KONJA VRS SARPONG & ANOTHER (C11\03\2022) [2024] GHAHC 217 (9 May 2024)

IN THE SUPERIOR COURT OF JUDICATURE IN THE HIGH COURT HELD AT WENCHI/BONO REGION ON THURSDAY THE 9TH DAY OF MAY, 2024, BEFORE HIS H/L JUSTICE FREDERICK A.W.K. NAWURAH, JUSTICE OF THE HIGH

COURT ____________ SUIT NO: C11\03\2022

BABA KONJA v. MR. & MRS. SARPONG

JUDGMENT ON APPEAL This is an appeal from the judgment of the Atebubu District Court delivered on the 29th of September, 2021, by which the decision of the trial District Court in the matter herein, a land cause, was delivered in favour of the Defendants. In these proceedings, I will retain the description of the parties which they had before the trial District Court. Before me, the Plaintiff has lodged an onslaught against the judgment of the District Court on three main grounds. These grounds relate to the capacity of the plaintiff to mount the action and the entire judgment of the District Court. The backdrop to the action herein may be briefly narrated as follows. The Plaintiff sued the Defendants before the Atebubu District Court claiming the following reliefs: a. Declaration of title and possession of all that piece and parcel of building Plot No. 210, Block E, Sector 5 lying and situate at Atebubu which the Defendants have trespassed and made adverse claim of it; b. An order restraining the defendants, their workmen, agents, labourers, relatives and any other person(s) from entering on the said plot till the final determination of the suit; and 1 c. General damages for trespass and any further order(s) as the Honourable Court may deem fit to make. The Plaintiff’s claim is that in the year 2014, he acquired Plot Number 210 Block E Sector 5 situate at Atebubu from one

Musah Sule who had purchased the land from the Omanhene of Atebubu in the year 2011. In 2017 he procured a building permit from the District Assembly but could not commence construction of his building on the plot due to an accident he had had. In July, 2020 he visited the plot only to find that a building was being erected on it. Upon his enquiries he was directed to the Defendants who maintained on their part that they had purchased the plot from the District Assembly Plot Allocation Committee as Plot Number 208 Block E Sector 5 and also confirmed that it was they who were putting up the building on the plot. The Plaintiff therefore made a complaint to the Plot Allocation Committee but they denied selling his plot to anyone. The Plot Allocation Committee finally met with the parties on the land in dispute but, without even looking at his site plan, they told him that the plot of land the Defendants were developing was not his plot. They then went and showed him a different plot as his but someone had put sand and stone chippings thereon. It is the case of the Plaintiff that the land the Defendants are building on is his land, i.e. Plot Number 210 Block E Sector 5, and not Plot Number 208 Block E Sector 5 that the Defendants claim to be theirs. Provoked by the alleged actions of the Plot Allocation Committee whom he suspects had connived with the Defendants to deprive him of

his land, the Plaintiff, initiated the action against the Defendants at the Atebubu District Court claiming the reliefs referred to supra. The Defendants completely denied the Plaintiff’s claim and joined issue with him on all his averments. The Defendant’s story, in essence, is that they acquired Plot Number 208 2 Block E Sector 5 from the Atebubu Plot Allocation Committee in April 2020, and were given all the necessary documents to the land and subsequently taken to the plot and put in possession by the Plot Allocation Committee. After being put in possession of the plot, they proceeded to construct their building thereon. It is the case of the Defendants that it is their own Plot Number 208 Block E Sector 5 that they are building on. After the trial, Trial District Court, presided over by His Worship Joseph Twumasi Esq., dismissed the Plaintiff’s claims and awarded costs to the Defendants. Dissatisfied with the decision of the Trial District Court, the Plaintiff filed an appeal before this Court praying that the whole judgment be set aside or reversed and judgment entered in his favour on the grounds that: i. The judgment is against the weight of evidence adduced at the trial. ii. The Honourable Magistrate erred when he ignored the pending written application of the Plaintiff for the appointment of a licensed surveyor to resolve the situate and lying of the plot in dispute,

Plot 210. iii. The Trial Magistrate erred in refusing the Plaintiff to tender in evidence his building permit for his plot 210 issue by the Municipal Assembly whilst the Defendants were building on the plot 210 without a building permit contrary to the provisions in Land Use and Spatial Planning Act, 2016 (Act 925). (sic). The law is settled that when an appeal is filed on the omnibus ground of appeal “that the judgment is against the weight of evidence adduced at the trial”, the appellate court is obligated to review the entire record and correct any errors made by the trial judge in evaluating witness testimony and exhibits. See: Tuakwa v. Bosom [2001-2002] SCGLR 61. This includes three types of errors: incorrect evaluation of evidence, failure to consider relevant evidence, and jurisdictional or capacity issues that are fundamental to the appeal. See: Dora Boateng v. Mckweon Investment Limited (2017) JELR 91877 (CA), per Dennis Adjei J.A. 3 In the case of Tuakwa v. Bosom (supra), the Supreme Court held that appeal is by way of rehearing but where an appellant in his notice of appeal states that the judgment is against the weight of evidence on record, the appellant invites the Court to evaluate the veracity of the witnesses, analyse the entire record of appeal including the exhibits tendered and come to a conclusion having regard to the standard burden of proof in civil

matters, that is proof by the preponderance of probabilities. In the case of Djin v. Musa Baako (2007-2008) SCGLR 636 it was held that: "Where as in the instant case an appellant complains that a judgment is against the weight of evidence, he is implying that there are certain pieces of evidence on record which if applied in his favour could have changed the decision in his favour, or certain pieces of evidence have been wrongly applied against him. The onus is on such an appellant to clearly and properly demonstrate to the appellate court the lapses in the judgment being appealed against." See also the cases of Akuffo Addo v. Catheline (1992) GLR 377 SC, and Praka v. Ketewa [1964] GLR 423. The first issue the Plaintiff has with the judgment of the Trial Magistrate is that the Trial Magistrate committed a contradiction in his judgment when he stated that on the parties site plans it was only a lane that separated plot 208 from plot 209, but on the ground they could be seen as sharing a common boundary. In support of this assertion, Learned Counsel for the Plaintiff sought to convince the Court that, given that per the site plans of the parties plot 209 shares common boundary with plot 210, then it stands to reason that, as the plot the Defendants are developing shares common boundary with plot 209, that plot must necessarily be plot 210 and not plot 208 which is separated from

plot 209 by a lane. 4 As convincing in its logic as Learned Counsel for the Plaintiff’s argument may appear to be, the undeniable fact remains that the very people who were responsible for allocating lands at Atebubu, and who did allocate the parties plots to them, i.e. the Atebubu Town and Country Planning Office and the Atebubu Plot Allocation Committee, visited the land in dispute with the Trial Magistrate and the parties and clearly indicated to the Plaintiff that the land in dispute is plot number 208. This fact was stated by the Technical Officer of the Town and Country Planning Office, Atebubu, in both his Report to the court below (at page 3 of the record of appeal) and in his sworn testimony before the court as an Expert Witness. This witness told the Trial Court that he had based his findings on both the Agency’s database and the observations made when they visited the site with the parties. Then again, it is unclear to me at what stage in the proceedings that it became accepted that the plot the Defendants were building on shared common boundaries with plot number 209 as Learned Counsel for the Plaintiff seeks to rely on as the logical basis for the location of plot number 210. It appears to me that the only time any reference was made about the land in dispute sharing common boundary with plot number 209 was during the cross-examination of the Plaintiff’s second

witness (PW2). Under cross- examination by the Defendants, at page 41 of the record of appeal, he explained his basis for believing that the land in dispute was plot number 210 thus: Q. What make you believe that this particular plot is 210? A. a plot that shares common boundaries with 210 is number 209. However, this same witness (PW2), went on to agree with the Defendants that it was only the Town and Country Planning Officer and the Plot Allocation Committee that could determine the exact location of each plot. Under cross-examination by the Defendants, at page 44 of the record of appeal, he stated thus: Q. It is only the Town and Country Planning Officer and Plot Allocation Committee who can indicate where each plot examples plot number 210 lies? 5 A. That is correct. Q. So if these groups of institutions points to a plot as 208 would you agree? A. I will agree/accept. Quite clearly, the claim by PW2 that the land in dispute shares common boundary with plot number 209 was just a fleeting expression of his belief that the land in dispute belonged to the Plaintiff. However, even PW2 was prepared to accede to the verdict by the Town and Country Planning Officer and the Plot Allocation Committee on the identity of the land in dispute. In the face of such definite pronouncement by those whose job it is to allocate and who did allocate to the parties’ their plots, it does not

sit with common sense and logic to ignore such compelling evidence and opt for the disgruntled theoretical permutations of a disgruntled claimant. I find that the claim that the land in dispute shares common boundary with plot number 209 is neither a confirmed nor an admitted fact on the record. Learned Counsel for Plaintiff’s reliance on such an unsubstantiated claim as the basis for his assertion that the Trial Magistrate committed a contradiction in his judgment is therefore unjustified. I therefore reject his argument regarding the alleged contradiction by the Trial Magistrate as unfounded and untrue. The second issue the Plaintiff has with the judgment of the Trial Magistrate is that the that the Trial Magistrate erred when he ignored a pending written application of the Plaintiff for the appointment of an independent Licensed Surveyor to resolve the issue of the identity of the land in dispute. At page 6 of his written address, Learned Counsel for the Plaintiff surmised on the effect of the failure of the Trial Magistrate to appoint an independent Licensed Surveyor to resolve the issue of the identity of the land in dispute as follows: 6 “It is a practice direction that where parties have filed their site plans and they are disputing the location of the land in dispute, it enjoins the judge and for that matter a magistrate to have a licensed surveyor to prepare a

composite plain to assist the jurist in adjudicating the matter. The Magistrate erred in refusing the appointment of a licensed surveyor to assist in locating the situate of plot no. 210 upon the request of the Plaintiff, even though a court is not bound by an expert evidence.” (sic) It must also be noted that a Court is not bound to order for expert opinion. The Court has the discretion to appoint a referee or an expert witness if it deems it necessary to resolve a fact at issue. However, the Court is not duty-bound to do so, especially if it can resolve the issue based on the available evidence. In the case of Mohammed Wolley v. Salami Fatal (2014) JELR 68775 (SC), the Supreme Court in addressing the issue of whether or not the failure of a trial judge to appoint an expert to resolve the matter in dispute, stated per Wood (Mrs.) CJ (as she then was) thus: “Allied to the argument that the claim was not proven, is the charge that the court erred in failing to “appoint a referee to resolve the accounts... when the action was in substance one for accounts.” This argument lacks merit. No mandatory duty is cast on a court to appoint a referee, or for that matter an expert witness, whose evidence in any event is classified at law as opinion evidence, and so clearly not sacrosanct or conclusive, if from the available evidence, the court is in a position to resolve the fact at

issue.” It is manifestly clear from the above dictum of the Supreme Court that when an expert opinion is presented in court, the Court is not bound by it. The Court has the responsibility to evaluate all the evidence on record, including the expert opinion, to determine if it is sustainable or not. While the Court does not necessarily have to endorse the expert opinion of a surveyor, it can accept it if there are no compelling legal reasons not to do so. The decision on the ultimate issue rests with the judge, who can draw his own inferences from all the pieces of evidence, including the expert evidence or report. 7 From the record of proceedings in this case, the Town and Country Planning Officer (CW1) was very clear and concise in his findings from his observations at the locus inspection as well as the records from his office as to the fact that the land in dispute is plot number 208. CW1’s findings were fully corroborated by the Plot Allocation Committee Chairman (DW1). His findings are clearly stated in his Report at page 3 of the Record of Appeal as follows: “In response to the order made by the District Magistrate court held at Atebubu on 29th September, 2020, requesting for our assistance regarding the above land dispute, the Physical Planning Department, Atebubu, humbly submit the findings on the site inspection conducted. The Registrar and the District Magistrate took

the inspection team, led by the Acting Planning Officer together with two other officers to visit the disputed site on 13th of October 2020. After the first visit to the site, several visitations had been made in other to ascertain the correct technicalities on grounds. I therefore write to the honorable court our initial observations. Our observations are as follow: ➢ The building under construction is on plot number 208 block E Sector 5 ➢ There is no any physical structure on Plot Number 210 block E sector 5, however there are trips of sand and Gravels on the land.” The law is settled that the primary purpose of a visit to the locus is to clear doubts which arise during the hearing and not to find evidence in support or to destroy the case of one party or the other. Locus inspections are not granted for any flimsy reason but to help resolve a conflict which visual inspection would help unravel. Such instance may arise when the identity of the land or any physical feature of it is in dispute and which a visit to the land would resolve. See: Abed Nortey v. African Institute of Journalism & Communication, Stephen Nartey And Daniel Nartey (2014) JELR 68642 (SC). 8 In the face of such clear and definite findings made by the Trial Magistrate from the available evidence presented by the Technical Officer, Town and Country Planning, Atebubu (CW1), as to the identity of the land in

dispute, there was obviously no need for the Trial Magistrate to call an expert or surveyor to determine the same issue. In the instant appeal, given the circumstances under consideration, the request of the Plaintiff for the Trial Magistrate to appoint an independent Licensed Surveyor to resolve the issue of the identity of the land in dispute was unwarranted and unnecessary. A close examination of the said letter requesting for an independent Licensed Surveyor clearly shows that the said letter was written in bad faith and essentially consisted of a baseless attack on the Technical Officer, Town and Country Planning, Atebubu (CW1) for unproven bias. The letter, which can be found at page 4 of the Record of Appeal states thus: “PERTITION AGAINST REPORTS WRTTEN BY TONY MENSAH I write to appeal to the court to reject the reports written by Tony Mensah, the acting town planning officer and to order for independent license land surveyor from Sunyani to determine the location of plot No. 210 Sector five (5) Block E. The following are my reasons; The said officer (Tony Mensah) is not qualify to write such reports. Again, he involved one Yaw Gyan in the measurement when the court moved to the site together with the parties involved in the suit The acting town planning officer conniving with the plot allocation committee in written of the reports. I would be grateful if the honorable

court could refused the fake report and invite the independent surveyor to revisit the plot and write genuine report for genuine judgement. I hope my request would be granted in due cause.” 9 (sic) On the very face of it, the allegations against the Technical Officer, Town and Country Planning, who was also referred to as the Acting Town Planning Officer, Atebubu, are clearly baseless. There is no reason why the Technical Officer, Town and Country Planning, Atebubu who was also the Acting Town Planning Officer could be said to be unqualified to write a report on the identity of a plot of land that his office had captured in their records. I cannot imagine anybody more qualified than him to write that report. Then again, I find the involvement of the said Yaw Gyan, who was the field Officer for the Plot allocation Committee, in the locus inspection rather of high importance as it was necessary to involve the Plot allocation Committee in the said inspection to guarantee a more definitive outcome. The Plaintiff’s aversion to his presence at the inspection after the fact was clearly unwarranted, and his allegations of connivance between CW1 and the said Yaw Gyan in the writing of the Report without more is neither here nor there. Mere connivance or involvement in the writing of a report is not wrong unless it can be proven for a fact that the connivance was for an unlawful purpose.

I therefore find that, in the absence of any proven bias or illegality on the part of the Technical Officer, Town and Country Planning, Atebubu, the Trial Magistrate acted perfectly within his rights in ignoring the Plaintiff’s petition and proceeding to determine the matter on the basis of the evidence adduced at trial. The last point of criticism raised by Learned Counsel for the Plaintiff against the judgment is that the Trial Magistrate erred in refusing the Plaintiff’s request to tender in evidence his building permit for Plot Number 210, particularly as the Defendants had no Building Permit for their project. According to Counsel, the Building Permit would have shed more light on the exact location of plot number 210. Counsel also contends that the fact that the Defendants were building on the plot in dispute without a permit implied that they knew that the plot did not belong to them. 10 I have thoroughly examined the Record of Appeal and I find that, contrary to Counsel for Plaintiff’s assertions that the Trial Magistrate refused to allow the Plaintiff to tender his Building Permit in evidence, there is actually nothing on the record to that effect. The record rather shows that it is the Plaintiffs documents covering his plot of land which the Plot Allocation Committee had called for in 2015 that were to be submitted later. The Plaintiff’s evidence-in-chief at page 30

of the Record of Appeal confirms this fact thus: “I am Baba Konja.I live in Atebubu. I work at the Ghana Health Office. I know te defendants. I acquired a plot of land allocated at sector 5 block ‘E’ plot number 210 at Agric Station a suburb of Atebubu. I purchased it from a colleague who bought it from Omanhene of Atebubu. Musah Sule is the colleague. He had put two trips of sand on it. I also deposited additional two trips of sand on the plot. I came to court with Musah Sule to change ownership of the land. In 2015, a plot allocation committee was set up in Atebubu. They called for my documents to setup a database. Before that time, there was nothing like this. (Documents to be submitted later) In 2016, I applied for a building permit. I got it in 2017. In 2020, where I came out from school I went to the plot and saw a structure being raised on the plot. I went to plot allocation committee to verify. They said plot number 210 belongs to me.” (sic). The issue of Building Permit came after the note stating that “Documents to be submitted later”, thus the note was obviously referring to the documents that had been mentioned earlier. Nowhere on the record is it stated that the Plaintiff was going to or intended to tender his Building Permit later. Thus, quite clearly, Learned Counsel for Plaintiff’s claim that the Trial Magistrate refused to allow the Plaintiff to tender his

Building Permit is unfounded and smacks of mischief. 11 In any case, I do not see how a Building Permit could throw light on the exact location of plot 210 or on the identity of the land in dispute as Counsel asserts. Counsel has also failed to explain exactly how that could be done. What is evident is the fact that the issue of whether or not the Defendants commenced their building without having first procured a Building Permit has nothing to do with the identity of the land in dispute. I therefore find Learned Counsel for the Plaintiff’s accusations that Trial Magistrate refused to allow the Plaintiff to tender his Building Permit, and that the Defendants were building in a hurry and without a Building Permit because the land did not belong to them, unsubstantiated and rather far-fetched and same are dismissed accordingly. From all of the foregoing, there is no merit in the appeal and it is accordingly dismissed. The decision of the Atebubu District Court is hereby affirmed. I award costs of four thousand Ghana Cedis (GH¢4,000.00) to the Defendants/Respondents against the Plaintiff/Appellant. (SGD.) H/L JUSTICE FREDERICK A.W.K. NAWURAH

JUSTICE OF THE HIGH COURT COUNSEL: ▪ Kwasi Opoku Esq. for the Plaintiff /Appellant 12