IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL
KUMASI - A.D 2017
MADAM ABENA TENABAABI - (Plaintiff/Appellant)
AMA PEAAH, YAA ADU AND MADAM TABUUAH - (Defendants/Respondents)
DATE: 19TH JULY, 2017
CIVIL APPEAL NO: H1/10/2017
JUDGES: AYEBI J.A. (PRESIDING, G.TORKORNOO (MRS) J.A., A. M. DOMAKYAAREH (MRS) J.A.
PIOUS KWADWO ASARE FOR PLAINTIFF/APPELLANT
NANA YAO FRIMPONG FOR DEFENDANTS/RESPONDENTS
From the record of appeal the original plaintiff herself issued the writ of summons on 8th July 2004. Although she failed/or omitted to indorse the writ with her mark or signature, the Commissioner for Oaths signed as a witness to her mark. But after the death of the original plaintiff, the writ of summons was belatedly amended pursuant to leave of the court and properly endorsed by her counsel. There in the plaintiff/appellant (hereafter called plaintiff) claimed against the defendants/respondents (hereafter called defendants):
(a) Declaration of title to a piece or parcel of farm land commonly known and called “ANANKASU” on Mpatuom Stool land bound by the properties of Boaduwaah, Kwadwo Donkor, Opanin Ayirebi and “Anankasu” stream.
(b) GENERAL DAMAGES FOR TRESPASS
(c) RECOVERY OF POSSESSION
(d) PERPETUAL INJUNCTION to restrain defendants, their agents and workmen from entering the said farm land.
The plaintiff’s plea and evidence is that the piece of land she claims, was originally acquired by her late husband Opanin Kwasi Fusuo. She said the two of them farmed the land with cocoa. Before his death, her husband customarily gifted the land to her and she rendered the customary aseda to him and his family members. Over the past 30 years, she had possessed and enjoyed the land without let or hindrance.
The plaintiff’s cause of action for suing defendants is stated in paragraph 7 of the statement of claim. It is that of late, defendants have entered the land to farm on it. And all efforts to stop them failed, hence the suit against them as the last resort. It has to be pointed out that both in her endorsement on the writ of summons and the statement of claim, she did not or omitted to mention the defendants as one of the people she shared boundary with.
However, the defendants both in their pleadings and evidence-in-chief mentioned Opanin Kwasi Fusuo as one of the persons their land share common boundary with. Tracing their root of title to their land which root is similar to the plaintiff’s, defendants stated that their grandfather Kofi Num acquired the land in its virgin state. He shared the land amongst his children including their father Kofi Anane @ Kofi Nuako.
Their mother was Adwoa Fordjour, wife of Kofi Anane. Both of their parents farmed on the land and planted cocoa. Their father gifted the land to their mother in accordance with custom and the gift was reduced into writing, Exhibit 1 which they tendered. When their mother became old and weak, she also gifted the land to them, which gift was also documented in Exhibit 2.
According to the defendants, their parents and plaintiff’s husband lived and enjoyed their separate lands peacefully without any interference or disturbance from each other. Defendants say they have also been in quiet enjoyment of the land until recently when plaintiff gave a portion of their land to a tenant on “abunu” basis. They drove the tenant off the land and confronted the plaintiff but she pleaded ignorance. So they requested her to join them to inspect their various portions of the land.
On several occasions however, plaintiff gave one excuse after another. But while they were still waiting for the plaintiff to come for the joint inspection, she rather sued them. Defendants denied plaintiff’s paragraph 7 that they trespassed on her land. Rather, it was plaintiff who trespassed on a portion of their land as her normal habit.
I have noted earlier on that the plaintiff omitted to mention the defendants as sharing any boundary with her land in the endorsement or the statement of claim. In the Reply however, this time filed by her lawyer, she stated that one of the boundary owners of Opanin Kwasi Fusuo was Opanin Kofi Anane who was later succeeded by the defendants’ father. Clearly, the plaintiff did not know the defendants’ family history. Opanin Kofi Anane was defendants’ father and not their grandfather.
In spite of this plea, it lately dawned on the plaintiff in her evidence that one of the people her land shared boundary with is the defendants or their mother or father. It was only when she was identifying the features along the common boundary with Adwoa Fordjour that she remembered she shared boundary with her. For at page 32 of the record of appeal she said, “I now say I also share boundary with Adwoa Fordjour”. She then denied that her “abunu” tenant entered defendants’ land.
Arising from the pleadings, four substantive issues were raised amongst others and set down for trial. For record purposes, I set them out as:
1. Whether or not the plaintiff has trespassed unto the defendants land.
2. Whether or not the defendants have trespassed unto the plaintiff’s land.
3. Whether or not the defendants’ father gifted a land to them including a portion of the disputed land.
4. Whether or not the plaintiff is entitled to her claim.
A review of the pleadings and the evidence of the parties show clearly that the determination of issues (1) and (2) will resolve the controversy between the parties. To reformulate the issue, it is whether or not the plaintiff trespassed on defendants’ land by giving a portion of it to the “abunu” tenant. This should be the issue because, although the plaintiff failed to plead the defendants’ or their mother as a boundary owner, her evidence and that of her two witnesses show that, defendants also own land in the area. The only problem with the evidence of plaintiff’s witnesses is that PW1 does not know the boundary between plaintiff and defendants while PW2 mentioned two boundaries which appeared unrelated to plaintiff’s land which share common boundary with the defendants.
Defendants never minced words that they are owners of their parents’ land which share a common boundary with the plaintiff’s. That being so, the evidence that each of the parties owns their separate lands which only share a common boundary is overwhelming. And since it is not the evidence of plaintiff that the defendants from nowhere entered her land without her knowledge and consent, none of the parties could complain about trespass if their lands do not share a common boundary. On that basis, the claim of the plaintiff is not about title to her land per se.
But then counsel for the defendants in his address treated the claim of the plaintiff as if it is a claim for declaration of title to the whole piece of land she owned. Counsel referred to cases on proof of declaration of title to land such as Kodilinye vrs Odu  2 WACA 336, Odoi vrs Hammond  1 GLR 375; C.A. and especially Malm vrs Lutterodt  1 GLR SC where the defendant has not counter-claimed as in this case. The dicta in these cases are to the effect that to succeed in an action for a declaration of title to land, recovery of possession and an injunction, the plaintiff must establish by positive evidence the identity and the limit of the land she claims.
Although the trial judge at the onset appeared to have appreciated the issue to be resolved between the parties at page 5 of his judgment (page 228 of the record of appeal), he was swayed by this approach in the address of counsel for the defendants to conclude that the defendants have been able to prove a better title to the disputed land and thereon dismissed the plaintiff’s claim.
Dissatisfied with the judgment the plaintiff appealed against it on three grounds namely:
(a) The trial judge erred when he held that the plaintiff could not identify her land.
(b) The trial judge failed to give adequate consideration to the case of the plaintiff.
(c) The judgment is against the weight of evidence.
I will in this opinion discuss the grounds of appeal not seriatim but in the light of the issue for resolution between parties as I have reformulated.
We agree that the plaintiff should lose the suit not because she was not able to prove her title to her land but because she was not able to prove the area trespassed on by the defendants. This is because she failed to introduce sufficient evidence on the issue of trespass to avoid a ruling against her – section 11(1) of NRCD 323 refers. At page 5 of the judgment, the trial judge noted “Indeed this suit is a boundary dispute between the parties”. That identification of the issue is disclosed on the pleadings and the evidence as I noted earlier on.
And how is that issue to be proved? On page 6(page 229 of ROA), the trial judge stated:
“In such a case, the court expect the parties especially the plaintiff who is making a claim against the defendant to know the exact limits of the land to enable her to succeed in a boundary dispute”.
In our view, the scope of proof is stated too broadly as against the defendants who share a common boundary from the evidence of plaintiff, on only one side.
Perhaps the realization that it is a boundary dispute between the parties made counsel for the plaintiff when he came into the case to ask for a plan to be drawn up by a Surveyor. But in his instructions, he stated the names of those the plaintiff’s land share common boundary with without the defendants. He however instructed the surveyor to delineate the features on the common boundary of the plaintiff and defendants. The instructions of the defendants to the Surveyor is also in the similar manner. Significantly, none of them asked the Survey to show on the plan the area trespassed on as alleged by the plaintiff.
The plan so prepared by the Surveyor is Exhibit CE1. I do not find from the record any reference to the plan in the presentation of the case of the plaintiff to the court. In this appeal however, counsel for the plaintiff submitted at the last paragraph of the last but one unnumbered page of the submission that “not all the boundary owners of the respondents can be found in Exhibit CE1” Those in Exhibits 1 and 2 can only be found at the bottom half of Exhibit CE1. Names like Darko Fordjour and Denkyi mentioned by the respondents are all found only at the bottom half of Exhibit CE1. This indicates that if the respondents had any land at all at the place in dispute, the land could only share boundary with the land in dispute in Exhibit CE1 at the bottom half of Exhibit CE1.
Therefore the respondents’ land per the testimony of the 1st respondent and DW1 cannot be the land in dispute which they admitted was being cultivated by Opanin Fusuo and the appellant in his life time for their subsistence”.
Granted that this submission is true, the point of trespass or the portion trespassed on has not been proved unless the area delineated yellow as the area in dispute is the area trespassed on. But it is not so stated and proved. However, from the plan in the south-south-west, defendants land share boundary with the plaintiff and in the north-north-east, plaintiff alone has claimed a portion. But the chunk of the land in the middle is claimed by both of them as per the boundary indicated red for plaintiff and green for defendants. The plan therefore does not show the exact boundary between the parties at the point of trespass.
So then how is trespass across common boundary proved? In Gawu III vrs Ponuku 
GLR 101, the court held that:
“The land in question was bounded on one side by the plaintiff’s land and on the opposite side by land belonging to the defendant. The defendant must establish clearly the boundary between his land and the land which he admits is the property of the plaintiff and show that the land in dispute is on his side of the boundary”.
Also in Yormewu vrs Affrim [1987/88] GLRD 2, the court stated how proof is effected as follows:
“Since the plaintiff admitted that the defendants had land adjoining his, in order to succeed, it was necessary to have described the trespassed area and the area in his possession with clarity”.
On the evidence on the record, plaintiff failed to make any such proof and the trial judge did not also make any such findings because as I have determined heretofore, he treated the plaintiff’s claim as title to her land. At the trial plaintiff mentioned the boundary features between her land and that of defendants as Konkura leaf, the Anankasu stream and pineapple grove. In order to show that there are other features along that boundary, counsel for the defendants in cross-examination of the plaintiff at pages 37 to 38 of the record of appeal dialogued with the plaintiff as follows:
“Q. You agree that there are 2 banana gloves (sic) and flowers also on the same boundary.
A. I do not know those. I know the anankasu, the konkura leaf and the pineapple.
Q. At the time you issued this writ, there had never been an indication that any of the boundary features had been cut or dislocated.
A. Those are what I have said.
Q. With these features, I put it to you that the defendants have not crossed over into your land.
A. The konkura leaf had been relocated. The defendants also claim that the pineapple is for them. So they have trespassed.
Q. If you claim that those features had been tampered with then on the plan they should not be (sic) the boundary.
A. I now say that no boundary feature had been removed.
Q. Beyond these features you have mentioned, have the defendants made a farm on your land.
A. My caretaker cleared part of my land and the defendants recovered it from him”.
This last answer is not true because plaintiff’s complaint is that defendants drove away her abunu tenant from her land and not a caretaker.
But this discourse between defendants’ counsel and the plaintiff is the nearest the plaintiff came to in describing her boundary with the defendants. Despite being evasive in her answers, she admitted that no boundary features between them have been relocated or removed. They were all in place as captured in the plan. The “abunu” tenant would have helped in identifying the portion plaintiff claimed was given to him on her side of the land. But he was not deemed a material witness by the plaintiff. The trespass and not ownership has therefore not been proved.
Just as the counsel for the defendants treated the plaintiff’s claim as a claim for declaration of title to the land at the trial court, counsel for the plaintiff in this appeal also argued the appeal similarly and with the same appreciation of the issue(s) by relying strictu sensu on cases which espoused principles on proof of declaration of title to land. Ground one of the appeal that the trial judge erred when he held that the plaintiff could not identify her land will be dismissed and it is hereby dismissed because it is not the whole of plaintiff’s land which is needed to be identified and proved in order to succeed.
Ground (b) of the appeal that the trial judge failed to give adequate consideration to the case of the plaintiff and that the judgment is against the weight of evidence called for the evaluation of the totality of the evidence on record by this court as a function of an appellate court to rehear the case. In our evaluation of the evidence as a whole, we come to the conclusion that, the counsel’s submissions did not disclose that the plaintiff had led sufficient evidence to establish her claim of trespass against the defendants. The two grounds are also dismissed.
27. It bears emphasizing that neither of the parties is contesting the title of each other’s land. What they are contesting is trespass to the land across their common boundary. That is the issue which appeared not appreciated by the parties as well as the trial court. In Yawson (substituted by Tulasi & Or.) vrs Mensah & Mensah  1 SCGLR 568, the Supreme Court stressed the point that:
“as both parties were not contesting the issue of title from the evidence and pleadings but the issue of boundary, it was imperative that clear findings on this ought to have been made by the learned trial judge. The Land Title Certificate with its site plan of the subject-matter may not be conclusive of the boundaries of the subject-matter. It may be prima facie evidence of title to the property, the subject-matter of the registration, but when a boundary dispute is in issue with adjoining land, a court of law is bound to ascertain the exact boundaries of the parties”.
28. The trial judge as we have demonstrated above, decided title to land but not trespass which is in issue between the parties. The plaintiff however failed to establish evidence of trespass against the defendants across their common boundary. We will therefore dismiss the appeal for the reasons so stated and it is so dismissed.