complains that a judgment is against the weight of evidence, he is implying that there were certain pieces of evidence on the record which, if applied in his favour could have changed the decision in his favour, or certain pieces of evidence have been wrongly applied against him. The onus is on such an appellant to clearly and properly demonstrate to the appellate court the lapses in the judgment being appealed against”.

 

See also Margaret Mary Adjei vrs The Attorney-General & Others [2012] 50 GMJ 198, CA.

 

The evidence of PW1 relied on by counsel for the appellant is to the effect that she was in the company of the plaintiff/appellant when the 1st defendant/respondent led them to the plot and identified the boundaries of the land to them. She asserted that the plot belongs to the plaintiff/appellant and not the 2nd defendant/respondent. The swift answer on behalf of the 2nd defendant/respondent is that analytically, the evidence of PW1 is wholly immaterial to the issues in controversy particularly whether or not the anthill was on plaintiff/appellant’s or 2nd defendant/respondent’s plot. Apart from that counsel submitted that PW1’s evidence contradicted the plaintiff/appellant’s evidence and rather corroborated the evidence of the defendants/respondents. For that reason, the failure of the trial judge to consider it has not occasioned any miscarriage of justice of the plaintiff/appellant.

 

I shall say more on the evidence of PW1 in the concluding part of this opinion in the relation to the ground (1) of appeal under consideration. Since every appeal in by way of rehearing the suit, I want to do an elementary exercise by drawing attention to the trial judge’s analysis of the issues raised in the application for direction.

 

Issue 1 – whether the land in issue was granted to the plaintiff by Wofa Yaw.

 

At page 83 of the record of appeal, the trial judge stated:

 

“Considering the evidence of the parties there are two plots of land respectively belonging to the plaintiff and the 2nd defendant both claiming title through Wofa Yaw. From the evidence of the 1st defendant which was not denied by the plaintiff and the 2nd defendant, there is a footpath that separates the two plots. The land in dispute is the land occupied by the 2nd defendant which the plaintiff claims to have been hived off from her land. It is thus imperative on the part of the plaintiff to prove that the particular portion of the land forms part of her land. In determining the issue at stake, it is quite clear that Wofa Yaw made grants of his plots, to the plaintiff and Zinabu who in turn sold hers to the 2nd defendant”.

 

Issue 2 – Whether the land was given to the plaintiff before the 2nd defendant (sic) sold same to the 1st defendant.

 

This issue should properly read “whether the land was given to the plaintiff before the 1st defendant sold same to the 2nd defendant. And page 84 of the record of appeal, the trial judge stated:

 

“As has already been stated, the 1st defendant has stated that there were two plots belonging to Wofa Yaw separated by a footpath and that these plots were sold to the plaintiff and Zinabu respectively. According to the 1st defendant, the 2nd defendant was first to acquire hers. The plaintiff states that she bought her land in 2005 whilst the  2nd  defendant  states  that  she  bought  hers  in  2003. This evidence went unchallenged by both parties. According to the 2nd defendant, after purchasing the plot, she cleared it and cultivated plantain. At the time, she never saw the plaintiff and even though she had been harvesting the plantains no one challenged her on the land. I can accept the evidence for the 2nd defendant that she was first to acquire her land and therefore could have been coming unto the land unchallenged”.

 

Main issue – whether or not the land in dispute belongs to the plaintiff.

The trial judge before coming to a conclusion on this issue, determined the role of the 1st defendant in the acquisition of the respective plots by the plaintiff and 2nd defendant and the position or ownership more or less of the anthill. Starting from page 85 to 87 of the record of appeal, the learned trial judge observed that:

 

Role of 1st defendant/respondent:

From the evidence led by the parties and their witnesses, it is quite clear that the 1st defendant was quite instrumental in the sale of Wofa Yaw’s plots to the plot (sic) and 2nd defendant. The plaintiff stated that she bought the land from Wofa Yaw and it was 1st defendant who showed her the boundaries of her land. This fact was also corroborated by the witness of the plaintiff. The 2nd defendant also stated that she bought her land from one Zinabu through 1st defendant. This fact was not denied by the plaintiff. The evidence of the 1st defendant is then important in the determination of the issue at stake. ….

 

Evidence of 1st defendant/respondent:

According to the 1st defendant, it was Zinabu who originally acquired the plot from Wofa Yaw. Three years after the acquisition of the land, her brother Wofa Yaw informed her that Zinabu was offering the land for sale. The land was sold to the 2nd defendant. At the time of the sale of the land to the 2nd defendant, there was an anthill on the land. Subsequently, the plaintiff dug the anthill on the land of the 2nd defendant. Later, the plaintiff reported the matter to officials of Kumasi Metropolitan Assembly. ….

 

At the site, the officials of KMA confirmed that her land was not in the road but that the road ran in front of it. The KMA officials then advised them (the plaintiff and 2nd defendant) to continue with their respective constructions. The 1st defendant corroborated this evidence saying that the KMA invited her to testify on the boundaries of both the plaintiff and 2nd defendant’s land. They then added that the road lay in front of the 2nd defendant’s land ……

 

If that is the case, land I so find, then 2nd defendant could not have trespassed unto the plaintiff’s land as she would have had to trespass unto the road first before getting unto the plaintiff land. As had already been stated, there was a footpath separating the two plots that belonged to Wofa Yaw which he sold to the plaintiff and Zinabu …..

 

I therefore accept the evidence of the 1st defendant that at the time the land was being sold to Zinabu, there was an anthill on the land and by necessary implication the anthill is on the 2nd defendant’s land”.

 

Concluding, the trial judge at page 88 of the record of appeal stated:

“As to whether or not the plot in dispute belongs to the plaintiff, my answer is no. considering the fact that the 2nd defendant could not have trespassed unto the plaintiff’s land without encroaching unto the road, and also to the fact that the 2nd defendant was first to occupy her land, I hold the opinion that the plaintiff has not been able to discharge the burden of proving on a preponderance of probabilities that the 2nd defendant has encroached on her land. I hold the opinion that the parties are on their respective lands granted to them by Wofa Yaw. In the circumstances, the plaintiff’s action fails and it is so dismissed”.

 

It is common knowledge that the duty of the court is to resolve the issue(s) in controversy between the parties. It is therefore the burden duty of the trial judge to not only discern the key issues in controversy between the parties but also to resolve the primary facts. In Quaye vrs Mariamu [1961] GLR 93, SC, it was held that it is the duty of the trial judge to resolve the primary facts and having done so to state the findings and apply the law. having reviewed the judgment of the trial court as a function of rehearing, issue by issue, we have no hesitation to hold that the trial judge had competently discharged the duty cast on her as arbiter.

 

We have no basis to disturb her findings and conclusions. What I do now is just to comment on the counsel for plaintiff/appellant’s submission on the identity of the land and that the failure of the trial judge to consider the evidence of PW1 is “a jurisdictional error of law”. The two submissions are not tenable in either case law or statutory law.

 

The claim of the plaintiff/appellant as endorsed on the writ of summons is for declaration of title and ownership to Plot No. 31A Block C, Sokoban-Kumasi, recovery of possession and an order of perpetual injunction. In paragraph 8 of the statement of claim, it is clear that the alleged encroachment on a portion of this land by the 2nd defendant is the basis of plaintiff/appellant’s claim. However, in describing the plot in the statement of claim, the plaintiff/appellant gave the number of plot as 3/A Block G, Sokoban Kumasi, measuring 70”, 40”, 80”, 50”, 70” (I think the double marks against the figures is the abbreviated form of inches and not feet). The plaintiff/appellant gave no other description or identity in her evidence.

 

The trial judge rightly noted this difference in the description of the identity of the plot as either situated in Block C or G. It is the submission of counsel for the plaintiff/appellant that the trial judge erred in law in holding that the identity of the land is in issue because the identity of the land is known and for that matter not in doubt. It appeared to me that counsel for plaintiff/appellant never cared a pesewa about the correctness of what he put on paper and place before the court under his signature. If it is a mistake on his part to state that Plot No. 31A is on Block G and not Block C as endorsed on the writ of summons, there are several other such mistakes in his pleadings. In particular, he attributed 1st defendant’s role to the 2nd defendant and vice versa. Even the defendant/respondents who filed their own pleadings did not make such elementary mistake.

 

If counsel for plaintiff/appellant were a serious and a diligent practitioner, he would have applied to the court to amend the Block in which Plot No. 31A is situated. I am appalled that in this appeal, counsel has faulted the trial judge when she stated that the identity of the land is in issue instead of the truth. This is because in his address at the trial court, he quoted Djin vrs Musa Baako [2007/08] SCGLR 686 where the court held that in a claim for declaration of title to land, the burden of proof and persuasion remained on the plaintiff to prove conclusively on a balance of probabilities, the boundaries or identity of the land which he is claiming a declaration of title and perpetual injunction.

 

Indeed, it is common knowledge of hallowed antiquity held by the court that a plaintiff seeking a declaration of title to land and other reliefs must establish the identity of the land satisfactorily according to law so as to entitle him to the reliefs. The onus of proof required by law as regards the identity of the land would be discharged by meeting the conditions clearly stated in this court’s decision in Tetteh vrs Hayford [2012] SCGLR 417 citing the case of Kwabena vrs Atuahene [1981] GLR 136 thus: (i) the plaintiff has to establish positively the identity of the land to which he claimed title the subject-matter of the suit; (ii) plaintiff also has to establish all his boundaries; and (iii) where there is no properly oriented plan drawn to scale which made compass bearings vague and uncertain, the court would hold that the plaintiff had not discharged the onus of proof of his title.

 

It is acknowledged as held in Agbosu & Ors. vrs Kotey & Ors. [2003/05] 1 GLR 685, where the identity or boundaries of the land claimed was undisputed, it is not mandatory for the plaintiff to so prove the identity of the land positively. In this case, the 2nd defendant gave evidence that the area where their plots are situated has not been zoned and demarcated by the Town and Country Planning Department yet. It is for this reason that, the trial judge attached no weight and probative value to the unsigned and undated site plan, Exhibit B tendered by the plaintiff/appellant as it infringed the Survey (Supervision and Approval of Plans) Regulations, 1989, L.I. 1444. And on the particular facts of this case but for the evidence of the 1st defendant/respondent that the plaintiff/appellant and 2nd defendant/respondent bought half plot respectively and that a footpath separates them, the court would have been hard put to know that they share a common boundary. So if it is agreed that the plaintiff/appellant bought half of the plot No. 31A and 2nd defendant/respondent also bought half of plot No. 31A, and the plaintiff/appellant has accused the 1st defendant/respondent of selling a portion of her land to the 2nd defendant/respondent, it is imperative that the plaintiff/appellant proves positively the identity and boundaries of the plot shown to her by the 1st defendant/respondent.

 

As identified by the trial judge based on the plaintiff/appellant’s plea in paragraph 8 of the statement of claim, the plaintiff/appellant’s claim is in respect of only a portion of her land which the 2nd defendant/respondent has encroached upon. It is implied in that claim/complaint that the 2nd defendant/respondent had crossed the boundary between them into a portion of plaintiff/appellant’s land. In that case, to satisfy the court that the

1st defendant/respondent had aided the 2nd defendant/respondent to encroach upon her land, the plaintiff/appellant should have described with certainty the boundary been them and prove it on the preponderance of probability. In Gawu III vrs Ponuku [1960] GLR 101, Ollennu J (as he then was) held:

 

“To succeed in an action for declaration of title to land and recovery of possession, a plaintiff must establish positively the identity of the land he is claiming and where (as in this case), he admits that his land forms boundary with land belonging to the defendant he must establish clearly the boundary between his land and the land which he admits is the property of the defendant, and show that the land in dispute is on the side of that boundary”.

 

The findings of the trial judge showed that the plaintiff/appellant failed to show that the land in dispute which appeared to be the area the anthill is situated is on her side of the boundary. It is on record that it was the plaintiff/appellant who reported the activities of the 2nd defendant/respondent to the Land Division of the Kumasi Metropolitan Assembly (KMA). She said the KMA official wrote stop work on 2nd defendant/respondent’s building and then restrained both of them. The plaintiff/appellant however failed to tell the court how the KMA official resolved finally her complaint against the 2nd defendant/respondent.

 

But the two defendants stated the same conclusion of the KMA official investigations. The 1st defendant/respondent said she was invited and she gave evidence of the boundaries of the land. As the common grantor of the plots of the land to both parties, the 1st defendant/respondent is no doubt a material witness – see Bruce vrs Quanor [1959] GLR 292.  Both defendant/respondents stated that the KMA official found and established that a road lay in front of the 2nd defendant/respondent’s land and that she had neither encroached nor claimed it. According to the defendants/respondents, the KMA upon that finding asked the two fending parties to continue the development on their separate portions. The road the KMA official found in front of 2nd defendant/respondent’s land thus confirmed the 1st defendant/respondent’s evidence that a footpath separated the two plots sold to the plaintiff/appellant and 2nd defendant/respondent. The trial judge’s finding that the 2nd defendant/respondent had not encroached upon and could not have trespassed onto the plaintiff/appellant’s land without crossing the road is amply supported by the evidence on record and is thus justified.

 

Further, there is evidence that while the 2nd defendant/respondent acquired her plot in 2003 from Zinabu, the plaintiff/appellant acquired her portion directly from Wofa Yaw through 1st defendant/respondent in 2005.  And from the unchallenged evidence of the 2nd defendant/respondent, she had since the acquisition of her portion of the land been in effective possession. So if anybody should complain of encroachment on her land, it should be the 2nd defendant/respondent who was first in time and not the plaintiff/appellant who was later in time. For by customary law which is applicable in this case, where a person is in possession of land and another person later acquires and occupies the adjoining land, the boundary of the land of the person already in possession becomes the common boundary between them. This is because nobody can unilaterally fix a common boundary between his land and that of an adjoining land owner – see Vanderpuije vrs Adam [1961] GLR 733.

 

Over and above, is the location and for that matter the ownership of the anthill. DW1, 2nd defendant/respondent’s vender was emphatic that the anthill was on the portion of the plot she bought from Wofa Yaw and it was still on the plot when she sold it to the 2nd defendant/respondent is that the plaintiff/appellant trespassed on 2nd defendant/respondent portion of the land and dug the anthill. Naturally, that act of trespass led to a confrontation between them. It is said that plaintiff/appellant demanded the cost of digging the anthill from 2nd defendant/respondent and rightly she refused to pay. It is clear from the evidence of the 1st and 2nd defendants/respondents the confrontation over the digging of the anthill infuriated the plaintiff/appellant to complain to the KMA officials that the 2nd defendant/respondent has encroached upon the road and then her land.

 

I noticed that the plaintiff/appellant herself never mentioned the anthill in her evidence.

 

It is must be deliberate. The trial judge has however inferred that by requesting the 2nd defendant/respondent to pay for the cost of the demolition of the anthill, and subsequently withdrawing her workers from that location, plaintiff/appellant had conceded that the anthill was not within her portion of the land she acquired. That inference is justified because there is sufficient evidence in support of it. This is also one of the reasons why the trial judge held that the plaintiff/appellant had failed to prove her claim on the preponderance of probabilities and we agree with her.

 

Despite the view we hold that it is imperative for the plaintiff/appellant to prove the identity of the land she claimed in order to succeed which proof the trial judge rightly found was absent, that failure to prove the identity of the land is not the overall basis for dismissing the plaintiff/appellant’s claim. The trial judge was unable to uphold the plaintiff/appellant’s claim because at page 9 of the judgment (which is page 88 of the record of appeal) she stated that “considering the fact that the 2nd defendant could not have trespassed unto the plaintiff’s land without encroaching unto the road and also the fact that the 2nd defendant was first to occupy her land; the plaintiff had failed to discharge the burden of proof on her.

 

However, in the submission of the plaintiff/appellant, at page 3, her counsel has displayed a clear case of misapprehension of the law on proof of a relief endorsed on the writ of summons and adduction of evidence or availability of evidence on the record in support of a relief which should have been claimed but was not claimed on the writ of summons. Contending that the trial judge erred in stating that the identity of the land is in issue, counsel relied on the case Owusu & 2 Ors. vrs Hydroforms Estate Ltd. [2014] 78 GMJ 36, in which Anin Yeboah JSC cited with approval the case of Hanna Asi (No.2) vrs Gihoc Refrigeration and Household Products Ltd. (No.2) [2007/08] SCGLR 16 and held that:

 

“If the respondents had proved their title to the disputed land but had not endorsed the writ with the relief borne out by the evidence on record substantial justice would have permitted this court to grant the relief …”.

 

We at once dismiss the submission of counsel for the plaintiff/appellant based on the authority cite4d in support and dictum of our learned senior brother not because it is not good law but because it is most inappropriate to the facts of this case. There is a world of difference between failure to endorse the appropriate relief on the writ of summons or failure to properly describe the subject-matter of the claim in the writ of summons and the existence of evidence on the record which appropriately supports a relief a party should have been entitled to but has not been claimed.

 

The last comment I wish to make is the submission that the failure by the trial judge to consider the evidence of PW1 is a jurisdictional error. We note that counsel for the plaintiff/appellant did not state in what way/sense the failure to consider the evidence of PW1 amounted to a jurisdictional error. The submission was just made and left ajar. It is an outrageous submission. In the case of Ghana Bar Association vrs Attorney-General & Or. (Abban Case) [2003/04] SCGLR 250, Bramford-Addo JSC at page 266 said:

 

“Jurisdiction is simply the power of a court to hear and determine a cause or matter brought before it, lack of which render any decision taken or order made null and void and of no effect. If jurisdiction is granted by statute, then what is already specified therein determines the nature and extent of that jurisdiction so granted to that court which cannot be extended or modified. Where jurisdiction is wrongly assumed, however, all proceedings taken would be a nullity. For this reason, it is the court’s duty to act only within the jurisdiction with which it has been clothed”.

 

In the same case, Kpegah JSC at pages 284 and 285 quoted from Stroud’s Judicial Dictionary (5th Edition) at page 1379 and said as follows:

“In a technical sense, when one is considering whether a properly constituted court has jurisdiction or not, one cannot resolve this issue without necessarily relating to:

(a) The parties in dispute, i.e. whether the court has jurisdiction over them;

(b) The subject-matter of the dispute – whether it is one which falls within its jurisdiction;

(c) The relief being sought, i.e. whether the said court can grant the relief the plaintiff is seeking; and lastly,

(d)Territorial limitations”.

 

One or a combination of any of these factors can very well assist in determining whether a court has jurisdiction in the matter or not. The failure of the trial judge to consider or take into consideration the evidence of PW1 did not violate any of the above issues so as to amount to a jurisdictional error in whatever sense counsel perceived jurisdiction. The trial Circuit Court had not also violated its jurisdiction as conferred on it in section 40 of the Courts Act, 1993 (Act 459) as amended. That apart, the evidence of PW1 did not help resolve the boundary dispute between parties since she did not know in whose portion of the land the anthill is located.

 

In the premises we find absolutely no merit in this appeal because the judgment is amply supported by the weight of evidence. We affirm the judgment and dismiss the appeal.