Somuah & 2 Ors Vrs Odamatey & Anor [2023] GHASC 57 (22 March 2023)

IN THE SUPERIOR COURT OF JUDICATURE IN THE SUPREME COURT ACCRA - A. D. 2023 CORAM: PWAMANG JSC (PRESIDING) OWUSU (MS.) JSC LOVELACE-JOHNSON (MS.) JSC PROF. MENSA-BONSU (MRS.) JSC KULENDI JSC CIVIL APPEAL NO. J4/16/2021 22ND MARCH, 2023 1. FREDERICK YAW AGYAKWA SOMUAH PLAINTIFFS/RESPONDENTS 2. ADAMS ADDY APPELLANTS 3. ADU ADDY VRS 1. NII ODAMATEY ……. 1ST DEFENDANT/APPELLANT 2. F. K. A. COMPANY LTD. …. 2ND DEFENDANT/APPELLANT/RESPONDENT JUDGMENT LOVELACE-JOHNSON (MS.) JSC:- The designation of the parties at the high court will be maintained in this appeal. By a writ dated 2nd September 2011, the plaintiffs issued the present writ against the 1st defendant for the following reliefs a. A declaration of title of all that piece or parcel of land situate at Ashaaladza near Kasoa, Accra and bounded on the North by lessor’s land measuring 450 feet more or less on the East by a Proposed Road measuring 880 feet more or less on the south by Proposed Road measuring 450 feet more or less on the west by Proposed Road measuring 880 feet. b. Recovery of possession c. Damages for trespass d. Perpetual injunction e. Cost The 1st defendant denied the plaintiffs claim by a statement of defence filed on 22nd November 2011, which was later amended on 20th February 2013. By an order dated 20th March 2013, the 2nd defendant was joined to the suit as such. He filed a defence to the amended statement of claim of the plaintiffs on 18th April 2013 and counterclaimed for a. Declaration of title to land described in schedules below b. Recovery of possession of any portion of 2nd defendant’s land trespassed unto by the plaintiffs and 1st defendant and that any offending structures placed on the land be removed at cost to the plaintiffs and 1st defendant c. Damages for trespass d. Perpetual injunction restraining the plaintiffs and 1st defendant, their agents, assigns and workmen from dealing with the land in dispute in any way detrimental to interest of 2nd defendant. Schedules A, B and C described the three parcels of land 2nd defendant was counter claiming for. At the end of the hearing, the high court entered judgment for the plaintiffs in the terms sought in their writ, as reproduced above. Dissatisfied with this, both defendants filed notices of appeal on 9th December 2013 and 18th December 2013 respectively but it was the 2nd defendant which prosecuted its appeal and by way of relief sought the setting aside of the judgment of the high court and the entry of judgment for them instead. The court of appeal by a judgment dated 13th May 2020 allowed the 2nd defendant’s appeal, set aside the judgment of the high court and entered judgment for the 2nd defendant in respect of their counter claim. Dissatisfied with this judgment, the plaintiffs have appealed to this court for the setting aside of the court of appeal judgment on the following grounds a. The judgment is against the weight of evidence b. The Court erred in deciding that the land in dispute falls within Danchira without the benefit of a visit to locus or expert witness. c. The Court erred in overruling judgments of High court, Accra on the issue which are in evidence. d. The court erred in not finding as a fact that the Ashalaja lands belong to Akwanor family. e. The court erred by interfering with the finding of fact made by the trial court See page 276 of volume 3 of the Record of Appeal (ROA). The basis of the plaintiffs claim in this matter as gleaned from their amended statement of claim and as it relates to the 2nd defendant is that (page 181 of the ROA) on 26th March 1997, 1st plaintiff acquired a 99 year lease from 2nd and 3rd plaintiffs in their capacity as joint heads of the Akwanor family of Ashalajah, Accra, whose predecessor in 1974 had registered a statutory declaration over Akwanor lands. They also had a high court judgment in support of their ownership of these lands. They allege that 1st defendant encroached upon the land and that 2nd defendant has also started falsely laying claim to parts of the land in dispute and fraudulently acquired registered deeds on the land from persons with no title to them and registering same. As stated earlier the 2nd defendant counterclaimed for declaration of title, recovery of possession damages for trespass and perpetual injunction against plaintiffs and 1st defendants and stated that the disputed land did NOT belong to the plaintiffs or 1st defendant. They based their counterclaim for the parcels of land described in the schedules of their counterclaim on a grant from the Nii Djan-Bi Amu Family who they say own Danchira lands of which the disputed land forms a part. They also relied on judgments given by the court of appeal and Supreme Court in favour of their grantors. The 1st defendant who was not an appellant before the court of appeal and is also not an appellant before this court had in the trial court claimed that the disputed land, which formed part of a larger tract of land fell within Bofiase lands, an area over which he is Chief and which together with Ashalaja are villages founded by the James Town Stool. His position is that the disputed land shared boundary with Ashalaja and Danchira and did not form part of these two. We must state that the manner in which both counsel presented their statements of case did not give this court the required help. It required much effort to distill the arguments counsel sought to make since they were not argued under the filed grounds of appeal as is the usual practice. A well prepared and set out statement of case is an invaluable aid to the determination of the issues raised in such grounds. The arguments of counsel for the plaintiffs in his statement of case on the omnibus ground of appeal, from pages 8 to 16, apart from addressing us on what is required when a judgment is said to be against the weight of evidence, dealt with the case against the 1st defendant in the trial court who is NOT an appellant in this court (and indeed was not an appellant at the court of appeal) and seeks to show how the evidence led at the trial court does not support the said 1st defendant’s contention that the James Town Stool has some rights over Ashalaja lands. Perhaps this arises from the obvious mistake in the item numbered 3 which is titled RELIEF SOUGHT FROM THE COURT OF APPEAL even though the appeal has been filed in this court. The position then is that the plaintiffs have not made any submissions in support of their 1st ground of appeal that the judgment is against the weight of evidence. It is trite that the onus is on an appellant who makes such a complaint to point out the lapses in the judgment on appeal. See Djin vs Musa Baako [2007-2008] 2 SCGLR 687 The manner in which ground (c) is couched is incomprehensible but grounds (b) (d) and (e) are sufficient to call for an examination of the evidence on record in performing our statutory duty of rehearing the matter save the interference with findings of fact properly made. Counsel’s arguments which relate to appeal ground (b) can be found in the last paragraph of page 24. Counsel states as follows “It is our humble view that without the benefit of a visit to the locus and expert evidence, the court of appeal erred in finding as a fact and actually declaring that the land falls within Danchira land and therefore belongs to Nii Djanbi Au family, the grantors of the 2nd Defendant/Appellant/Respondent.” On ground (d), counsel contends that exhibit 12 tendered by 2nd defendant did not relate to the land in dispute, and was also not binding on the Akwanor family since they were not parties to the suit and in any case it related to a boundary dispute. In relation to ground (e) which alleges interferences with findings of fact by the trial court, counsel’s statement of case does not appear to contain any legal submissions on same. The following is what we managed to extract, from his statement of case, as the separate arguments of counsel for the 2nd defendant in respect of the grounds of appeal filed by the plaintiff. At page 10 titled ‘Analysis’, counsel first tackles ground (b) of the grounds of appeal and submits that while it would have been proper for the trial judge to go to the locus, to “satisfy itself of the real and physical situation on the ground” the failure to do so was cured by this court’s judgment in suit no J4/59/2013 , since the said judgment incorporated survey work ordered by the trial court in respect of the same land and that survey work had also formed the basis of the judgments in both the trial court and the court of appeal. Counsel further implies that the fact that the grantors of the 2nd defendant have litigated over the disputed land “throughout the centuries”(the list of cases are provided) and have alienated large portions of the land is indicative of their ownership and therefore satisfies the requirement that a claim of ownership by traditional history is to be measured against recent acts of ownership and possession. Indeed, counsel contends that the plaintiffs state in their indenture that one Kwame Amu was the owner of Ashalaja lands. This person is 2nd defendant’s grantor. Counsel calls on this court to apply the principle that once your opponent’s evidence corroborates yours the court is bound to accept your evidence unless there is clear reason not to. In other words, the plaintiffs indenture having stated that 2nd defendant’s grantor was the allodial title owner of the land in question, this court should accept that evidence. Counsel reproduces a portion of the court of appeal judgment to show it was well reasoned and that its conclusion that the disputed land formed part of Danchira lands was supported by the evidence on record shown by the pronouncements in judgments delivered as long ago as 1891 and as recent as a judgment of this court in suit numbered No. J4/59/2013. Finally counsel contends that the trial court’s application of the principle of res judicata in favour of the plaintiffs was without legal basis since the cases used as justification for applying the principle were set aside by the court of appeal and upon a retrial of the said case as ordered, judgment was rather given in favour of the 2nd defendant and his grantors. When all is said and done, the question to be answered in this appeal is whether the court of appeal’s evaluation of the evidence led at the trial was properly done and on the balance of probabilities was supportive of its conclusion that the land in dispute forms part of Danchira lands owned by the grantors of the 2nd defendant. To do this, we are required to analyse and evaluate all the evidence led during the trial in the exercise of our power and duty of rehearing this matter. See the case of Koglex Ltd (No 2) vs Field (No 2) [2000] SCGLR 175 @ 184 among a host of others. The court of appeal started its evaluation of the evidence led at the trial at page 263 of Volume 3 of the Record of Appeal (ROA). The court first discussed Exhibit E, upon which the trial judge relied greatly to make a finding that the disputed land (aka Afioaka land) formed part of Ashalaja lands belonging to the Akwanor family and not to the James Town stool as claimed by the 1st defendant who was not an appellant before that court and is also not an appellant before this court. The trial court had stated as follows at page 422 of the ROA “On the evidence therefore, I find that Bosuafise lands also known as Afoaka Land forms part of Ashalaja lands which are declared as belonging to the Akwanor family by exhibit E” The court of appeal reproduced portions of the said exhibit E which stated clearly that the suit was not fought by the parties therein in their representative capacities but sued in their personal capacities. The 2nd defendant’s grantors, the court of appeal said, not having been parties to that suit were not estopped from laying claim to the disputed land. The trial court had stated that exhibit E would operate as res judicata between 2nd and 3rd plaintiffs and 1st defendant since the latter was a privy of the James Town Manche. 1st Defendant was thus estopped from relitigating the same issue of the ownership of Asalaja lands. As rightly stated by the court of appeal this would not estop the 2nd defendant. After laying down what is required of a counterclaimant ie discharging the same burden of proof carried by a plaintiff, the trial court stated that exhibit 12, one of the cases relied upon by the 2nd defendant in support of their claim did not relate to the disputed land but rather related to a boundary dispute between 2nd defendant’s grantors and another family and did not bind the family of the present plaintiffs in this matter since they were not parties to that suit. He also said the said case was irrelevant to the present case. The court of appeal took a contrary position and held that exhibit 12, a judgment of the court of appeal determined that, the land in question belonged to the grantors of the 2nd defendant even if the plaintiffs did not partake in that trial. The contents of the said exhibit found at page 655 of Volume 2 of the ROA bears out the position taken by the court of appeal. Paragraphs 5, 6 and 7 of the plaintiffs statement of claim and paragraph 2 of the defendants statement of defence in that judgment reproduced at page 657 of the same volume threw up the question of ownership of certain portions of land claimed by the plaintiffs( 2nd defendant’s grantors). The said paragraphs are reproduced hereunder 5. Plaintiffs say that both Amanfro lands and Danchira lands as aforementioned have been registered with the Lands Commission without any objection in the nature of overlapping boundaries or otherwise 6. Plaintiffs further say that there has never been any boundary litigation between the two villages from the date their predecessors made their respective declarations. 7. Plaintiffs say that recently they granted some tracts of land within the boundaries of their family land to some individuals but when they conducted searches at the Lands Commission, the result indicated that portion of the land clearly falling within the boundaries of plaintiffs family land have been registered in the names of 3rd and 4th defendants claiming to have been granted the said portions of land by the then chief of Amanfro namely Nii Kwashie Gborlor III The defendants response to these paragraphs is that “2. In answer to paragraph 7 and 8 of the statement of claim the 1st to 4th defendants say that all the grants they have made fall within Ngleshie Amanfrom lands but if, which is denied, any of the said grants fall within Danchira, the same must have been done with the authority of the true heads of Danchira The court of appeal in that case stated at page 657 of the record as follows “A cursory reading of the pleadings of the plaintiff leaves one in no doubt that they are in court with the defendants because they are convinced the defendants have skipped the boundary between them and sold portions of their lands to the 3rd and 4th defendants.” At page 669, the court declared as follows in the last paragraph “From the foregoing we will uphold the appeal and set aside the judgment of the trial court and grant plaintiff’s their claim to title in the land area as found and determined by the court appointed surveyor which accords with the site plan in exhibit C. It is clear from the evidence that the lands granted to the plaintiff’s witness, Mr Asare and as testified by the surveyor are lands within the plaintiff's family. We so declare as our judgment……” Notwithstanding the fact that the main issue in the matter was a boundary dispute, to determine that issue the court had to make a finding on the ownership of the portion of land around that boundary. In doing so it made a pronouncement that the superimposition by a surveyor at the trial court in that case showed that land granted one F K Asare, the representative of the 2nd Defendant in the present case fell into the lands of his grantors who were the plaintiffs in the matter in exhibit 12. Surely such a judgment is relevant to this case in so far as it shows that a court, higher than the trial court in this case had once pronounced 2nd defendant’s grantors owners of land, a portion of which is the disputed land. The court of appeal in exhibit 12 had clearly stated, (and this was reproduced by the court of appeal whose decision is on appeal before this court) as follows at page 669 of volume 2 “From the foregoing, we uphold the appeal and set aside the judgment of the trial court and grant the Plaintiffs claim to title to the area found by the court appointed surveyor……It is clear from the evidence that lands granted the Plaintiffs witness, Mr Asare, and as testified by the Surveyor are lands within the Plaintiffs family” Granted that the present plaintiffs were not parties to that suit, the judgment is one of the pieces of evidence whose weight should have gone towards tilting the balance of probabilities in favour of the 2nd defendant. The court of appeal was right in using exhibit 12 which contained the above finding as one of the reasons for finding that the findings and conclusions by the trial court in this matter were not borne out by the evidence led at the trial. The said exhibit 12 was a relevant piece of evidence which supported the 2nd Defendant’s position that his grantors were the owners of the land and had litigated severally in proof of that ownership.. The trial court had taken the position that 1st Defendant’s exhibits 8 and 9, both high court judgments not having been set aside or reversed operate as estoppel per res judicata against the 2nd defendant and that they show that his grantors on the principle of nemo dat quod non habet had nothing to give to him. The court of appeal stated that 1st defendant’s Exhibit 8, which had 2nd defendant herein as a defendant therein and had decreed that the land in dispute belonged to the plaintiffs in that matter had been set aside on appeal and a retrial in that case ordered. That case, suit No BL/486/07 entitled Nii Lantei Lamptey v R. O. Lamptey & 2 Others had been relied upon as an authority by counsel for the 2nd defendant during the appeal at the court of appeal. The court of appeal made the point that although that case had been heard two years after the trial in this case, it had relied on 2nd defendant’s exhibits 9 and 10, (cases heard in 1890 and 1891 respectively and which had been available to the trial court in this case) which had made findings that Danchira lands were owned by the Nii Djanbi Amu family. The court of appeal rightly, in our opinion, (since they were based on evidence on record) endorsed these findings. The court of appeal noted that the recitals in the exhibit B, the indenture given to the 1st plaintiff by his grantors refer to the 2nd defendant’s exhibits 9 and 10! These judgments had been tendered in proof of 2nd defendant’s grantors ownership of Danchira lands. What were they doing in the recitals of a different family which claimed to own the same land on the basis of a different traditional history? These judgments were not mentioned in their pleadings or in their evidence. The only difference in is that the first names in exhibits 9 and 10 start with Q while those in exhibit B start with K. A close look at the statutory declaration of the 2nd and 3rd plaintiffs also shows a reference to these same judgments. This state of affairs led the court of appeal to ask certain questions at page 271 of volume 3 of the ROA which indicated its suspicion. The court of appeal stated as follows “It is also pertinent to point out that though the judgments referred to in the recitals in exhibit B bear the same dates as exhibits 9 and 10 tendered in evidence by the appellant, the spelling in the name of the Plaintiffs therein are different. What is even more intriguing is that, when exhibits 9 and 10 were being tendered, the Respondents never objected to them, and in their cross- examination, never challenged them as judgments obtained by the ancestor of the Nii Djanbi Amu family in respect of Danchira lands. All they could say was that they were not parties to those suits. Which suit were they then referring to in their recitals in exhibit B, as well as in their statutory declaration, exhibit D, as judgments in their family’s favour in respect of their land?” The suspicions rightly, raised by the above circumstances should have given the trial judge pause and should have reduced the weight of the evidence proffered in proof of the plaintiff’s claim of title to Danchira lands. We agree with the court of appeal that a proper look at the pleadings and exhibits tendered by the plaintiffs could only have led to the conclusion that on the balance of probabilities they had not proved their title to Danchira lands of which the disputed land formed a portion. We again agree with the court of appeal that, on the contrary, the evidence, particularly exhibits 9 and 10, judgments given as far back as 1890 and 1891 established the ownership of Danchira lands by 2nd defendant’s grantors, the Nii Djanbi Amu family. We are satisfied that the finding by the court of appeal that the judgment of the trial court was not borne out by the evidence is correct and called for that court’s intervention. The interference with the findings of fact by the trial court was justified and was covered by the circumstances in which an appellate court would embark on such interference. Such circumstances have been stated in a host of judgments delivered by this court including Agyenim-Boateng v Ofori [2010] SCGLR 861 where it was stated at page 868 as follows “The appellate court can only interfere with the findings of the trial court where the trial court; (a) has taken into account matters which were irrelevant in law; (b) has excluded matters which were critically necessary for consideration; (c) has come to conclusion which no court properly instructing itself would have reached and (d) the court’s findings were not proper inferences drawn from the facts……..the appellate court is also entitled to draw inferences from findings of fact by the trial court and to come to its own conclusions” For all the reasons stated above, all the grounds of appeal filed by the plaintiffs are hereby dismissed as being without merit. We wish to state clearly that from the evidence on record, the 2nd Defendant’s counterclaim was proved on the balance of probabilities as against the Plaintiffs claim even without a survey being commissioned by the trial court and the court of appeal was right in upholding their appeal and entering judgment for them on their counterclaim. This court however took the position that a survey exercise on the disputed land would further put to final rest the dispute relating to the 2nd defendant’s ownership of the lands they claim in their counterclaim, since it appears that despite the several judgments in favour of their grantors, they have faced continuing litigation on the matter. An order was thus made for a surveyor to do survey work with the documents of the parties. This was done in accordance with Survey instructions filed on 15th March 2022 and 20th April 2022 by the parties. The Survey instructions of the Plaintiffs were as follows “PURSUANT to the order of this Court dated the 23RD day of February,2022, Plaintiffs request the Regional Director of Survey, Accra to prepare a composite plan based on the following: a. Statutory declarations made in 1974 and 1976 b. Indenture made on the 26th March 1997 between Adams Addy and Adu Addy and Mr Freddy Yaw Agyakwah Somuah to: 1. Draw a composite plan identifying the lands of the respective parties 2. Locate the Plaintiff’s land in the composite plan 3. Locate the lands for the 2nd Defendant in the composite plan. The 2nd Defendant’s survey instructions were as follows “Pursuant to the orders of the Court made on the 23rd day of February 2022, the 2nd Defendant submits the following documents for superimposition as ordered: a. Statutory Declaration of John Ayiku Mensah made on the 2nd day of February 1976. b. Lease agreement between Nii Teiko Okai and F. K. A Limited made on the 5th of June 2001 and the attached site plan c. C. Lease Agreement between Nii Teiko Okai and F. F. A limited made on the 21st December 2007 and the attached site plan. d. Lease agreement between Nii Tackie Amoah VI and F. K. A Limited made on 20th of November 2012 and the attached site plan. These instructions were in the light of the below produced pleadings of the parties at the trial. The plaintiff’s claim was for a piece of land which he says he was granted by the 2nd and 3rd plaintiffs as joint heads of the Akwanor family of Ashalaja. He described the said land in his writ as “......parcel of land situate at Ashaaladza near Kasoa, Accra and bounded on the North by Lessor’s land measuring 450 feet more or less on the East by a Proposed Road measuring 880 feet more or less on the couth by Proposed Road measuring 450 feet more or less on the west by Proposed Road measuring 880 feet.” The first documentary evidence of the 2nd and 3rd Plaintiffs (1st Plaintiff’s grantors) ownership of the disputed land was stated in paragraph 3(c) of the amended statement of claim as follows “ Latter, in 1974 one of their predecessors called Kwali Addy registered a statutory Declaration over Akwanor Lands with No. 1017/1974 at the Lands Registry” The 2nd Defendant also stated in paragraphs 5 and 9 of their statement of defence and as follows 5. “ 2nd defendant will say in answer to paragraph 3© of statement of claim that John Ayiku Mensah, head of the Nii Djan-Bi Amu Family, in 1976 registered Danchira Lands by statutory declaration at the Land registry which land includes the land in dispute and that the said Danchira registration would not have been allowed by the lands registry if the Ashalaja land covered that part of the Danchira lands in dispute in this case” 9. “ 2nd Defendant will say in reply to paragraph 5 that its grantors gave 2nd defendant three separate documents to evidence the said transaction of its lands which are three separate parcels of land and is described in the schedules below” The said schedules are found after paragraph 1(d) of the counterclaim . The Plaintiffs also relied on a High court judgment in the case of Nii Kojo Appiah III & Ors vs Nii Akwanor( substituted by Adams Addy & Anor. The Surveyor testified on oath and tendered his report on 15th December 2022 and was cross examined by counsel for the plaintiff and the 2nd defendant personally. The Surveyor testified that the plan which was eventually provided by the plaintiffs for the survey work was not the original one attached to their statutory declaration of 1974 but one dated 17th June 2021 which they said was the same as the original attached to the 1974 declaration. The witness further testified that the three parcels of land claimed by the 2nd defendant all fall within the land covered by the 1976 statutory declaration of his grantors and also fall within the overlap with the land claimed by the 1st plaintiff’s grantors ie the 2nd and 3rd plaintiffs. The witness further testified that the particular area of dispute between the 1st Plaintiff, as shown by his site plan did not connect in any way with the three parcels of land being counterclaimed for by the 2nd defendant. Counsel for the 2nd Defendant further filed supplementary submissions dated 5th January 2023 on the work done by the surveyor pursuant to leave granted both counsel by this court to do so if they wished. The most crucial finding from the survey report as it relates to 1st plaintiff and the 2nd defendant are as follows. 1. The land as shown physically by the 1st plaintiff’s representative and edged red is at a completely different place from the land as shown by his site plan edged cyan 2. The land edged cyan does NOT fall into any of the portions of land being counterclaimed for by the 2nd defendant, per his site plans which are edged, magenta, black, and brown. The relevant conclusion as between the 1st plaintiff and the 2nd defendant is that their lands, as per their site plans are separate and distinct from each other. The discrepancy between 1st plaintiff’s site plan and the land as was shown on the ground by his representative is one of the factors which remove from his case and further tilt the balance of probabilities in favour of the 2nd defendant. That would have ended this matter but for the fact that the bigger issue of the title the grantors of 1st plaintiff and 2nd defendant was raised by issues (a) and (b) set down at the Application for directions stage. These issues stated as follows “Whether or not plaintiffs validly acquired the land in dispute.” “Whether or not Defendant validly acquired the land in dispute.” The trial court had found that it was the 2nd and 3rd plaintiffs, grantors of the 1st plaintiff who owned the land. The court of appeal found otherwise and we have earlier in this judgment found that the position of the court of appeal is what is supported by the evidence led for reasons earlier given in this judgment. There is no need to repeat same. In conclusion the present appeal fails in its entirety, all the grounds of appeal having been dismissed earlier as being without merit. A. LOVELACE-JOHNSON (MS.) (JUSTICE OF THE SUPREME COURT) G. PWAMANG (JUSTICE OF THE SUPREME COURT) M. OWUSU (MS.) (JUSTICE OF THE SUPREME COURT) PROF. H. J. A. N. MENSA-BONSU (MRS.) (JUSTICE OF THE SUPREME COURT) E. YONNY KULENDI (JUSTICE OF THE SUPREME COURT) COUNSEL SELORM V. K. AGBLEY ESQ. FOR THE 2ND DEFENDANT/APPELLANT/ RESPONDENT. NASHIRU YUSSIF ESQ. FOR THE PLAINTIFFS/RESPONDENTS/APPELLANTS. 18