IN THE SUPERIOR COURT OF JUDICATURE

THE SUPREME COURT

ACCRA A.D. 2005

CORAM: ATUGUBA, J.S.C. (PRESIDING)

DR. TWUM, J.S.C.
DR. DATE-BAH, J.S.C.
LARTEY, J.S.C.
ANINAKWA, J.S.C.

CIVIL APPEAL
NO. J4/10/2004

16TH MARCH, 2005

BETWEEN:

EBUSUAPANYIN YAA KWESI ….. PLAINTIFF/APPELLANT

AND

ARHIN DAVIS & ANOR. ….. DEFENDANTS/RESPONDENTS

EBUSUAPANYIN KWAMENA BEDU ….. CO-DEFENDANT/APPELLANT

JUDGMENT

LARTEY, J.S.C.: By his writ of summons the plaintiff appellant (hereinafter referred

to as the Plaintiff) sued the first and second defendants/respondents (hereinafter also

simply referred to as the defendants) claiming:

“(a) Declaration of title to a large part and parcel of land situate at Anagye and
bounded by the lands of Ebiradze family of Fijae, Nsona family of Anagye
then Noweh’s Ebiradze family of Anagye.

(b) An order quashing and (sic) purported Lease that had been made to lease
part of the land without the consent and concurrence of the Plaintiff’s
family.

(c ) Damages for trespass

(d) An order of perpetual injunction restraining the defendants, their agents,

servants etc. from having any dealing with the land”.
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The plaintiff who described himself as the head of Basia Aya’s Ebiradze Family

of Anagye pleaded that his family had for a long time been recognized as owners of a

large piece and parcel of land situate at Anagye which shares boundary with the lands of

Ebiradge family of Fijai, Nsona family of Anagye and Nowah’s Ebiradge family of

Anagye, and as owners in possession various persons have been granted farming rights

over parts of the land. It was when the plaintiff’s family turned the site into a layout for

residential purposes that the first defendant resisted the action and made a grant of a

portion to the second defendant. The plaintiff further averred that his family lodged a

complaint with Ahantahen at Busua who went into the matter by way of an arbitration

after which the first defendant was found liable.

In his amended statement of defence the defendant’s admitted that the plaintiff

lodged a complaint with Ahantahen at Busua but denied that there was any proper

arbitration because the proceedings were not an arbitration and cannot ground an

estoppel. On the contrary the purpose of the complaint was to attempt an amicable

settlement of the differences between the parties. The defendants averred that the

ownership of the land had been determined in a judgment delivered on 10 December,

1912 by His Worship H.C.W. Grimshaw. In that case the plaintiff’s ancestor called

Araba Aryeh testified and confirmed the sale of the land by auction. That being the case

the plaintiff is estopped from laying claim to the disputed land. The defendants again

relied on another case in which one L.T.F. Sagoe successfully sued one Ngya Assafuah a

predecessor of the plaintiff in the District Court, Sekondi in 1970. The defendants further

averred that the first defendant’s father also exercised rights of ownership over the land,

and after his death the land devolved on the first defendant who had been making grants
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to several persons including the second defendant. It was part of the case for the

defendants that the first defendant started farming on the land in 1964 and that he made

farms in which he grew coconuts, oil palm, citrus, mango and pear.

The co-defendant, variously also described as third defendant, on 8 th October,

1993 filed a motion for joinder as co-plaintiff in this suit. That was almost sixteen

months from the date of issuance of the writ of summons. The plaintiff on 11 th October,

1993 promptly filed his affidavit in which he indicated his intention to oppose the co-

defendant’s application for joinder. Taking a cue from the prospect of facing opposition

by the plaintiff, the co-defendant, on 10 th November, 1993, filed a similar application for

joinder, this time as third defendant in this action. I concede that the grant or otherwise

of an application of this nature was entirely at the discretion of the trial High Court judge,

whose reason in granting the application was “in order that justice be done to all parties”.

Speaking for myself I would have thought that refusing the application would have been

a better option, especially coming at a time when the plaintiff had already closed his case.

And as can be gleaned from the affidavit in support of the application, the main issue

raised therein was the ownership of the whole Ntankoful land, including the land in

dispute. In my view that issue was between the co-defendant and the plaintiff which

conveniently could be left for its resolution between the two. I am of the opinion that the

application for joinder was a recipe for confusion as can be demonstrated by the co-

defendant’s grounds of appeal to the Court of Appeal and subsequently to this court.

Be that as it may, the co-defendant filed his statement of defence in which he

denied that the plaintiff is the head of family of Basia Aya’s Ebiradge family; that there is

no family known as Basia Aya’s Ebiradge family; since Basia Aya was the great grand
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mother of the co-defendant she belonged to theAbrashiem Ebiradze family; that the land

described in the plaintiff’s statement of claim belongs to Abrashiem Ebiradge family; that

whatever act that was done on the land in dispute was done surreptitiously without the

consent and knowledge of the co-defendant; that apart from the cases cited by the

defendants, others like L.T.C. Davies vrs. Noweh exist which operate as estoppel against

the defendants. Upon the foregoing, the co-defendant joined issues with the other parties

on their pleadings.

The learned High Court judge O. K. Sampson held at the end of the trial as

follows:-

“The plaintiff herein failed to discharge the onus of proof incumbent upon him to
establish his title to the land in dispute. Plaintiff’s action fails and it is therefore
dismissed accordingly”.

And in the final paragraph of what he claimed to be the reasons for the judgment,

the learned judge said:

“And by way of an issue arising out of the pleadings, the plaintiff is estopped per
ram (sic) judicatam as well as the 3 rd defendant from claiming ownership to the
land in dispute; hence the dismissal of the plaintiff’s action herein”.

The plaintiff and the co-defendant appealed from that judgment to the Court of

Appeal. The judgment of the Court of Appeal was delivered on 28 November, 2002. In

the opinion of the Court of Appeal the learned trial judge was right in the conclusion of

law and fact that he made, and therefore there was no merit whatsoever in the grounds of

appeal filed by both the plaintiff and the co-defendant. It had no difficulty in dismissing

the appeals.

Dissatisfied with the decision of the Court of Appeal both have appealed to this

court on a number of grounds. But before dealing with the specific grounds raised in this
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appeal it may be useful to comment briefly on the reliefs claimed and the effect they may

have in evaluating the evidence produced by the parties in this suit. In the case of NKYI

XI v. KUMAH [1959] G.L.R. 281, C.A. their Lordships (coram: Korsah, C.J., Van Lare

J.A. and Ollennu J.A.) guided by the principle stated by the Judicial Committee of the

Privy Council in the judgment delivered in KPONUGLO & ORS. V. KODDADJA 2

W.A.C.A. 24) observed at page 284 thereof as follows:-

“Where in an action for trespass a defendant, as in this case, pleads ownership of

the land (i.e. that he has a better right to possession of the land than the plaintiff
has) the plaintiff’s title is put in issue; and the plaintiff cannot succeed unless he
proves a right to possession which is superior to that of the defendant.
Consequently, in an action for trespass, if it is proved that the plaintiff has no title
at all to the land, and that the defendant’s entry is upon permission of the true
owner, the plaintiff’s claim must fail.

Again where in addition to a claim for damages for trespass the plaintiff
claims an injunction, title is automatically put in issue, because that claim
postulates that the plaintiff is either the owner of the land in dispute, or had (prior
to the trespass complained of) exclusive possession of it”.

Thus what the foregoing proposition seeks to convey is that since the plaintiff in

this appeal sued for not only a declaration of title but also damages for trespass and an

order for perpetual injunction, he assumed that onerous burden of proof by the

preponderance of the probabilities as required under sections 11 and 12 of the Evidence

Decree, 1975 (N.R.C.D. 323), or else risk the prospect of losing his case. See also

ADWUBENG v. DOMFEH [1996-97] S.C.G.L.R. 660 on the burden of proof in all civil

causes including title to land.

Now the plaintiff in his introductory remarks as per his statement of case in this

appeal indicated that the issues in this appeal are the same as those raised at the Court of

Appeal for which written submission were filed. Counsel for the plaintiff offered to

argue his original ground ‘C” and the additional ground ‘F’ together. However, whilst
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his original ground ‘C’ conforms exactly with what was quoted in the statement of case,

the additional ground ‘F’ as appears in the statement of case is quite different from what

appears at page 217A of the record of appeal. The statement of case quotes ground ‘C’ as

follows:-

“The Court of Appeal erred in relying on estoppel when the defendant respondent
who traced his writ of tittle (sic) from Basia Aya has not shown the identify of the
land in the suit, and in this suit, when the appellant had led evidence that the land
being claimed had always been under their control and management”.

The two versions of the additional ground ‘F’ also state as follows:-

“The Court of Appeal erred in relying on a judgment between L.T.C. Davies vrs.
Norweh, when the plaintiff is not related to the said Norweh”

“The learned trial judge erred in accepting the case of the 1 st defendant when the
alleged certificate of purchase was not tendered and the extent of the land and the
position of the land were not shown”.

Inspite of the apparent confusion surrounding the plaintiff’s grounds of appeal I

will endeavour to examine them against the background of exhibits 1 and 2 which

constitute the main target for the onslaught by the appellants. Admittedly the Court of

Appeal relied on exhibits 1 and 2 not so much as creating an estoppel against the plaintiff

but because Araba Aryeh’s evidence in the proceedings before H.C.W. Grimshaw

culminating in the judgment of 10 December, 1912, constituted on admission against her

own interest and those who became her successors in title, including the plaintiff herein.

That point is quite significant in exhibit 1, and no attempt should be made to gloss over it

or whittle down its effect. Indeed the Court of Appeal never held that the plaintiff was

related to Norweh in the said exhibit. On the issue of estoppel all that the Court of

Appeal said about it is captured in the following extract of its judgment:

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“In particular the most important case put up by the 1 st defendant was that in that
lawsuit the said Baya Ayah, the ancestress of the plaintiff, gave evidence to the
effect that she had sold the land in dispute to a predecessor of the 1st defendant.

The judgment pleaded by the 1st defendant did not therefore purport to
establish only a cause of action estoppel, but also an issue estoppel because the
statement attributed to Baya Ayah, if proved, constituted admissible hearsay, a
statement made against proprietary interest recognized as an exception to the
hearsay rule under section 117-118 of the Evidence Decree 1975 (NRCD 323).
Such admissions made by predecessors bind their descendants or those who claim
through them”.
It was also part of the contention of the plaintiff that the first defendant,

while tracing his root of title from Basia Aya, failed to show the identity, the

extent and position of the land. It is difficult to comprehend the force of this

argument coming as it were from the plaintiff because when the motion for

appointment of a surveyor was filed by counsel for the defendants, it was the

same plaintiff who by his affidavit of 4 March, 1994 opposed same on the ground

that the issue in controversy did not call for the making of a plan. If the making

of a plan was not necessary in the trial, why should he turn round to accuse his

opponents of failure to identify the land in dispute or show the extent and position

of it? By unwittingly resisting the said application the plaintiff failed to

acknowledge its effect to his own detriment. He failed to realize that as the

plaintiff claiming in a land litigation it was he who bore the primary responsibility

or the burden of producing evidence on the issue of a surveyor’s plan to

strengthen his case. If this had been done the entire land he claims to own to the

exclusion of the defendants would have been clear on the evidence. I do not

appreciate the legal or moral basis for the plaintiff’s attack against the defendants

on the issue of the extent of the disputed land.

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The next ground of appeal states that the Court of Appeal erred in holding

that a surveyor gave evidence when no surveyor was called. I do not think the

‘surveyor’ under this ground is referable to the trial of this action at the High

Court. On the contrary it referred to the one mentioned in exhibits 1 and 2.

Indeed in its judgment the court made reference to page 223 of the record of

appeal where Andrew Essien the surveyor testified before H.C./W. Grimshaw, the

Provincial Commissioner. It would appear that this Andrew Essien was the same

surveyor who surveyed the land in dispute between the first defendant’s grand

father L.T.C Davies and Norweh in the 1912 litigation. Now a close look at

exhibit 1 will show at page 228 of the record that the Commissioner described the

land sold under the order of the court as “edged with pink in the plan” and that

was what Aryeh sold to Essaw. The judge (Commissioner) was careful enough to

warn that the land “hatched with red on the plan” was not affected by his

judgment. The inference was that there was a plan before the Commissioner

which clearly identified the land sold by the order of the court or the land sold by

Aryeh.

It seems to me that the controversy raised by this ground of appeal seems

to center around the linkage between the 1912 or 1913 judgment and the plan

appearing in exhibit 2, which plan was certified or signed by the said Andrew

Essien in 1927. There is evidence by the first defendant that these two documents

were retrieved from his father’s box. If that is true then they must be deemed to

have come from proper custody and free from suspicion within the context and

meaning of section 146 of the Evidence Decree, 1975 (NRCD 323) and the
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commentary thereon. I will therefore endorse the view expressed by the Court of

Appeal that the documents marked exhibits 1 and 2 pass the authenticity test and

were properly admitted in evidence and relied upon by the trial court.

Another ground of appeal by the plaintiff is that the Court of Appeal erred

when it said that the plaintiff’s ancestors gave evidence to the effect that she sold

the land in dispute to a predecessor of the first defendant. In support of that

contention counsel referred to a sentence which appears at page 338 of the record.

It reads: “That the disputed land was sold to his grandfather L.T.C. Davies by

Araba Aryah has been the clarion claim of the 1 st defendant right from the

inception of the litigation”. Although the sentence is contained in the judgment of

the Court of Appeal, I do not consider it as causing any substantial miscarriage of

justice. And relying on both exhibits 1 and 2 as forming the basis of his case in

this litigation the stance taken by the first defendant is that the land sold by public

auction and bought by J. A. Williams which J.A. Williams in turn sold to L.T.C.

Davies legitimately belongs to the children of L.T.C. Davies, and as a paternal

grandchild he (the first defendant) is entitled to the enjoyment of the land.

The next ground of appeal is the one which states that “the Court of

Appeal did not appreciate the arguments on Additional Grounds E and therefore

relied on the case of Davies vrs. Randall, which does not cover the 1st defendant

whose father was from Cape Coast”. The case of Davies v. Randall & Anor. is

reported in [1963] 1 G.L.R. 382. That was the case in which, after the death of

the first defendant’s grandfather L.T.C. Davies, his land with buildings thereon

was sold to a third party. The main issue in that case was whether the children of
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L.T.C. Davies, a Sierra Leonean, constituted his family after his death for

purposes of succession to his immovable property. It was held that as legitimate

children of the deceased, they clearly had an interest in the property.

Now the argument goes beyond the mere reference to the Randall case. If

I understand him correctly, the plaintiff is saying that since the first defendant’s

father came from Cape Coast and his mother is from Akim Akuapem – both

families being matrilineal – he cannot succeed to the land. This is an ingenious

argument, especially when one considers that the first defendant is a grandchild

and not a direct child of L.T.C. Davies (deceased). But unless the plaintiff can

successfully prove to be a member of the deceased’s family, I cannot imagine

how any court can decree title in his favour in respect of the land in dispute. The

other alternative depends on the ability of the plaintiff to prove his case by the

preponderance of the probabilities in this litigation. As I see it, the line of

argument canvassed in support of this ground is of no avail to the plaintiff.

It was also argued on behalf of the plaintiff that at the time the plaintiff

was testifying he did not have the third defendant (co-defendant) in view and

therefore did not adduce any evidence against him. However, since during cross-

examination the third defendant denied certain facts relating to the identity of the

two families, the trial court was duty bound to allow the plaintiff to call evidence

to rebut the third defendant’s testimony. Now the third defendant’s application

for an adjournment was refused by the trial court on 3 rd November, 1999, and was

deemed to have closed his case. On that date although counsel for all three parties

were in court there is no indication of the reaction of the plaintiff or his counsel. It
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is now being argued that the trial court was duty bound to have allowed the

plaintiff to lead evidence of rebuttal.

Now I turn briefly to the evaluation of the evidence as between the

plaintiff and the defendants. It is trite law that this suit being essentially for a

declaration of title the plaintiff was bound to establish his root of title. In the

present case this was not satisfactorily established. As noted elsewhere in this

judgment, the plaintiff himself did not testify at the trial, and of the witnesses who

gave evidence on his behalf only P.W.1 described the boundaries as per the

statement of claim. To succeed in an action for a declaration of title a plaintiff is

required to show his boundaries clearly. I have already commented on the

plaintiff’s opposition to the land being demarcated by a competent surveyor. And

apart from the plaintiff’s resistance to a plan being made, no boundary owners

were called to testified to the ownership of the disputed land. In my judgment this

is fatal to the plaintiff’s claim, for as it was held in AKOTO II V. KAVEGE

[1984 – 86] 2 GLR 365 failure to prove even only one side of boundaries can be

fatal, notwithstanding whether or not the defendant counterclaimed.

On the other hand, the defendants were able to trace their root of title from

exhibit 1 which has been adequately examined in these proceedings. They relied

on exhibit 2 to show that the identity of the land was the Kotokobon land part of

which was bought by Williams at a public auction and which in turn was

eventually sold to L.T.C. Davies. The plan in exhibit 2 has generated a lot of

controversy, particularly because it was signed by Essien in 1927, the same

surveyor mentioned in the 1912 judgment. In DEVIES V. RANDALL & ANOR.

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[1964] GLR 671 it is clear that L.T.C. Davies died on 21 December, 1919, and

therefore he could not have had anything to do with a document prepared in 1927.

However, it is not unreasonable for any of his children or widow to approach

Essien for the purpose of tracing the judgment plan from the surveyor’s own

copy. The comparison of the judgment in exhibit 1 and the plan appearing on the

face of exhibit 2 is exactly what the Court of Appeal did and concluded that the

documents were both genuine. I have nothing more to doubt about the conclusion

arrived at by the Court of Appeal.

Quite apart from exhibits 1 and 2 the record is replete with overt acts of

ownership demonstrated by the children of L.T.C. Davies. Exhibit 4 is the lease

executed between Samuel Livingstone Silas Davies (father of the first defendant)

as lessor and John Donkor as lessee, which lease was for a term of ninety-nine

years commencing from June, 1972. Similarly, exhibits 5 and 6 are leases made

in favour of John Kwesi Quainyin and George Henry Monney respectively for the

use of portions of the land. In my view the Court of Appeal and the trial court

rightly dismissed the plaintiff’s claim as unsatisfactory.

I now turn to the third defendant’s (Co-defendant’s) grounds of appeal, the

first of which is that the Court of Appeal erred in affirming the judgment of the

High Court; and that being the case the trial was a nullity because the judge failed

to grant him any opportunity to cross-examine the plaintiff and his witnesses. The

substance of this ground is the same as the third of his additional ground of

appeal. I have earlier on observed in this judgment that the plaintiff did not testify
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in this case, and therefore the question of not being given an opportunity for

cross-examination did not arise.

As for the witnesses for the plaintiff, it is worthy to note that the third

defendant’s motion for joinder in the action was granted on 30 November, 1993.

On 3 November, 1999 he was compelled to close his case. The question which

arises is this: for a period of about six years what was the third defendant waiting

for, if he was so desirous of applying to recall the witnesses he had in mind?

Surely such a conduct is inconsistent with any perception of diligence. I consider

this ground completely unmeritorious.

Grounds (d) and (e) may conveniently be considered together. The first

seeks to attack the judgment of the Court of Appeal for failing to ascertain the

connection between the land described in exhibits 1 and 2 and the disputed land.

The second questions the genuiness of the two documents. I earlier on in this

judgment considered both exhibits 1 and 2 and the comparison made by the Court

of Appeal in arriving at its conclusion that the documents were authentic and

genuine. It is pointless to be repetitive on this point. In any case, it is interesting

to note that it was the third defendant who tendered exhibit 3D1 at the trial. That

exhibit is the Supreme Court decision which dismissed Norweh’s appeal against

the judgment of Grimshaw as per exhibit 1. If the third defendant considers

exhibit 3D1 to be a genuine document what forms the basis of his doubt in respect

to exhibit 1?
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Upon considering the cases for both the plaintiff and the third defendant I

have no hesitation in coming to the conclusion that the appeals have no merit and

consequently they ought to be dismissed.

F. M. LARTEY
JUSTICE OF THE SUPREME COURT

W.A. ATUGUBA
JUSTICE OF THE SUPREME COURT

DR. S. TWUM
JUSTICE OF THE SUPREME COURT

DR. S. K. DATE-BAH
JUSTICE OF THE SUPREME COURT

R. T. ANINAKWA
JUSTICE OF THE SUPREME COURT

COUNSEL:

Mr. S. H. Ocran for Appellant.

Mr. I. G. Carson for Respondent.

gso*