KUMASI - A.D 2017
NANA KWABENA POKU- (Plaintiff/Respondent)
KWABENA POKU - (Defendants/Appellants)

DATE:  17th JANUARY, 2017
CIVIL APPEAL NO:  H1/17/2014


1. In this appeal, the contest between the parties is for the ownership of a piece of land known as Plot No. 21 Block ‘A’ Duasi. Both contestants acknowledge that the plot of land originally belonged to one Kwame Anokye and his family. Beyond that, their root of title became different. The case of the respective parties as presented to the trial court will demonstrate how.



2. The respondent’s case is that he is the care taker chief of Niwaa Tuapim Stool of Duasi and he brought the action for himself and on behalf of his family. His pleadings and testimony and that of his witness was to the effect that the plot in dispute was originally numbered 14 but renumbered to plot No. 21 Block “A” following a rezoning layout for Duasi. That the said plot was acquired by his uncle Kwame Anokye (deceased) and that they have been in actual occupation of the plot for about 300 years without any interference. That upon the death of Kwame Anokye the subject plot devolved to him as trustee for the family having succeeded the said Kwame Anokye. The respondent said in the life time of Kwame Anokye, one Kofi Samanpa, an uncle of the 1st appellant a brother of the 2nd appellant, was his close friend. That the late Kofi Samanpa requested Kwame Anokye to sell the land in dispute to him but Kwame Anokye refused the request. Subsequently Kofi Samanpa requested to be permitted to pack his cement blocks on the land which Kwame Anokye acceded to since they were good friends. The respondent continued that there was a revision of layout of the town in 1964 but that only changed the plot numbers and did not affect the ownership of the land or the house thereon. According to the respondent, the appellants destroyed between 500 and 800 out of the 1000 blocks that he molded on the plot; That he reported the appellants to the Police and they claimed they bought the disputed plot from respondent’s uncle but they failed to produce any document to that effect; That the Police advised him to issue a writ which he did. He claimed the following reliefs per his Writ of Summons filed on 14/09/1995, namely:-

(i) Declaration of title to and possession of building plot No. 21 Block “A” Duasi

(ii) Damages for trespass

(iii) Perpetual injunction restraining the defendants, their servants, agents from interfering with the plaintiff’s plot No. 21 Block “A” Duasi.



3. Their case was that Houses at Duasi were built in a cluster manner. A new layout was therefore prepared for Duasi to put order in to the plan of the town. They said as a result of the new layout many of the buildings were re-demarcated and as a result of that the plot of the plaintiff/respondent moved in-front of the appellants’ family and the latter took the original position where their family and the respondent’s family had a house. The appellants claimed that since the respondent’s house was also on the land in dispute their uncle Kofi Samanpa paid compensation to the respondent’s uncle Kwame Anokye in order to demolish the said house to enable him put up a building on the plot. The compensation paid was £20 to Kwame Anokye and £4 and a bottle of schnapps to the witnesses.


That on the strength of the agreement Kofi Samanpa demolished both his own house and that of Kwame Anokye and molded a quantity of blocks on the said disputed plot. That Kofi Samanpa died in 1988 and was succeeded by the late Kwaku Asamoah who caused a building plan to be made for him so that he could build on the said plot. That when Kwaku Asamoah died, the original 1st defendant in this suit, Kwabena Poku succeeded him. That the respondent approached the late Kwabena Poku for permission to deposit his blocks on the subject plot which was allowed. The appellants contended that somewhere in April 1995 the 1st appellant asked the respondent to remove the blocks from the plot in dispute to enable him lay the foundation for the proposed building but the respondent refused. The appellants said they caused the blocks to be removed to make room for the funeral rites of the 2nd appellant’s ex-husband and denied that they caused damage to the blocks. The respondent caused the arrest of the 1st appellant and later on instituted the action against them. They denied the claim of the respondent.


The case went through a full trial at the end of which the trial Circuit Judge delivered judgment on 5th December 2011 in favour of the plaintiff/respondent for reliefs (i) and (iii) only, dismissing relief (ii) on grounds that same was not proved.


4. The defendants/appellants were obviously dissatisfied and aggrieved by this outcome. They consequently filed an appeal against the judgment on 14th February, 2012 on two grounds of appeal namely:-

(a) That the judgment is against the weight of the evidence adduced at the trial and

(b) Additional grounds of appeal shall be filed upon receipt of the Record of Proceedings.


On 30th July 2015, the appellants filed three additional grounds of appeal pursuant to leave granted by this court on 27th July 2015. These additional grounds are:-

1. The learned trial judge erred in law when he relied heavily on the weakness of the defendant’s case in arriving at the decision even though the plaintiff failed to tender any document in support of their claim or lead very convincing evidence.

2. The learned trial judge erred in law by not taking into account the huge inconsistencies between the evidence of the plaintiff and his pleadings and the evidence of PW1.

3. The trial judge failed to evaluate the whole of the evidence at the trial.


The appellants in their written Submission to the Court stated that they had abandoned these additional grounds of appeal. The additional grounds of appeal are accordingly struck out as having been abandoned.


We now consider the lone ground of appeal as a function of rehearing pursuant to Rule 8(1) of the Court of Appeal Rules, 1997, C. I. 19.



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

5. In the Supreme Court case of FKA CO. LTD VRS SARKODIE (2009) 22 MLR at page 98, the Supreme Court per Her Ladyship Georgina Wood CJ explained what was required of an appellate court when an appellant alleges that “the judgment is against the weight of evidence”. She stated as follows:- “an appeal is by way of rehearing particularly where the appellant alleges in his Notice of Appeal that the decision of the trial court is against the weight of the evidence…… in such a case it is incumbent on an appellate court in a civil case to analyse the entire record of appeal, take into account the testimonies and all documentary evidence adduced at the trial before arriving at its decision so as to satisfy itself that on a balance of probabilities, the conclusions of the trial judge are reasonably or amply supported by the evidence.”


Also Section 11 of the Evidence Act, Act 323 gives the parameters of the burden of producing evidence while S. 12 defines proof by a preponderance of probabilities.


S. 11(1) provides thus:


“(1) For the purposes of this Act, the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid a ruling on the issue against that party.”


Sections 11 (2) and (3) deal with the burden of producing evidence in criminal cases on the prosecution and accused respectively while S. 11 (4) also provides that:


“(4) In other circumstances the burden of producing evidence requires a party to produce sufficient evidence which on the totality of the evidence, leads a reasonable mind to conclude that the existence of the fact was more probable than its non-existence.”


S. 12 on the other hand, provides thus:


“(1) Except as otherwise provided by law, the burden of persuasion requires proof by a preponderance of the probabilities.

(2) “Preponderance of the probabilities” means that degree of certainty of belief in the mind of the tribunal of fact or the Court by which it is convinced that the existence of a fact is more probable than its non-existence.”


Sections 1(3) & (4) of Act 323 also provide thus:


“(3) The determination whether a party has met the burden of producing evidence on a particular issue is a question of law which shall be determined by the Court.

(4) Where the Court determines that a party has not met the burden of producing evidence on a particular issue the Court shall, as a matter of law determine the issue against that party.”


6. The above statutory provisions and case law provide the parameters within which to analyse and evaluate this appeal.


In arguing the lone ground of appeal, the appellants narrated the case of the plaintiff/respondent and tried to point out some inconsistences in his case. The plaintiff/respondent testified for himself and called only 1 witness an 82 year old man as PW1. Counsel argued at page 4 of his written submission that the corroborative evidence given by PW1 in support of the respondent’s case was hearsay on the grounds that he said one Anokye came to his uncle to discuss the issue on the plot in dispute, and that by the narration of this PW1, it was his grand uncle who in fact had the discussion and not him. He said PW1 failed to tell the court how he came by that information; hence he was speaking from hearsay. This rendition of the evidence of PW1 at page 4 of the Written Submission of the appellant is not borne out by the evidence in the Record of Appeal. The evidence-in-chief of PW1 can be found at pages 30 – 31 of the Record of Appeal. PW1 testified as follows:


“My late grand uncle called Kwasi Agyapong was a close friend of Kwame Poku. The said Poku is also deceased. He is related to the plaintiff. The land in dispute was the property of Kwame Poku. On his death, his younger brother called Kwame Anokye succeeded him. I was in the house with my late grand uncle Kwasi Agyapong one day, one Kofi Samanpa came to the place to tell my grand uncle that Kwame Poku was his friend who died living the land in dispute which had devolved to Komfo Anokye and that he invited my grand uncle to talk to Anokye to allow him buy same.


My grand uncle informed Anokye of same and he asked to be given some time to reflect on same.


Three (3) days later Anokye came to tell my grand uncle that he could not sell same because it is family property. My grand uncle informed Samanpa of same. He however pleaded with my grand uncle to talk to Anokye that in order not to lose waste (sic) the money he had at the time he should allow him to mold blocks on the land in issue so that he cart same away when he buys another plot and the Anokye agreed to same”


There is no mention of any uncle by PW1 in this testimony. PW1 did not fail to tell the Court how he came by the information. He said he was in the house with his late grand uncle Kwasi Agyapong when Kofi Samanpah came to engage in that conversation. In any event, if appellant was interested in the nitty grities of how PW1 heard the conversation, the opportunity was available to him to cross-examine PW1 on same but he failed to do so.


7. Appellants also made capital of the fact that PW1 further testified that respondents have put up a house on the building whereas the plaintiff/respondent never said so. But it is in evidence that the appellants had put up a building up to lintel level. These minor inconsistencies are to be overlooked since they are not material enough. The appellants, after reprobating the fact that PW1 testified that a portion of the land had been developed by them, now sought to approbate same at page 5 of their Written Submission by referring to PW1’s admission of same and went on to tender photographs to show that portions of the land had been developed without any objection from the respondent. Counsel for the appellants equated this to laches and acquiescence on the part of the respondent.


8. On the question of laches and acquiescence, the law is that a party who wishes to rely on such a defence must specifically plead same at the trial and lead evidence on same which the appellants failed to do. See the case of DUAGBOR & ORS V AKYEA-DJAMSON (1984-86) 1 GLR 697 where the Court of Appeal held at Holding 2 that:


“(2) Since the plaintiff did not plead estoppel by laches and acquiescence in any form or shape and since no evidence was given by the plaintiff to support that kind of estoppel it was wrong for the trial judge to have founded his judgment on estoppel by laches and acquiescence to defeat the co-defendant's counterclaim.”


In this appeal, the appellants merely repeated the case they put before the trial court. In one breath, they paid compensation to Anokye for the plot and in another breath, the re-zoning of the town vested the property in them. This was the contradictory evidence of DW1,a brother-in-law to the 1st appellant and DW2 the ex Odikro of the town in whose tenure the re-demarcation was done. The respondent denied all these allegations but the appellants offered no credible evidence in support of same. It is trite law that where an averment is made and same is denied, that averment is not proved unless credible evidence is led on same. See the case of MAJOLAGBE V LARBI (1959) GLR 190. It is also trite learning that re-demarcation does not change ownership of land and neither does a site plan per se vest title to land in any person. These were the only documents tendered by the appellants. That being the case, the trial judge was right on point when he held thus at page 18 of his judgment which can be found at page 93 of the Record of Appeal.


“It is instructive to note that looking at the totality of the evidence, defendants failed to lead credible evidence in support of their contention that the property in dispute became their family property after the re-zoning exercise. I do not think the site plan tendered by defendant’s vests title in them since same to me is self-serving”.


Upon evaluation of the entire evidence of the appellants it is our considered view that the trial judge was right in not believing the case put up by the appellants as none was credible. The 1st appellant, 52 years old, as a substitute for the deceased 1st appellant had no personal knowledge of the matters to which he testified. Hear him during cross-examination at page 40 et seq. of the Record of Appeal:-

“Q. In your evidence in chief you mentioned Op Samanpa

A. Yes

Q. When did he die

A. I can’t recollect the date

Q. What about Op. Anokye

A. I do not know

Q. Did you ever see Op. Anokye

A. Presently I did not see him. He died when I was young

Q. How young were you

A. Between 8 – 9 years

Q. Anything that was discussed between Op. Anokye and Op. Samanpa you were not privy to same and can’t tell what they dismissed.

A. I was informed by my elders”


Obviously then, his evidence was complete hearsay.


10. DW1, who is a brother-in-law of the 1st defendant testified that the land belonged to the Defendants family; but hear him under cross-examination at page 49, et seq of the Record of Appeal.

“Q. Do you know the late Op. Kwame Anokye?

A. No

Q. Have you heard of him?

A. No

Q. I put it to you that the late Op Kwame Anokye was a friend to Op. Samanpa who you claim to be your father-in-law.

A. I am not aware

Q. You will agree with me therefore that any discussion between the 2 concerning the land you can’t tell

A. No …..

Q. Op. Samanpa has a building which shares boundary with the plot in issue

A. It is my in-laws who told me so.”


DW1 was married to the sister of 1st appellant for 34 years at the time he gave his evidence. He testified to matters that took place over 60 years previously by which time he had not joined the defendant’s family. His evidence is obviously based on hearsay.


11. DW2 is the ex Odikro of Duasi who also testified on behalf of the appellants that the property was sold. The trial judge chose not to believe the evidence of DW2 as being less probable than the evidence of the respondent because he could decipher motive in the evidence of DW2. This is what the trial judge said at page 19 of his judgment which can be found at page 94 of the Record of Appeal


“I have my doubt about the credibility of DW2. This was someone who admitted under cross-examination that he once litigated with the plaintiff in another land matter encompassing all Duase lands but lost the said suit. I therefore see DW2 as someone who is using this suit as an opportunity to re-litigate with the plaintiff. In this regard I prefer the evidence of the plaintiff to that of the defendants on the preponderance of the evidence led”.


S. 80(2) of Act 323 itemises some of the matters that may be relevant to the credibility of a witness to include demeanour and the existence or non-existence bias, interest or other motive. See S. 80 (2) (a) and (e) of Act 323. As between the trial judge and the appellate court, it is the former that had the opportunity to listen to DW2 and to observe his demeanour and found DW2 as someone who was using the suit as an opportunity to re-litigate with the plaintiff. Appellate Courts are cautioned to be slow in reversing such findings of trial courts EFFISAH V ANSAH (2005-06) SCGLR 943.


12. An overall analysis and evaluation of the evidence on record demonstrates the evidence of the respondent is more probable than the evidence of the appellants; hence, in accordance with Section 1(4) of the Evidence Act 1975 Act 323 the court is duty bound as a matter of law to determine the issue against the appellants.


The sole ground of appeal is thus dismissed, and with it, the whole appeal.


Angelina M. Domakyaareh (Mrs)



E. K. Ayebi JA           I agree                       E. K. Ayebi



Torkornoo (Mrs), JA I agree      G. Torkornoo (Mrs)