IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL
CAPE COAST - A.D 2017
JOSEPH ANSAH DANSO, STEPHEN AMAKYE LARTEY AND REV. SAMUEL ABOA - (Plaintiffs/Respondents)
NANA MENSAH ATTAKORAH II - (Defendant/AppellantT)
DATE: 30TH OCTOBER, 2017
SUIT NO: H1/19/2016
JUDGES: HONYENUGA JA (PRESIDING), GYAN JA, SUURBAAREH JA
MR. RAYMOND BUGNABU FOR THE DEFENDANT/APPELLANT
NANA AMA PANYIN AMOAH FOR THE PLAINTIFFS/RESPONDENTS
SAEED K. GYAN, JA
I should begin by stating that the Courts are in recent times firmly turning their back against sterile technicalities in the pursuit of substantial justice. Therefore, sophistry cannot be suffered to find an honourable space in the hallowed corridors of justice in our contemporary times.
This appeal seems to me to be a classical example of where a party seeks to stand justice on its head by encouraging the Court to enable the party to eat its cake and have it.
Any attempt to primitively strip delicate Femme Justice naked ought to be resisted, or at least discouraged so as not to pollute the stream of justice and hence bring the Courts into public disrepute and odium.
Some eighty or so years ago, a group of brave and adventurous men from the Akwapim Hills in the now Eastern Region of Ghana set off to the Western Province of the Gold Coast in search of the Golden fleece of large, fertile virgin land. In that adventure, they formed themselves into loose groups, characterised as syndicates, to buy as much land as they could possibly obtain from the Chiefs and Elders of that part of the Gold Coast.
Relevant to the instant case were the groups which came to be referred to respectively as Atakora & Co; Otu Bekoe & Co. and Kwaku Krow & Co. Arguably, the spear-head or “Captain” of this land buying expedition was one G.S.O. Atakora, who was later called Nana Atakora Koi III. At the time of the acquisition he was said to be the “secretary” of the three syndicates, having been a school teacher.
The persons now engaged in the controversy which had led to the litigation from which the instant appeal has emerged are descendants or persons who otherwise claim their right, title or interest to the original members of the aforesaid land buying expedition, who unlike their forebears, have apparently been unable to keep to that sense of brotherhood, singleness of purpose and common understanding which facilitated the ancient procurement of the land, the subject matter in dispute.
The immediate trigger of the instant litigation, which started at the High Court, Sekondi, however, touches or turns on the huge sum of ¢790,000, 800.00 being compensation allegedly claimed by the Defendant and paid to him in respect of a portion of the large tract of land which was apparently procured by the land purchasing syndicates, referred to earlier in this judgment, in the Wassa Traditional Area of the Western Region.
The complaint of the Plaintiffs was that the Defendant had blissfully ignored the collective character of the land in respect of which he had personally put in a claim for compensation, and that, having received or been paid the compensation, he was applying the proceeds of the compensation to his exclusive use and profit to the exclusion and detriment of the other persons who had an interest in and right to the land, which said land became the subject of a compulsory acquisition by the State for the purpose of setting up the Benso Oil Palm Plantation. It was the case of the Plaintiffs that the Defendant had without reference or regard to them, as persons having an interest in the land, clandestinely applied for and obtained the compensation which is the subject of the instant litigation.
It was the further contention of the Plaintiffs that the land mass which constituted the sum total of the acquisitions made and held by the Akwapim land purchasing syndicates in the Wassa Area was the subject of an earlier suit commenced at the High Court, Accra, and which ended at the Court of Appeal, between the predecessors/privies of the present parties. It is the position of the Plaintiffs that their predecessors in title and interest had won the said Accra High Court suit against the current Defendant and his late father, which judgment was affirmed by the Court of Appeal.
According to the Plaintiffs, the High Court had made a determination to the effect that the land acquired by the syndicates had been jointly done and, accordingly, was the collective property of the original purchasers of the land and that the Court had further made an order that the said land should be shared among the successors in title of the original members of the land purchasing syndicates in proportion to their respective financial contribution to the purchase.
The Plaintiffs maintained that, despite the decision and orders of the Accra High Court, affirmed by the Court of Appeal, the Defendant had, like his father before him, continued to hold himself out as the exclusive owner of all the land, the subject matter of the Accra High Court suit and judgment, and that it was that attitude and mindset of the Defendant which had informed his decision to exclusively apply for and to covet the compensation in connection with a portion of the larger land which the Accra High Court had previously determined to be jointly or collectively owed by the land buying syndicates aforesaid.
It is for this reason that, being aggrieved by the attitude and conduct of the Defendant, the Plaintiffs issued the writ at the Sekondi High Court against the Defendant claiming the following reliefs, namely:
“ 1) A declaration that the Defendant is not entitled to keep to himself compensation paid to him for portions of land acquired from the joint property of Otu Bekoe & Co.; Kwaku Krow & Co. and Atakora & Co.
2) An order directing the Defendant to pay all monies received as compensation to be shared among Otu Bekoe
Co., Kwaku Krow & Co. and Atakora & Co.
3) Interest at the current bank rate on all monies found to have been received by the Defendant as compensation from the date of receipt to the date of payment.”
In response, the Defendant first attacked the capacity of the Plaintiffs to institute their action, maintaining that they have no capacity to mount the suit.
The Defendant contended further that sometime after the syndicate had acquired the land a serious controversy ensued when the colonial government sought to acquire the land to establish a forest Reserve, whereupon all the other members of the original syndicates chickened out and left his predecessors in title (his father’s father) to fight the government all alone with the result that he had to spend as much as £700,000.00 in doing so.
The Defendant maintained further that, in the end, all the other members of the syndicates, except his grandfather, lost not just interest in the land originally acquired by them but, practically, also their right and title to the land acquired since they showed neither interest, nor did they have the financial muscle to contribute to the battle to save their land. The Defendant stated that it is because the other members of the original syndicates had lost their right, title and interest to the land, originally acquired by the syndicates, that when later on the land was being compulsorily acquired and a public notice to that effect was given asking for claims for compensation to be made, the successors in title of the original syndicate members failed to apply for the compensation, knowing that they had no land available for which they could validly or properly claim compensation. The Defendant contended further that in any event, the land in respect of which he applied for and obtained compensation fell within the lands acquired by his predecessors in title, namely Attakora & Co. and was completely outside the land collectively acquired by the syndicates.
The Defendant contended also that he had not claimed the compensation in the name of any group and that, in any event, he had applied a portion of the compensation received in partial settlement of the £700,000.00 which his grandfather and his predecessor in title had expended in fighting for the land; accordingly, the Plaintiffs had no interest in the compensation paid or received by him,
No counter-claim was filed by the Defendant.
The trial High Court heard oral testimony in proof of the issues settled at the directions stage. The issues settled appear on page 10(a) of the record of Appeal (ROA), which were:
Whether or not the land in respect of which the Plaintiff (sic) claimed compensation has been adjudged to be for the group rather than the Defendant.
Whether or not the Plaintiffs have capacity to sue.
Whether or not the Plaintiffs are entitled to their reliefs
Any other issues arising from the pleadings.
The trial High Court Secondi, gave judgment in favour of the Plaintiffs granting them the reliefs indorsed on their writ namely:
A declaration that the Defendant is not entitled, to keep to himself compensation paid to him for portions of land acquired from the joint property of Otu Bekoe & Co. Kwaku Krow & Co. and Atakora & Co.
An order directing the Defendant to pay all monies received as compensation to the Plaintiffs for same to be shared among Otu & Co., Kwaku Krow & Co. and Atakora & Co.
Interest at the current bank rate from the date of receipt to the date of payment.
Being dissatisfied with the judgment of the trial High Court, Secondi, the Defendant lodged the instant appeal.
The following grounds of appeal found on page 206 of the ROA, were filed namely;
i) The judgment is against the weight of the evidence.
ii) The trial judge erred in law when he accepted and relied on oral evidence which contradicted documentary evidence tendered in Court without an explanation for disbelieving the documentary evidence which was tendered by the same witness who gave the oral testimony.
iii) The trial judge erred in law when he failed to realize that the decision of the Court of Appeal regarding the ownership of the lands constituted issue estoppel binding on the parties and the Court in this case and as much cannot be put aside in preference for conflicting oral testimony.
iv) The trial judge committed an error of law when he failed to accept and uphold the Defendants right in law to plead alternative defences to the case of Plaintiffs.
v) The trial judge committed an error of law when he placed a burden on the defendant to prove matters that had been pleaded and referred to in the evidence of Plaintiffs
vi) The trial judge erred in law when, despite holding that the land in respect of which the compensation was paid belonged to Kwaku Krow & Co. he never the less gave judgment for Plaintiffs including Otu Bekoe & Co. who by his finding have no interest in the land.
vii) The trial judge erred in law when he failed to uphold and apply the legal principle stipulated by Akuffo Ad JSC in Banahene V Hima (1963) 1GLR 323 to the effect that where there is Dichotomy of interest and Plaintiffs bring a representative action, the suit is incompetent, which was the case in this suit.
The relief sought by the Defendant/Appellant (hereafter referred to as Defendant or Appellant) was simply to the effect that the judgment of the High Court be set aside, and no more.
No further additional grounds of appeal were filed or urged.
The Plaintiffs/Respondents (hereafter referred to simply as Plaintiffs or Respondents), following the notice of appeal lodged by the Defendant, on their part, filed a notice of intention to seek a variation of the judgment to the effect, specifically, that judgment be entered for the Plaintiffs in respect of all the reliefs claimed and indorsed on their writ of summons, on the ground that the trial judge did not exactly so pronounce or order in the concluding part of the judgment appealed against (see page 215 on the ROA) .
The Appellant, through his Lawyers, in his written submission argued the grounds of appeal in the order set out in his notice of appeal.
I have examined the record of appeal thoroughly and considered counsels’ respective legal submissions.
It is my respectful and considered opinion that the instant appeal falls within a narrow compass. Therefore, I may not need to follow seriatim the order or narrative as presented by Counsel in the determination of the instant appeal.
Counsel for the Defendant/Appellant first argued the omnibus ground of appeal, namely, that the judgment was against the weight of evidence led at the trial.
Counsel, in my view, properly and rightly set out the general principles of law enunciated and pertaining to this ground of appeal, citing judicial authorities such as: Tonad Enterprises & Ors Vrs.
Chou Sen Lin. (2007-2008) SCGLR 135; Aryeh and Akakpo V. Ayaa Iddrisu (2010) SCGLR 891; Kofi Antwi V. Vrs. Ayaa Idrisu (2010) 26 GMJ151 etc. to the effect that the omnibus ground of appeal mandates and enjoins the appellate tribunal to examine the record in its entirety, taking into consideration both the oral and documentary evidence or material placed before or available to the Court and to assess or analyse all such material before coming to its own conclusion as to whether or not the findings, decision or judgment appealed against could be justified or sustained in fact and/or in law, on the basis of the record of appeal.
It is equally significant to emphasise the point or legal principle that where an appellant charged that the judgment of the Court below was against the weight of evidence there was a presumption that the judgment of the Court below on the facts was correct and consequently, the appellant in such a case assumed the burden of showing from evidence on record that the judgment was indeed against the weight of evidence. See: Ampomah V. Volta River Authority (1989-90) 2 GLR 28 CA; Quartey V. Quartey (1991)1GLR 248.
All this is of Course premised on the legal proposition, which has firmly found statutory support in Rule 8(1) of the Court of Appeal Rules, 1997 (C.I. 19) to the effect that any appeal to the Court shall be by way of rehearing. Ref: Tuakwa V. Bosom (2001-2002) SCGLR 61; Djin V. Musa Baako (2007-2008) 1SCGLR 689 and Akuffo Addo V. Catheline (1992) 1 GLR 372.
The heart of the appellant’s submission, based on his first ground of appeal to the effect that the judgment was against the weight of evidence, was that there had been an earlier judgment by the High Court, Accra, which was tendered in evidence as Exhibit “C” in the Court below and involving the parties herein and their privies and touching upon the land procured by the Akwapim land purchasing syndicates, who are the predecessors in title and privies of the parties in the instant action. The decision in that suit had gone to the Court of Appeal, which, according to Counsel for the Appellant herein, had upheld the judgment of the High Court Accra but had made very critical and important variation of the judgment of the Accra. High Court. That judgment of the Court Of Appeal was tendered in evidence in the Court below as Exhibit “D”.
Exhibit “D” is clearly a rich, sumptuous and disarming judgment authored by Benin, JA (now a Justice of the Supreme Court of Ghana).
Thus, learned Counsel for the appellant stated as follows, at page 8 of the written submission:
“ It is humbly submitted that in the circumstances of this case where Exhibit D which was part of the record has shown that the entire land was not owned jointly but in identifiable portions the trial judge still in the face of Exhibit D which is the Court of Appeal decision held that the entire land was jointly owned”
Counsel’s apparent sharp rebuke or criticism was aimed at one sentence in the judgment of the Court below which he quoted in the manner as follows:
“ The Court of appeal ordered that the entire syndicated land as found by the High Court should be shared equally”.
Counsel stated further as follows:
“ It is respectfully submitted that going from the evidence that was record (sic) the trials judges’ conclusion that the entire land was jointly owned by the syndicates is not supported”
Flowing from the above, Counsel concluded on this limb of the appeal thus:
“ It is therefore submitted that this ground of appeal be allowed”.
Reacting to the Appellant’s submissions, Counsel for the Plaintiffs/Respondents (Respondents) first of all referred to a statement in the Appellant’s written submissions which he considered to be erroneous.
The “offensive” statement declares:
“ Plaintiff also stated that the Defendant had put in claims for compensation in respect of every portion of the land adjudged to be jointly (sic) property of the 3 syndicates”
On the contrary, Counsel for the Respondents referred to paragraph 12 of the Plaintiffs’ statement of claim which maintained that “the Defendant put in a claim for compensation of ¢790,000,800.00 in respect of part of the land adjudged to be joint property of the 3 syndicates”.
Counsel for the Respondent further submitted that it was equally wrong for Appellant’s Counsel to suggest that the rights of the parties in the earlier action rested only on the judgment of the Court of Appeal (Exhibit D). According to Counsel, since the Court of Appeal affirmed the High Court judgment (Exhibit C) and dismissed the appeal before the Court, with only an explanatory variation to aspects of the High Court’s findings both Exhibits “C” and “D” had to be taken together in seeking to enforce the decision of the High Court vis-à-vis the rights and interests of the parties in the said earlier suit which affects the parties in the instant suit and the appeal herein.
According to Learned Counsel “ in the High Court judgment reliefs c, d and e were not disturbed by the Court of appeal at all” and that the variation by the Court of Appeal only affected “reliefs A and B”.
Counsel argued further that by their pleadings and even more particularly by the evidence led by the Respondents herein in the Court below, through their Attorney and PW1, the Respondents made it clear that the compensation received by the Appellant herein related to part of the land which Exhibits C and D touched upon and clearly determined to be land jointly owned by the land purchasing syndicates and not exclusively owned by Attakora & Co. the predecessor in tittle and privy of the Appellant herein.
Counsel maintained that at the trial, the Respondents herein specifically led evidence, which was undenied and uncontested to the effect that the land in respect of which the Appellant applied for and received compensation in the sum of ¢790.000.800.00 formed part of “Block Three” of the land identified as part of the land in dispute in the earlier suit (Exhibits C and D) which had been found to be attached to or otherwise owned by the syndicated group referred to as Kwaku Krow & Co.
According to Counsel for the Respondents the earlier suit had conclusively found and determined by reason of Exhibits C and D that the Defendant/Appellant’s predecessor in title, Attakorah & Co, (owned by the Appellant’s grandfather, the late G.S.O. Attakorah alias Nana Attakorah Koi III) was joint-owner of the other syndicated Akwapim Land purchasing groups loosely identified as Otu Bekoe & Co. and Kwaku Krow & Co.
Counsel argued that since there was an earlier judicial determination that the lands jointly owned by Otu Bekoe & Co. and And Kwaku Krow & Co. Should be shared and that had still not been done, any compensation claimed and received by the Defendant/Appellant which was found to be part of or related to any of the land so determined to be jointly owned by any or all of the two syndicated groups, namely Otu Bekoe & Co. and Kwaku Krow & Co. could not properly and validly be kept for the exclusive use of the Defendant/Appellant; and that issue is encapsulated by the reliefs captured in the indorsements of the Plaintiffs/Respondents writ of summons which thereby justified the claim for the sharing of the compensation obtained by the Defendant/Appellant herein in relation to the land compulsorily acquired for the Benso Palm Plantation project to the benefit of all those ascertained to be part-owners of the land in respect of which the compensation was paid and received by the Defendant/Appellant herein. It was proper, therefore, to order the Appellant to bring up the compensation received by him and which he had continued to keep to his exclusive use and benefit and to the detriment of the other beneficiaries.
Counsel concluded, therefore, that, on the basis of the evidence on record the first ground of appeal ought to be disallowed and dismissed as being without merit.
On a thorough and critical examination of the first ground of appeal, as argued by Learned Counsel for the Defendant/Appellant in his written submission, I find the said ground to be wholly misconceived and totally without merit.
It has long been held that to succeed on an appeal, the appellant must, for example, demonstrate that there was an error of law on the part of the trial judge or some misappreciation by him of the facts and salient issues laid before him for determination. See: Akunor V. Okan (1977) 1GLR 173 @ 177
Now, further to the exposition of the law noted earlier on in this judgment in relation to the omnibus ground of appeal to the effect that the judgment was against the weight of evidence, it is worth alluding to the didactic observation made by Akamba,JSC in the case of F.K.A. Company Ltd. & Anor. V. Nii Ayikai Akrama II & ors (2016) 101 GMJ 187 of pages 215-216 thus:
“ 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 and 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 reasonably or amply supported by the evidence”
In this regard, the burden or obligation was obviously cast on the appellant to clearly set out to the satisfaction of the appellate Court the lapses which could be discerned from the impugned judgment and to proceed further to establish that the alleged lapses were such that they justified an interference by the appellate Court to set aside or otherwise review the judgement or order of the Court below. See: Bonney Vs. Bonney (1992 -93) 2 GBR 779
However, the appellate Court’s power to review the decision of the lower Court does not imply that it can and should set aside the finding of the trial Court on the mere ground that, left to itself, it could upon its own assessment or evaluation of the evidence on record have exercised a discretion different from that of the Court below.
The appellate Court was duty bound to interfere with or disturb the judgment complained about where it can be shown that it was clearly and obviously wrong; that the Court failed or neglected to take all the circumstances and the material evidence into consideration in arriving at its conclusion; or that the court below had drawn wrong inferences with no real evidence to back its position; or even that the trial judge had not taken proper advantage of seeing and hearing witnesses at first hand. Thus, the Court below may also be shown to have failed to observe inconsistencies or undisputed facts or that it had ignored material probabilities.
In this regard an appellant is enjoined to clearly point out pieces of evidence on record which are in his favour and which were overlooked by the trial Court, or such evidence which was wrongly applied against him and which, if now properly or correctly evaluated, could markedly change the nature and outcome of the judgment. Ref. Koglex Ltd. (no.2) vs. Field (no.2) (2000) SCGLR175 @184, Ababio V. Bekoe (1996-97) SCGLR394; Kwa Kakraba V. Kwesi Bo (2012) 2 SCGLR 834 and 841.
Against the back drop of the considerations set out above, I find that the Appellant’s written submission seems bereft of any discernible attacks on the judgment of the Court below in respect of the evaluation of the admissible evidence on record, in a manner that does establish, for example, that material pieces of evidence were led but ignored by the court to the detriment of the Defendant/Appellant.
All that the Appellant had sought to do was to feebly attempt to re-interpret the Court of Appeal judgment in the earlier suit (Exhibit D), by way of improper inferences seemingly drawn from certain conclusions made by Benin JA (as he then was) in Exhibit D aforesaid.
No attempt whatsoever was made to point to specific evidence on record which may be said to be favourable to the Appellant but which had been ignored by the trial Court to the detriment of the Defendant/Appellant herein.
I find that the only solitary part of the judgment which the appellant did find worthy of attack and on the basis of which he urges this Court to uphold the said criticism and hence to upset the judgment of the trial Court, based on his first ground of appeal is the statement of the Learned Trial Judge alluded to earlier on. That observation is as follows:
“ The Court of Appeal ordered that the entire syndicated land as found by the High Court should be shared equally”
I believe that the attack is unfounded and misconceived. It is my considered view that the trial judge’s statement above ought to be put in its proper context and must be set against the backdrop of all the evidence on record and the conclusions of the Court of Appeal (Exhibit D) in seeking to clarify the judgment of the High Court (Exhibit C) which the Court of Appeal ultimately confirmed by dismissing in its entirety the appeal that had come before it.
It must be noted that in the earlier litigation, as it is strangely with the instant action, the predecessor in title of the Defendant/Appellant herein had stoutly held to the position that apart from Nana Attakora (representing the syndicated group referred to as Attakora & Co). the members of all the original syndicated groups had no land vested in them since they had abandoned their previous holdings or had divested themselves of their rights or title and granted same to Nana Attakora of Attakora & Co. as a result of certain alleged later developments. It was alleged, for instance, that the other members had failed to fully pay their respective contributions for the land acquired; that it was not possible to identify the land jointly held or owned to enable compliance with the High Court’s order to distribute the land.
Justice Benin’s brilliant assessment and analysis of the evidence on record and his conclusive determination of the core issues brought before the Court of Appeal speak for themselves. Little wonder there was no further appeal to the Supreme Court.
The following passage from the Appeal Court’s judgment and found on pages 230-232 of the ROA is particularly instructive and bears quoting in detail for its full terms and effect:
“As regards the various contributions made by each syndicate, it must be noted that even though the Defendant contends that the other Plaintiffs’ syndicates did not completely pay their contributions, yet he failed to say exactly how much he also paid. But one thing is certain, and it was this that from the way and manner they carried themselves, one could say they intended to have equal shares. That explains why members of the syndicates did not make any agreements, inter se as to what each member’s share shall be. Indeed in Exhibit N the purchasers are described as “joint tenants forever”. This only confirms the fact that at least the initial intension was that they would take the land in equal shares as “joint tenants”. Another thing that stands out is that Attakora was the president of all three syndicates so he joined with one or the other company in acquiring each distinct piece of land, as Exhibits N & O clearly bear out. And in view of this it appears each company was there and then identifying an area of land for itself. That finds support from the agreement Exhibit E that the Colonial Government and the other vendor Chiefs, on one side, entered into with Attakora and Kwaku Kro on the other. Otu Bekoe was not a party to this agreement, the inference being that he was not a part owner of the land covered by this agreement. Otu Bekoe’s interest is contained in the land covered by Exhibit O. these documents must be allowed to speak for themselves since they describe the contracting parties as well as the area covered by each purchase.
By the very nature of the defence filed, the Defendant did not deny that the Plaintiffs were parties to the acquisition of the land. And these documents confirmed that the consideration had been paid as at the date stated therein, namely 22/7/1937 and 23/7/1937 respectively. There was no question as to who contributed what at the time, so in the absence of clear, credible evidence to the contrary the parties must be deemed to have made equal contribution towards the purchase price. So then the trial Court’s conclusion could only be explained in this light that the land covered by Exhibit n should be shared equally between Attakora and Otu Bekoe, since it did not accept the defence story that the other syndicate members had renounced any claim to the land by Exhibits 4 and 4A. I shall talk about these two exhibits at the appropriate time. Indeed defence Counsel’s assertion that “there was no indication to the trial Court as to which tract of land was paid for by which company” is untenable in the light of Exhibits N & O. the Defendant assumed the burden of producing evidence to disprove the fact that they are “joint tenants” and for that matter equal owners as contained in these two exhibits N & O, since he asserts the contrary or denies what they contain. In my view these documents provided the best evidence as regards the contributions by which groups for which parcel of land. It follows that any other land outside what these exhibits contain is owned exclusively by Attakora.
The second point argued under this head was the declaration of joint ownership. I think this argument was covered in the previous decision. That there was “joint tenancy” in the sense of equal ownership was the parties” own decision as borne out by Exhibits N & O. The area claimed in the writ of summons appears to be the total area of land purchased by the three syndicates. But as these documents establish, the various syndicates bought particular portions which are sufficiently described in these exhibits. So the judgment would be limited to the descriptions contained in these exhibits, and the parties described in each document would be entitled to the area of land described therein, as I have already pointed out. There is accordingly no merit in this ground of appeal too and is to be dismissed”.
There can be no better clarity than the above passage in determining the identity of the land commonly or jointly held by the syndicated group of land purchasers as well as the specific members of the syndicates attached to each such identified land, as joint owners, for the purpose of deciding on or determining the land to “shared equally” as well as the beneficiaries of the said distribution.
In the light of Exhibits C and D, ie the judgments of the High Court and Court of Appeal, respectively, in the earlier or previous litigation, it is obvious that the lands commonly or jointly owned or held by the syndicated groups are the land specifically identified and contained, respectively in exhibits N and O tendered in the previous trial.
It is equally a fact, established under the Appeal court judgment (Exhibit D above), that there were other parcels of land acquired in the Wassa Traditional Area by the Akwapim syndicated land purchasing groups which are NOT jointly or commonly owned. These other pieces or parcels of land, which were not specifically mapped out or identified in the aforesaid judgments of the High Court ( Exhibit C) and Appeal Court (Exhibit D) were and are individually owned. And these particular lands, by the determination or decision of the Appeal Court, in Exhibit D, belong exclusively to attakora & Co. (belonging to the late G.S.O Attakora alias Nana Attakora Koi III).
The three distinct syndicated groups particularly identified and relevant to the instant appeal, as with the previous or earlier litigation are :
Attakora & Co.
Otu Bekoe & Co.
Kwaku Krow & Co.
The most prominent of the above syndicates remained Attakora & Co., headed by G.S.O. Attakora. G.S.O. Attakora was also the overall head of the three distinct syndicates and was variously referred to either as President or secretary of the three syndicates.
It is also an established fact that Attakora & Co. (G.S.O. Attakora) was at all times material a joint owner of the land attached to or belonging to both Otu Bekoe & Co. and Kwaku Krow & Co. The latter two companies or syndicates, however, had absolutely no shares or interest whatsoever in any lands separately acquired or obtained by Attakora & Co. headed by G.S.O. Attakora, the grandfather of the Defendant/Appellant herein and the ancestor whose land holdings first passed to the Defendant /Appellant’s father (G.S.O. Attakora’s son) and, subsequently, to the Appellant herein.
From the foregoing, the land to be “shared equally” stand as follows:
i) The land identified and contained in EXHIBIT N, standing in the name of Otu Bekoe & Co. is to be shared between OTU BEKOE & CO. (and their descendants/representatives) and ATTAKORA & CO. and their descendants/representatives)
ii) The land identified and contained in EXHIBIT O, standing in the name of KWAKU KROW
Co. is to be shared between KWAKU KROW & CO. (and their desendants/representatives) and ATTAKORA & Co. (and their descendants/representatives.)
In the earlier litigation, the Defendant/Appellant herein and his biological father (the successor of the late G.S.O. Attakora of the “famous” Attakora & Co. Syndicate) had strenuously taken the position that Otu Bekoe & Co. and Kwaku Krow &Co., two of the three original syndicated groups, no longer had any land holding whatsoever in the Wassa area and that whatever land or interest in land they may have had in the past had been renounced and practically been ceded to Attakora & Co. belonging to the late G.S.O. Attakora and his descendants. That position has been found by the Court of Appeal (Exhibit D) to be UNTENABLE.
In the instant proceedings, the Defendant/Appellant had equally, by his pleadings and in his testimony in Court, taken the same stand by rejecting outrightly any and all the interest in or title to all the land originally acquired by the Akwapim syndicated groups in the Wassa area.
The Court below has similarly denounced the Appellant’s said notion. There is more than ample evidence on record to support the decision of Buadi, J presiding over the Sekondi High Court in this case.
The High Courts in Accra and Sekondi respectively found the Appellants father and the Appellant himself to be untruthful and unreliable witnesses. On the evidence on record, I can hardly disagree with them. The Defendant/Appellant provided the most anaemic evidence to back his mere denials and allegations contained in his pleadings. No Court minded to do justice could ever uphold the Defendant’s appeal, based on his ground of appeal to the effect that the judgment was against the weight of evidence.
It should be noted that the Court below based on the evidence on record, found as established that the land compulsorily acquired for the Benso Oil Palm Plantation project and for which the Defendant applied for and obtained compensation in the sum of ¢790,000,800.00 formed part of the land referred to as Block 3 which belongs to Kwaku Krow & Co. There is ample evidence to support that determination.
Accordingly, the Defendant/Appellant had no exclusive title to or interest in the said land for which he allegedly applied for compensation in the name of his late father.
In the light of the decisions of the High Court and Court of Appeal in the earlier litigation, the Defendant/Appellants action in applying for compensation and keeping same exclusively for his own use and benefit was wrongful, illegal and even borders on fraudulent misrepresentation.
As the accredited representative of Attakora & Co, however, he is a stakeholder and part or joint owner of the land in respect of which the compensation, the subject matter of the instant litigation was paid.
That notwithstanding, it is fair and reasonable to order the Defendant to promptly surrender the whole compensation paid, and received by him, with interest at the current bank rate from the date of receipt till the date of refund. Thereafter, the amount could be shared among those justly entitled to benefit.
In the position I have taken, from the foregoing, I would have assumed that the fate of the appeal has been sealed and hence no useful purpose would really be served belabouring the other grounds of appeal.
I would nonetheless proceed to examine or deal with them as appropriate.
I have examined the appellants second ground of appeal and I find no merit at all worth discussing. Considering the issues raised for consideration and determination by the High Court, I do not see how the appellant’s case is substantially helped by this ground of appeal. It seems to me to be a familiar and well beaten path which had in the earlier or previous case been clearly settled, or otherwise dismissed, by Justice Benin in Exhibit D.
On page 232 of the ROA, Justice Benin pointed out as follows:
“ But the documents tendered in support showed the pieces of land within the total area acquired were purchased separately by the various groups. But that does not mean the claim was not proved, that is the fact that the evidence proved something less than what was claimed by the writ did not mean the burden of persuasion that the Plaintiffs assumed was not discharged so long as the area contained in Exhibits N & O fell within the area claimed by the writ. There is thus no merit in this ground of appeal too…”.
There is ample evidence on record to show that the land in respect of which the compensation was paid formed part of Block 3 for Kwaku Krow & Co. The evidence of the Plaintiffs Attorney as well as that of PW1 establish that quite clearly. This issue has been touched upon in dealing with the first ground of appeal. The position taken by the Appellant has simply been that the Plaintiffs have no land whatsoever which is linked to the compensation claimed and paid to him since, at all material times, the land belonged exclusively to Attakora.
The real issue in controversy was whether the defendant was entitled to keep to himself alone or exclusively the compensation paid to him. The fact that he applied for and received the compensation the real matter in dispute in the instant case is beyond dispute and completely has been settled. The further fact that the compensation relates to part of the Block 3 land is equally beyond doubt on the evidence.
Learned Counsel for the Plaintiffs/Respondents is quite right when he stated thus; “……….. it cannot be said that the Learned trial judge relied on any such evidence to the detriment of the Appellant ..”
I find ground 2 to be simply a red herring and of little value and, hence, I have no hesitation in dismissing it.
I believe ground 3 suffers from the same fate. The Appellant was clearly bound by the decision of the High Court and the Court of Appeal in the earlier litigation and yet he obstinately stuck to his position that no one else except his grandfather, Attakora, had land relevant to the issues raised for determination. And yet he led no valid evidence to support his position and his case. Ground 3 is similarly a red herring and of little value in determining the real issues in controversy in this case. I, accordingly, dismiss same as being unmeritorious.
Ground 4 is even more intriguing. In the light of Exhibits 3 and 4 being the judgments of the High Court and the Court of Appeal in the earlier litigation affecting the same parties and involving practically the same land, the question of pleading alternative defences did not and could not validly arise since the position had been clearly and completely settled by the judgment of Benin, JA in Exhibit D.
The judgment was not appealed against and is binding on all the parties, especially the Defendant/Appellant herein.
I find it a worthless ground which does not positively advance the cause of the appellant one jot.
In the light of the matters fully considered and discussed in dealing with the first ground 1 in this judgment I am fully satisfied that the remining grounds of appeal must suffer the same fate. They cannot be good and sufficient grounds to sustain the instant appeal. And I therefore feel no hesitation in discarding them into the waste bin of irrelevance, having regard to the totality of the evidence on record.
On the issue of variation of the judgment sought by the Plaintiffs/Respondents, I find no just reason or cause to do so.
On page 3 of the Appellant’s written submissions, Counsel states emphatically and clearly thus:
“ The trial judge at the end of the trial gave judgment in favour of the Plaintiffs on all the reliefs sought and this triggered the instant appeal”.
I find no confusion or lack of clarity with regard to the decision of the Learned trial Judge in the Court below and, accordingly, I find no good and valid cause to grant the kind of order of variation sought by the Respondents.
For the avoidance of doubt, it is hereby repeated that the Plaintiffs/Respondents are entitled to the declaration sought and endorsed on the writ of summons to the effect that the Defendant/Appellant is not entitled to keep to himself exclusively the compensation which he applied for and was paid in connection with the Benso Oil Palm Plantation project. Therefore, he is hereby ordered to refund the said amount of ¢790,000.800.00 as per its equivalent in Ghana Cedis, with interest thereon at the prevailing bank rate from the date of receipt of the said amount by the appellant to the date of payment.
Upon payment of the money it shall be shared equally among those found in this judgment to be entitled thereto, namely Kwaku Krow & Co. being the syndicated groups entitled to share Block 3 as the evidence on record fully establishes.
As found and ordered in the previous or earlier action, steps should now promptly be taken to share the land established to be jointly owned, which issue has been further and more fully clarified in the instant judgment.
In conclusion, the appeal is hereby dismissed in its entirety as being without merit.
The judgment of the High Court, Sekondi dated 17th June, 2014 is hereby affirmed, subject to the clarifications settled in this judgment, and more particularly in the concluding portion of this judgment dealing with the first ground of appeal.