AGANA VRS ATULE (UE/BG/ DC/A1/3/2022) [2024] GHAHC 374 (19 August 2024)

IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT OF JUSTICE – BOLGATANGA UPPER EAST REGION HELD ON 19TH AUGUST, 2024 BEFORE HIS LORDSHIP CHARLES GYAMFI DANQUAH, JA SITTING AS ADDITIONAL HIGH COURT JUDGE. SUIT NO. UE/BG/ DC/A1/3/2022 AGANA TIMOTHY. PLAINTIFF/RESPONDENT OF PRESBY EYE CENTRE BOLGATANGA – YOROGO VS BAWA ATULE. DEFENDANT / OF YOROGO – BOLGATANGA APPELLANT JUDGMENT This is an appeal from the judgment of the District Court, Bolgatanga presided over by His Worship Mawokoenya Nutekpor, given on 10th July, 2023. In the said case the District Court at the conclusion of the judgment made the following orders : 1. Plaintiff’s action succeed, thus, Plaintiff has established the existence of the facts contained in his claim by preponderance of the probabilities and the Plaintiff is declared the owner of the land in dispute or all that piece of land located at Asorigobisi – Yorogo as endorsed on the writ of summons. 2. Plaintiff is granted an order to recover possession of the land in dispute from the Defendant 3. The Defendant, his agents, assigns, privies and all those claiming through him is perpetually restrained from interfering with Plaintiff’s ownership, quiet enjoyment and use of the said land. 4. Cost of Two Thousand Ghana Cedis (Ghc 2,000.00) is awarded against the Defendant in favour of the Plaintiff. APPEAL BY THE DEFENDANT/APPELLANT On the 1st August, 2023 the Defendant/Appellant (hereafter referred to as the Appellant) filed his Notice of Appeal against the Plaintiff /Respondent (hereafter called the Respondent). The complaint was against the whole of the judgment including the consequential orders. The Grounds of Appeal were the following ; 1. The judgment is against the weight of the evidence. 2. The Magistrate in the Court below erred when he relied on the Survey Report that suggests that the disputed area forms part of Defendant /Appellant’s boundary on the ground and yet delivered judgment in favour of the Plaintiff /Respondent. 3. Further grounds of Appeal to be filed upon receipt of the record of Appeal. However, no additional grounds of Appeal was filed. The third ground of appeal which is that further grounds of Appeal to be filed upon receipt of the record of Appeal is no ground of appeal but just a notice that additional grounds may be filed. The relief sought by the Appellant from this Court is for the judgment of the District Court, Bolgatanga dated 10th July, 2023 to be set aside and judgment entered in favour of the Appellant. BRIEF FACTS OF THE CASE The Respondent on the 21st January, 2022 instituted an action at the District Court, Bolgatanga and claimed the following reliefs; 1. A declaration that the plot of land situate and lying at Asorigobisi-Yorogo measured an approximate area to the North 190 feet bounded to the South 210 feet to the East 120 feet and to the West 55 feet is the property of the Plaintiff. 2. An order of the Court restraining the Defendant, his agents, assigns, workmen from interfering with the enjoyment of Plaintiff’s property. 3. Cost. RESPONDENT’S CASE At the trial Court the Appellant denied the Respondent’s claim whereupon the Court made an order for pleadings and witness statements to be filed. The Respondents’s case is that he bought a Plot of land situate and lying at Asorigobisi-Yorogo in 2021 from one George Akolgo, put up a five bedroom house on same and was making extension on his land when the Appellant came with some people in a violent manner to cover the foundation the Respondent had dugged on the land. The Respondent reported the conduct of the Appellant to the Police. The Respondent’s grantor George Akolgo and one Atanga Akolgo were called at the Police station to describe the boundaries of the area in dispute but the Appellant disagreed with their demarcations. APPELLANT’S CASE The Appellant as already stated denied the Respondent’s claim and stated that the Respondent’s extension was an encroachment unto the Appellant’s portion of the land and that the Appellant never used any form of violence in drawing the Respondent’s attention to this fact. According to the Appellant the Respondent’s attempt to procure documents on the land at the Regional Lands Commission to cover the area in dispute was unsuccessful where the Respondent was told to stay clear of that portion of the land because it constituted the 40 feet reserved as the main road that passes to Asorogobiisi Primary School. EVIDENCE ADDUCED BY THE PARTIES AND THEIR WITNESSES AT THE TRIAL The Respondent in support of his case testified and called three witnesses. PW1 was the Respondent’s grantor Akolgo George, PW2 – Joseph Awuni and PW3 Atanga Akolgo who was the Appellant’s grantor. The Respondent at the trial stated that when the Appellant destroyed his materials and the Police came to the scene the Appellant informed the Police that where the Respondent was making the extension is a road. The Town & Country Planning Officers came into the matter and made it clear that where the Respondent was making the extension was not earmarked for a road. According to the Respondent when the Appellant came to the site the second time and was invited by the Police, he then claimed that the land in contention belonged to him. The Appellant’s grantor Atanga Akolgo PW3 was invited by the Police to the land and asked to show the boundaries of the land for which he sold a portion to the Appellant. The Appellant’s grantor showed his boundaries without entering the disputed land. To resolve the issue between the parties a composite plan of the area was drawn by the Survey Department of the Lands Commission and tendered in evidence as Exhibit CE 1. Before the Composite Plan was even tendered in Court, same was interpreted at the Police station and the Appellant told in clear terms that the area in dispute belonged to the Respondent. The Appellant also testified and called two witnesses. The Appellant tendered in evidence Exhibit 1, a statutory declaration evidencing the purchase of the Appellant’s land. According to the Appellant the Respondent built his house in such a way that no space or pass way fence wall was left. When the Respondent embarked on the extension the Youth of Yorogo Asorogobiisi intervened and resisted the Respondent. The Youth later petitioned the Bolgatanga Municipal Assembly. The fundamental issue for determination at the trial Court was whether the area in dispute belonged to the Appellant or the Respondent. AN APPEAL IS BY WAY OF REHEARING In the case of NORTEY No. 2) vs AFRICAN INSTITUTE OF JOURNALISM AND COMMUNICATIONS & OTHERS (No. 2) (2013-2014) 1 SCGLR 703 the Supreme Court stated: “ This Court has stated in numerous cases such as TUAKWA vs BOSOM (2001- 2002) SCGLR 61, QUARCOOPOME vs SANYO ELECTRIC TRADING CO. LTD (2009) SCGLR 213,229; OPPONG vs ANARFI(2011) 2 SCGLR 556 that an appeal is by way of rehearing, particularly where the Appellant alleges as in the omnibus ground that the decision of the trial Court is against the weight of the evidence. In such a case it is incumbent on the appellate Court such as this, 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 preponderance of the probabilities, that the conclusions of the trial Judge are reasonably or amply supported by the evidence.” So also in the case of KORANTENG II & OTHERS vs KLU (1993-94) 1 GLR 280 SC the Supreme Court stated that: “ An appeal was by way of rehearing and so the appellate Court could necessarily review the evidence on record in the course of its deliberations to find out whether or not the trial Court arrived at the right conclusion. Accordingly, the Court of Appeal was justified in requiring Counsel to argue the appeal on the basis of the detailed grounds of appeal the plaintiffs had filed before the Court rather than as if the matter was before the High Court.” RESOLUTION OF THE GROUNDS OF APPEAL. In the resolution of the grounds of appeal l will first deal with the 2nd ground of appeal which is that the Magistrate in the Court below erred when he relied on the Survey Report that suggests that the disputed area forms part of the Defendant/Appellant boundary on the ground and yet delivered judgment in favour of the Plaintiff /Respondent. In his submissions filed on 8th May, 2024 learned Counsel for the Appellant indicated and dwell on the analysis made by the learned trial Magistrate and stated that judgment should not have been entered in favour of the Respondent. The trial Court after evaluation of the evidence deemed it proper to rely on the Survey Report. He stated in clear terms that there was no reason not to rely on the Survey Report. However, this was the area of disagreement expressed by learned Counsel for the Appellant. Learned Counsel relied on the encounter between the Respondent and the Surveyor who prepared the Composite Plan. In cross examination the following is what transpired: Q. You will thus confirm to the Court that the disputed land does not form part of the Defendant’s sketch plan. A. Yes, the disputed land does not form part of the Defendant’s sketch plan from Town and Country Planning but it forms part of the Defendant’s boundary as he showed on the ground. Learned Counsel for the Respondent in his submissions stated that the Appellant does not know the limit of his land both on the ground and on his documents at the Town and Country Planning. Counsel therefore concluded that the Appellant does not know the limit and extent of his land. This position of learned Counsel for the Respondent is the case because the Appellant’s grantor in his evidence in chief made it clear that the Appellant does not know the boundaries of his land. The Appellant’s grantor Atanga Akolgo testified that he sold a plot of land out of his land to the Appellant. At paragraph 7– 15 of his witness statement the Appellant’s grantor who was PW3 stated as follows: 7. I sold a plot of land out of my land to the Defendant. 8. The Defendant is in possession of this plot without any interference from anybody. 9. The disputed area the Defendant is laying claim to is not part of my land and is not part of the plot l sold to him. 10. I heard of the instant case from the grantor of the Plaintiff but the Defendant has not inform me. 11. Upon hearing this, l and the Plaintiff’s grantor met the Defendant at the disputed area and l showed all my land boundaries to the Defendant and told him in clear terms that the disputed area does not form part of my land. 12. The Defendant ignored my clarification and stated that he knows the boundaries of my land more than l do. 13. When the Plaintiff reported the issue to the Police l went to the Police Station to tell the Police what l know about the case. 14. When the Police visited the site l was asked to show them the boundaries of my land which I did without entering the disputed land. 15. With all my explanation as well as showing the boundaries of my land to the Police, the Defendant was still retorted that l do not even know the boundaries of my own land. I intentionally reproduced the evidence of the Appellant’s grantor to show that the evidence of the Appellant’s grantor was totally against the Appellant’s case. This was a case where a grantee claimed to know more about the land than his grantor. Under the law a grantor has a duty to sue or defend jointly with his purchaser in any dispute relating to the land sold and the purchaser has a corresponding duty to bring his vendor into the suit in his own interest. See the case of EGYIR vs HAYFRON (1984-86) 1 GLR 510. So also in the case of BRUCE vs QUARNOR (1959) GLR 292 @ 294 the celebrated Ollennu, J (as he then was) stated as follows ; “By native custom, grant of land implies an undertaking by the grantor to ensure good title to the grantee. It is therefore the responsibility of the grantor, where the title of the land is challenged, or where the grantee’s possession is disturbed to litigate his (grantor’s) title to the land, in other words to prove that the right title or interest to which he purported to grant was valid.” In the case at hand however, the Appellant’s grantor was unshaken and stood firm that the land he sold to the Appellant does not include the land in dispute. The Appellant knowing very well the area in dispute does not belong to him failed to join his grantor or call him as a witness. The opposite was the case as the Appellant’s grantor testified in clear terms that the land he sold to the Appellant excluded the area in dispute. The evidence and answers from the Surveyor is clear that the land in dispute is not a road as contended by the Appellant. In cross examination the following is what transpired between the Surveyor and the Respondent: Q. Per this document on the legend point 6 can you tell the Court or confirm to the Court there is not a road on it. A. Per the layout from the Town and Country Planning, there is proposed road on the Western part of the disputed area. With this answer, what it means is that the disputed area is not a road because the very State Institution in charge of the physical planning of areas in Ghana confirmed that the area in dispute is not a road. The contention of the Appellant initially was that the area in contention was a road and then changed the story that the area belonged to him. The question is, if the Appellant had not contended that the area is a road then l do not see how the Appellant influenced the Youth to write petitions on the land in dispute to the Municipal Assembly. The position of learned Counsel for the Appellant is that the learned trial Magistrate failed to consider the evidence of the Surveyor and therefore came to the wrong conclusion. From the totality of the evidence as far as the the first ground of appeal is concerned, the learned trial Magistrate never made a finding that the disputed area formed part of the Appellant’s land. What the Report rathar stated or what the Surveyor stated in an answer in cross examination is that the disputed land does not form part of the Appellant’s land sketch plan from Town and Country Planning but it forms part of the Appellant’s boundary he showed on the ground. This answer is in relation to boundary and not that the Appellant’s land stretched into the area in dispute. The first ground of appeal is therefore dismissed as unmeritorious. GROUND ONE OF THE APPEAL The first ground of appeal is that the judgment is against the weight of the evidence. In the case of DJIN vs MUSA BAAKO (2007-2008) 1 SCGLR 686 cited by learned Counsel for the Appellant, the Court at holding 1 stated: “ Where (as in the instant case), an appellant complains that a judgment is against the weight of the evidence, he is implying that there were certain pieces of evidence on the 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.” Learned Counsel for the Respondent in arguing the first ground of appeal cited the case of AMPOMAH vs VRA (1989-90) 2 GLR 28 where the Court on the omnibus ground of appeal stated: “ Where an appellant charged the judgment of the Court was against the weight of the evidence, there was a presumption that the judgment of the Court below on the facts was correct. The Appellant in such a case therefore assume the burden of showing from the evidence on record that the judgment was indeed against the weight of evidence.” It appeared from the submissions made by learned Counsel for the Appellant that in arguing the omnibus ground of appeal, what was discussed under the second ground of appeal was repeated. They were all about the Surveyor and the Survey Report. I do not see the difference between the two grounds of Appeal as far as the submissions are concerned. The Appellant has no counterclaim. Meanwhile, the case was fought by the filing of pleadings. While the Respondent has a claim, the Appellant has no counterclaim. The Appellant never counterclaim for the land in dispute in spite of the fact that he was represented by Counsel. The Appellant’s case from the time he and his workmen went to stop the Respondent from carrying out the extension to his house never claimed the disputed property as his. At one point the Appellant claimed the area in dispute was a road. This was because were it the case that the Appellant was fighting for the protection of his own land, then he needed no assistance from the youth of the community to do so. It appeared the Appellant was not on top of his own case and as stated in the case of NENE NARH MATTI & 2 OTHERS, OYORTEY VS TEYE ( CONSOLIDATED) (2017-18) 1 SCGLR ( Civil Appeal No. J4/13/2017) cited by learned Counsel for the Respondent, it is a general principle of land law that any land owner who does not know the extent and limit of his land cannot succeed on any claim he puts before the Court. The story of the Appellant kept changing and that made his defence not probable. I do not find any merit in the appeal and same is dismissed in its entirety. The judgment of the learned trial Magistrate is affirmed. The Respondent’s case was proved on the preponderance of the probabilities with the requisite evidence. COST: Cost of Ghc 3,000.00 is awarded against the Appellant. HIS LORDSHIP CHARLES GYAMFI DANQUAH, JA (SITTING AS ADDITIONAL HIGH COURT JUDGE.) COUNSEL: 1. KENNETH ADABAYERI, ESQ FOR THE DEFENDANT /APPELLANT. 2. DIVINE KAFUI AKPALU, ESQ FOR THE PLAINTIFF/RESPONDENT.