IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ACCRA - A.D 2017
MARY LARLEY NUNOO - (Plaintiff/Respondent)
MANASSE ATAGLO - (Defendant/Appellant)
DATE: 2ND NOVEMBER, 2017
SUIT NO: H1/55/2017
JUDGES: GYAESAYOR JA (PRESIDING), ADUAMA OSEI JA, KWOFIE JA
COUNSEL FOR DEFENDANT/APPELLANT – S. K. AMOAH
COUNSEL FOR PLAINTIFF/RESPONDENT – FELIX NANA OSEI
ADUAMA OSEI JA:
This is our judgment in an appeal against a decision of the High Court, Accra, dated the 15th of May, 2014, in which the High Court upheld the Plaintiff/Respondent’s claim for declaration of title to land and, among other further reliefs, cancelled the Defendant/Appellant’s Land Title Certificate, granted the Plaintiff/Respondent recovery of the disputed land, and restrained the Defendant/Appellant and his assigns and successors from interfering with the Plaintiff/Respondent’s quiet enjoyment of the same.
The Defendant/Appellant, who will hereafter be referred to as “the Defendant”, is praying this Court to set aside the said decision of the trial Court, re-instate his Land Title Certificate and enter judgment in his favour against the Plaintiff/Respondent, who will hereafter be referred to as “the Plaintiff”.
The grounds on which the Defendant is seeking the above reliefs are that the judgment is against the weight of the evidence on record, and, further, that the trial Court erred in:
i) failing to hold that the Plaintiff’s claim was barred by virtue of the Limitation Act, 1972 (NRCD 54);
ii) ordering the cancellation of his Land Title Certificate;
iii) upholding the Plaintiff’s claim ;
iv) failing to adequately consider his case, and
v) awarding a lump sum of GH¢10,000.00 as damages and costs against him.
The Defendant stated in his Notice of Appeal that he would file additional grounds of appeal upon receipt of the appeal record. No such grounds have however been filed, and the above-stated grounds remain the bases of the Defendant’s challenge to the judgment of the trial Court.
The suit that culminated in the judgment appealed against was commenced by a writ of summons issued in the High Court, Accra, on the 17th of January, 2011. In the statement of claim that accompanied the writ of summons, the Plaintiff asserted ownership of the disputed land by virtue of a purchase from Charosse Stores on the 24th of July in an unspecified year, of a vast parcel of land, which included the disputed land.
The Plaintiff alleged that she had been in possession of the land since 1970, and stated that she constructed a fence wall around the land and built 3 uncompleted stores on it, after which she left the country for the United States of America. She alleged that sometime in the year 2000, it came to her attention that certain persons, including the Defendant, had trespassed upon the land and that while she had been able to eject the other trespassers, the Defendant was still on the land and was claiming ownership of the same. Among the acts of trespass alleged against the Defendant in respect of the disputed land is the pulling down of the fence wall and the uncompleted stores she had constructed. In place of the said structures, the Defendant is alleged to have constructed a two-hall-and-chamber building, which he had rented out.
For his part, the Defendant claims in his statement of defence to have acquired the disputed land from the Abola Piam family of Accra in August, 1997. He alleges that the acquisition was evidenced by an indenture executed in his favour and he further alleges that soon after the acquisition and before the end of 1997, he constructed a two-room structure on the land and put a caretaker therein. He states that he himself went into occupation of the structure in 1998 and that since that time, he has been living on the disputed land.
The Defendant denies the allegation by the Plaintiff that she had constructed a fence wall around the disputed land and built stores thereon. According to the Defendant, there was a time, while his caretaker was in occupation of the disputed land, when one Auntie Wassa blocked the entrance to the two-room structure he had constructed on the land. It was during this time that the said Auntie Wassa wrongfully constructed a fence wall and a block of 4 stores on a portion of the land.
In her reply to the defence filed by the Defendant, the Plaintiff discloses that she is called Auntie Wassa by friends and close relations and she claims to have constructed the fence wall alleged by the Defendant before the Defendant erected his two-room structure on the disputed land. The Plaintiff also alleges in the reply that the disputed land forms part of a large tract of land owned by the Asere Stool and not the Abola Piam family. She also states that even though she acquired the disputed land in the 1970s, she had to re-acquire it from Charosse Stores when she realised that the land had been plotted in the name of Charosse Stores at the Lands Commission.
In the judgment appealed from, the trial Court identified the following as the issues for trial:
i) Whether or not the subject matter of the suit forms part of Asere Stool land or Abola Piam family land;
ii) Whether or not the Plaintiff erected her fence wall on the disputed land before the Defendant came onto the same;
iii) Whether or not the Land Title Certificate issued to the Defendant by the Land Title Registry was issued by mistake;
iv) Whether or not the Land Title Registry caused the Defendant to conduct a search at the Lands Commission before issuing the Land Title Certificate to the Defendant, and
v) Whether or not the Plaintiff is entitled to her reliefs.
After assessing the evidence before it, the trial Court resolved all the issues in favour of the Plaintiff and proceeded to enter judgment for her, as stated at the beginning of this judgment.
The judgment appealed from is found at page 95 to page 103 of the Record of Appeal and the Notice of Appeal is found at page 106 to page 107 of the same Record. Having read the appeal record generally, and particularly the pleadings, the evidence and the judgment of the trial Court, I am of the view that the starting point in determining the merits of this appeal should be a consideration of the Defendant’s contention that the judgment of the trial Court is against the weight of the evidence on record. This appears as ground (vi) on the Notice of Appeal.
In his argument in support of this contention, Counsel for the Defendant has invited this Court to review the entire evidence adduced at the trial and come out with a pronouncement as to whether, on a balance of the weight of the evidence, the judgment of the trial court is supportable. He considers that the Supreme Court’s judgment in Oppong Kofi and Others Vs. Attibrukusu III  SCGLR 178 entitles this Court to adopt his suggested approach.
Having so invited this Court, Counsel proceeds to draw the Court’s attention to pieces of evidence on record which, in his view, the trial Court failed to take into account in upholding the Plaintiff’s claim, and also to principles governing assessment of evidence which he thinks the trial Court ignored in assessing the evidence before it. He states, for example, that the trial Court’s decision that the Defendant’s witness was not a credible witness must have led that Court to rule against the Defendant. He however considers that in the face of decisions in cases like Abbey Vs. Sykes [1994-95] GBR Pt. II 743 and Effisah Vs. Ansah [2005-2006] SCGLR 943, the trial Court’s decision is not justifiable. Counsel submits under this ground that the trial Court’s judgment cannot be supported by the evidence on record and he invites this Court to allow the Defendant’s appeal and set aside the judgment.
The response of Counsel for the Plaintiff to the submissions of Counsel for the Defendant is that on the facts as well as the law, there is justification for the trial Court’s decision and that this Court will have no cause to disturb the said decision. Counsel for the Plaintiff contends that before deciding that the Plaintiff had proved her case and that her claim ought to succeed, the trial Court adequately evaluated the evidence in its entirety and, in the case of the evidence for the Defendant, highlighted several inconsistencies in it. In the case of the evidence for the Plaintiff, the trial Court satisfied itself about its veracity. The trial Court was satisfied that the Plaintiff’s root of title had been traced to the Asere Stool with the testimony that “all pillars on the corners of the land had the inscription ‘Merley Tse Korle Ansah’ and that is the name given to the Asere Stool”. He contends that the Defendant was not able to assert his root of title and was also not able to challenge the Asere Stool’s ownership of the disputed land. Counsel notes that the trial Court had the opportunity of witnessing the demeanour of the witnesses during the trial and that, for this reason, a heavy burden was placed on the Defendant in his attempt to get this Court to reverse the conclusions of the trial Court on the facts. In his view, the Defendant failed in its task to get this Court to hold otherwise than the trial Court did.
Indeed, while it is true, as contended by Counsel for the Defendant, that this Court is entitled to review the entire evidence and come out with a pronouncement as to whether the findings of the trial Court were supportable, it is also true that when faced with findings of fact made by a trial Court, especially where the trial Court has had the opportunity of witnessing the demeanour of witnesses, this Court ought to be slow in deciding to reverse the conclusions of the trial Court.
In the case of Bonney Vs. Bonney [1992-93] GBR 779 (787), the Supreme Court, per Aikins JSC, observed that “the appeal court should not under any circumstances, interfere with the findings of fact by a trial judge except where they are clearly shown to be wrong, or that he did not take all the circumstances and evidence into account, or has misapplied certain of the evidence, or has drawn wrong inferences without any evidence to support them or that he has not taken proper advantage of his having seen or heard the witnesses”.
In making this observation, Aikins JSC had referred to a number of cases including Praka Vs. Ketewa  GLR 423, in which Ollennu JSC, after encouraging appellate courts to make up their own minds on the facts and draw inferences from them, had cautioned that they should refrain from interfering with findings of fact made by trial courts, unless those findings “are clearly shown to be wrong, or where those facts are wrong inferences drawn from admitted facts or from the facts found by the trial court”.
Also to be recalled, is the view expressed by Webber CJ (Sierra Leone) in Martin Nortei Codjoe Vs. Emmanuel Kwatchey & Others, 2 WACA, that since the burden of proving that the judgment is against the evidence is on the appellant, if after weighing the evidence the appellate court is in doubt as to where to place the balance, the appellate court must dismiss the appeal. Where, however, the appellate court comes to the conclusion that the judgment of the trial Court is wrong, then, in the view of Webber CJ, it should not shrink from overruling the trial court.
In the case of Faibi Vs. State Hotels Corporation  GLR 471, for the determination of where the burden of proof should lie in a claim before the court, Ollennu JA, as he then was, stated, as a guiding principle, that the burden should always lie upon the party who would lose if no evidence was led in the case. He explained that where some evidence has been led, then, the burden would lie upon the party who would lose if no further evidence was led. Now, as was noted at the beginning of this judgment, among the reliefs claimed by the Plaintiff before the trial Court was a declaration of title to the disputed land. It is also evident from the pleadings that the Defendant did not counterclaim in the present case. There is no doubt therefore that, before the trial Court, the Plaintiff was the party who would lose if no evidence was led. The Plaintiff therefore owed the burden to establish her title to the land in respect of which she sued and she risked losing the action if she failed to establish that title.
But what is the quality or standard of evidence which a party who bears the burden of proof in an action for declaration of title to land must produce in order to discharge that burden? Perhaps, this passage from Francois JSC’s opinion in the case of Akoto II & Others Vs. Kavege & Others [1984-86] 2 GLR 365, will provide a clue. The learned jurist stated:
“The suit being one for a declaration of title, the plaintiffs have an onerous burden to discharge. This is trite law and would have necessitated no further comment but for the procedure adopted. No root of title was disclosed. Neither the tradition of acquisition of an inherited estate nor the incidents of purchase, if acquired by sale, were divulged. No clear and positive acts of unchallenged sustained possession or of substantial user emerged from the evidence”.
In the case of Mondial Veneer (Gh) Limited Vs. Amuah Gyebu XV  1 SCGLR 466 (475), Georgina Wood CJ expressed what the law requires of the party who bears the burden of proof in land litigation in the following terms:
“In land litigation, even where living witnesses who were directly involved in the transaction under reference are produced in court as witnesses, the law requires the person asserting title, and on whom the burden of persuasion falls, as in the instant case, to prove the root of title, mode of acquisition and various acts of possession exercised over the subject-matter of litigation. It is only where the party has succeeded in establishing these facts on the balance of probabilities, that the party would be entitled to the claim”.
In the present case, the Plaintiff has asserted in her statement of claim that she is the owner of the disputed land. In support of her claim to ownership, she has alleged a purchase from Charosse Stores and possession since 1970. Other acts or incidents of possession alleged by her in respect of the land are grants made to private developers who are alleged to have duly registered their interests, and the construction of a fence wall and uncompleted stores on the land. In her reply to the Defendant’s statement of defence, she has alleged ownership of the land by the Asere Stool, but she has done so without stating anywhere in her pleadings that the title she is claiming is derived from the Asere Stool.
In my view, looking at the allegations on which she bases her claim to ownership of the disputed land, to meet the requirements for the discharge of the burden of proof she bears, the Plaintiff will need to establish by evidence on a balance of the probabilities that the disputed land forms part of Asere Stool land and that the grant she took from Charosse Stores is traceable without a break to the Asere Stool. She will also need lead evidence from which the Court can reasonably conclude that she has been in possession of the land since 1970. Since she claims to have made grants of portions of the land to other persons and to have constructed a fence wall and stores on the land, evidence to this effect, spanning the period between 1970 and the emergence of the dispute herein, may be helpful to her case. With these requirements in mind, I now proceed to examine the evidence produced by or on behalf of the Plaintiff.
The Plaintiff testified during the trial and called two witnesses in support of her case. The witnesses were Kingsford Mills-Thompson (PW 1) and William Tetteh Nettey (PW 2). I have carefully read the testimonies of the Plaintiff and her witnesses together with the exhibits in the case, and I do not find anything on which to base a conclusion that the land in dispute herein forms part of Asere Stool lands.
In the judgment appealed from, in concluding that the disputed land formed part of Asere Stool lands, the trial Court appears to have been influenced by a High Court decision in a matter which involved land situate at Sowutuom in which that Court had held that from available evidence, the land in dispute therein belonged to the Asere Stool. The trial Court in the present case assumed that the land in dispute herein is also land situate at Sowutuom and, having made that assumption, reasoned that since in the other case a parcel of land situate at Sowutuom had been held to be Asere land, the land in dispute herein must necessarily form part of Asere Stool land.
In my respectful view, the trial Court erred in allowing its decision in the present case to be influenced by facts in another case which are not necessarily the same as the facts in the present case. From the first indorsement on the writ of summons herein and the schedule to the accompanying statement of claim, we know that the land put in issue in the present case is land situate at West Akweteman in Accra. I grant that the Plaintiff in her testimony stated that the land in respect of which she had sued the Defendant is situate at Sowutuom and I also grant that her second witness, William Tetteh Nettey, also gave the impression that the land in dispute is situate at Sowutuom. The point however is that the Plaintiff is in this suit seeking a declaration of title in respect of land situate at West Akweteman and there is no evidence on record that establishes any relationship between West Akweteman and Sowutuom. In my view, the Plaintiff cannot seek to be declared owner of land expressed to be located at West Akweteman, assert the Asere Stool’s ownership of Sowutuom lands in her testimony and, without any evidence suggesting that West Akweteman and Sowutuom are the same, expect, from the mere assertions that Sowutuom lands belong to the Asere Stool and that she derives her title from the Asere Stool, to be declared owner of the West Akweteman land.
Another aspect of the testimony of the Plaintiff which, in my view, undermines her claim to title to the disputed land is her statement, during her cross-examination, that after the land had been granted to Charosse Stores, his direct grantors, it had at a point in time reverted to the Asere Stool. The Plaintiff had been asked whether the Asere Stool had made a grant of the disputed land to her before Charosse Stores did so and her response was that the land “was first given to Charosse Stores and it came back to Asere Stool”. This would mean that unless the Asere Stool subsequently made a new grant of the disputed land to Charosse Stores, Charosse Stores would lack capacity to grant the land to the Plaintiff.
Exhibit A is the document by which Charosse Stores purportedly granted and conveyed the disputed land to the Plaintiff. It recites a conveyance dated 27th October, 1974, from Emmanuel Adjaayi Tagoe, Okai Lartey and Alfred Awuley Clottey to Naa-Moko Company Limited, and it also recites a conveyance dated 26th May, 1975 from Naa-Moko Company Limited to Charosse Stores. In the face of the Plaintiff’s statement that the land went “back to Asere Stool”, one would expect that Exhibit A would also recite grants from Charosse Stores to Asere Stool, and from Asere Stool back to Charosse Stores. But the document says absolutely nothing about the Asere Stool.
So, if as the Plaintiff testified, the disputed land formed part of Asere Stool lands and the said land also reverted from Charosse Stores to the Asere Stool at a point in time, when again was the land conveyed by the Stool to Charosse Stores? Where is the evidence of that conveyance? If indeed the land had reverted to the Asere Stool, then without that evidence, Charosse Stores had no title to convey to the Plaintiff by Exhibit A, and this renders the validity of Exhibit A as evidence of the Plaintiff’s title to the disputed land questionable.
But apart from claims based on title allegedly derived from the Asere Stool, is there any credible evidence of acts of possession or ownership which may be considered in support of the Plaintiff’s claim to ownership of the disputed land? In her statement of claim, the Plaintiff alleged that she had been in possession of the disputed land since 1970, that as owner of the land, she had made grants to several private developers, and also that she had constructed a fence wall and stores on the land. It is noted however that in her testimony, the Plaintiff was completely silent regarding her claim to possession of the disputed land from 1970. In fact, Exhibit A contradicts that claim. From the recitals in Exhibit A, Naa-Moko Company Limited were owners of the land between October, 1974 and May, 1975, and Charosse stores were owners from May, 1975. These render doubtful the Plaintiff’s claim that she had been in possession of the land since 1970.
Also regarding the allegation of grants to private developers who had allegedly registered their interests as her grantees, one does not find any evidence on record. There is some evidence in respect of the construction of a fence wall and stores, but that evidence is not free from doubt as to when the alleged construction took place, and the location of the land on which the construction was done. Her first witness, Kingsford, initially told the trial Court that he was contracted to construct the fence wall and stores in 1997. By the end of his cross-examination, however, Kingsford had left us wondering whether he meant 1977 or 1997. But if the Plaintiff has tendered Exhibit A as her document of title, the document that would normally grant him a right to enter upon the land, and Exhibit A is dated 24th July, 2003, can she claim to have properly taken possession of the land at any time before 2003 in the absence of evidence explaining how this came about?
There is also the question of the relationship between where the alleged construction took place and the land in respect of which the Plaintiff is seeking a declaration of title. As noted above, the Plaintiff had stated at the beginning of her testimony that she had brought the Defendant to Court in respect of land situate at Sowutuom. From then she had proceeded in her testimony without giving any indication that she was testifying about any parcel of land other than land situate at Sowutuom. Her first witness, Kingsford, had also testified without saying anything about the location of the fence wall and stores he had been contracted to construct. But her second witness, William, had told the trial Court about land demarcated in Sowutuom and he had also talked about his own land near the disputed land, also allegedly acquired from the Asere Stool. Had the parties been litigating about land situate at Sowutuom while the Plaintiff had gone to the trial Court seeking to be declared owner of a parcel of land situate at West Akweteman? As observed above, without evidence relating Sowutuom to West Akweteman, the Plaintiff cannot on the basis of evidence regarding a Sowutuom dispute, obtain a declaration of title in respect of land situate at West Akweteman.
In the present case, the trial Court appears to have decided the case in favour of the Plaintiff, relying very much on weaknesses in the Defendant’s case and hardly taking note of the confusion and inconsistencies in the case presented by the Plaintiff. So I pose the question: can the Plaintiff yet succeed in her action merely for the reason that there are weaknesses in the Defendant’s case? In the case of Kodlinye Vs. Odu (1935) 2 WACA 336(337-338), Webber CJ (Sierra Leone), had stated:
"The onus lies on the plaintiff to satisfy the Court that he is entitled on the evidence brought by him to a declaration of title. The plaintiff in this case must rely on the strength of his own case and not rely on the weakness of the defendant's case. If this onus is not discharged the weakness of the defendant's case will not help him and the proper judgment is for the defendant. Such a judgment decrees no title to the defendant, he not having sought the declaration. So if the whole evidence in the case be conflicting and somewhat confused, and there is little to choose between the rival traditional stories the plaintiff fails in the decree he seeks, and judgment must be entered for the defendant."
The above dictum has in quite a number of decisions in the past been cited as supporting the position that in an action for a declaration of title to land, a weakness in the defendant's case must not be considered in evaluating the strength of the plaintiff’s case, no matter the nature of the plaintiff's case. Recent decisions of the Supreme Court however make it clear that this is not quite the position. In the case of Odametey Vs. Clocuh [1989-90] GLR 14, for example, Taylor JSC expressed himself as follows on the current position:
“The position is this: If the plaintiff in a civil suit fails to discharge the onus on him and thus completely fails to make a case for the claim for which he seeks relief, then he cannot rely on the weakness in the defendant's case to ask for relief. This is obvious from the dictum of Webber C.J. (supra). If, however, he makes a case which would entitle him to relief if the defendant offers no evidence, then if the case offered by the defendant when he does give evidence discloses any weakness which tends to support the plaintiff's claim, then in such a situation the plaintiff is entitled to rely on the weakness of the defendant's case to strengthen his case”.
There is also the case of Asante-Appiah Vs. Amponsa  SCGLR 90, in which Brobbey, JSC explains that the principle that a plaintiff is entitled to take advantage of loopholes in the case of his opponent “applies where the plaintiff has already established his title and thereafter proceeds to rely on the weaknesses in the case of his opponent to buttress his case”. His Lordship is emphatic that that principle “cannot be invoked and applied in lieu of the necessity to prove one’s case”.
The current position therefore is that the plaintiff must first make a case that would entitle him to relief if the defendant offered no evidence. It is then and only then that he can rely on the weakness of the defendant's case to strengthen his case.
As observed above, the trial Court assessed the evidence before it on the assumption that the disputed land is situate at Sowutuom, and it entered judgment for the Plaintiff without any indication that it had for a moment adverted to the location of the land in respect of which, by her writ of summons and statement of claim, the Plaintiff was seeking a declaration of title. Exhibit A which the Plaintiff submitted as her document of title was in respect of land situate at West Akweteman, yet the trial Court declared title to the disputed land in favour of the Plaintiff without resolving the issue of the relationship between the Sowutuom land she testified about and the West Akweteman land she sued in respect of.
After critically examining the record in the present case, I find and hold that the judgment of the trial Court granting the Plaintiff the reliefs claimed by her in her writ of summons has no reasonable support. I am satisfied that the trial Court was clearly wrong in its decision and I have no hesitation in reversing same.
By holding that the judgment of the trial has no reasonable support from the record, I am also saying that the trial Court erred in upholding the Plaintiff’s reliefs, that it erred in ordering the cancellation of the Defendant’s Land Title Certificate, and that it erred in awarding damages in favour of the Plaintiff. Accordingly, I hold that grounds (ii), (iii), (iv), (v) and (vi) of the appeal ought to succeed and I uphold the same. What I say in respect of ground (i), which contends that the trial Court erred in failing to hold that the Plaintiff’s claim was barred by virtue of the Limitation Act is that, with the conclusion now reached by this Court, discussing that ground will be merely engaging in an academic exercise. I do not therefore intend to discuss that ground.
In conclusion, the Defendant’s appeal succeeds and the judgment of the trial Court dated the 15th of May, 2014, is hereby set aside. For the avoidance of doubt, the Defendant’s Land Title Certificate which was cancelled in the said judgment is hereby re-instated.
Cost of Five Thousand Ghana Cedis (GH¢5,000.00) in favour of the Defendant/Appellant.