Addo Vrs Baiden (CA. 74/2004.) [2004] GHACA 19 (04 June 2004);

Flynote: 

IN THE SUPERIOR COURT OF JUDICATURE

IN THE COURT OF APPEAL SITTING AT

ACCRA ON THE 4TH DAY OF JUNE,2004 BEFORE

ARYEETEY, JA [PRESIDING], AMONOO-MONNEY

AND ANIM, JJA

 

 

CA. 74/2004.

 

 SAMMY ADDO                   …          PLAINTIFF/RESPONDENT

         VRS.

     BAIDEN                            …           DEFENDANT/APPELLANT

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                                       J  U  D  G  M  E  N  T

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AMONOO-MONNEY, JA:-  The Plaintiff/Respondent instituted an action against the appellant (as defendant) at the High Court in Accra by a writ filed on 29th March, 1994 indorsed for the following 3 reliefs –

“(1)   Declaration of title to a piece of land at Awoshie bounded on the North

          by a proposed road on the South by a proposed road on the East by the

          property of the defendant on the left partly by the property of Mami Nkran

  1. Perpetual Injunction.

(3)    Damages for trespass and slander.”

        In the accompanying Statement of Claim the respondent averred that

“(1)  The plaintiff is the owner of a tract of land measuring about 4 plots

         through which the electricity lines run situate at Awoshie with

          boundaries as described in the writ.

  1. “The Plaintiff says that he acquired the land from the Chief of Gbawe with consent of the elders partly in 1990 and in 1993.”
  1. In his Statement of Defence and Counterclaim which was filed on

12th March, 1999, the appellant also averred that

“4.  Defendant says in answer to paragraph 7 of the Statement of Claim

 that the Defendant acquired a piece or parcel of land in or around 1990

which shared a common boundary with his (plaintiff’s) land.

“6.  Defendant will say that plaintiff has never been in possession of

the land in dispute and has recently started provocative acts on Defendant’s

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  land” and the appellant counterclaimed for “(a)  Declaration of title to all    that piece or parcel of land described in the schedule below.  

  1. Damages for trespass” and the schedule indicated “ALL THAT PIECE OR

PARCEL OF LAND situate lying and being at Kokroko (Odorkor North-

West) Accra bounded on the North-East by Lessor’s property measuring on that side 205 feet more or less on the East by property of Sammy Addo measuring on that side 55 feet more or less on the South-West by a proposed road measuring on that side 155 feet more or less and on the West by Lessor’s

    property measuring on that side 200 feet more or less and containing an         

             approximate area of 0.45 acre.”

  1. The appellant rather, as defendant, took out a Summons for Directions on 27th June 2000 and set down as issues for the trial –

“(a)   whether or not plaintiff or defendant is entitled to a declaration of title to

          the land in dispute.

  1. whether or not plaintiff or defendant is entitled to a declaration that

trespass has been committed on the land.

  1. Whether or not plaintiff or defendant is entitled to an order of perpetual

injunction restraining the other from dealing with the land in dispute.

  1. That a surveyor be appointed to draw up a composite plan.
  2.  Any other issues arising out of the pleadings.”

        These issues were endorsed by the trial High Court on 12th July, 2000 but on 26th October 2000 the solicitor for the respondent filed a Reply and Defence To The Counter-

claim which states in paragraph 7 that “The Plaintiff in reference to paragraph 4 of the Statement of Defence says that he purchased the first portion of his land in 1990 and registered the same at the Lands Commission as No. AR/801/90 which  did not share boundary with the defendant and that the 2nd portion which shares boundary with the defendant was purchased in 1993 and registered as No. AR/AS/860/94 (emphasis mine).

The Solicitor for the respondent also filed on the same day, i.e. 26th  October, 2000, additional issues, namely:

      “1.  Whether or not the high tension pylons were erected on the land subsequent

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              to the acquisition by the plaintiff.

  1. Whether or not the Defendant is estopped by conduct and acquiescence from raising the counterclaim and
  2. Whether or not the conduct of the Defendant amounts to fraud or collusion

between himself and the vendor (who are members of the same family);” but

these issues do not seem to have been accorded any material relevance at the trial.

  1. The respondent called one witness at the trial and also gave evidence on his

own behalf.  The appellant also gave evidence in support of his case but did not call any witness.  The trial High Court on 18th October,2001 dismissed the appellant’s counterclaim and gave judgment for the respondent in respect of the “declaration of title as sought on his writ of summons “as well as “perpetual injunction against the defendant restraining the defendant from ever having anything  to do with the land in dispute herein declared in favour of the plaintiff.”  It is against this judgment that the appellant has appealed to this Court on the grounds that –

“(a)   The judgment is against the weight of evidence.

  1. The decision declaring the plaintiff owner of property is in conflict

with documentary evidence.

  1. The Court erred in refusing to order super imposition of plaintiff’s

and defendant’s documents and they visited the locus but failed to have the evidence at locus on record.”

  1. In his judgment the learned trial judge said.  “From this evidence of the parties it

appears to me there is no dispute that the defendant shares boundary on the West

of plaintiff’s land.  It is also not in dispute that electric lines (pillions (sic)) pass through plaintiff’s land.  What is further not in dispute is that the dispute got to the common vendor of the parties.  Whilst the plaintiff and his witness mention

that the dispute was resolved in his favour the defendant disputes this.  I will however prefer the evidence of the plaintiff that the dispute was resolved in

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favour of the plaintiff and the defendant was made to pay a fine.  In effect the         vendors recognised plaintiff’s claim to the land in dispute.”    Now, what was the nature of the evidence that was led by the respondent, as    Plaintiff, and his witness on this so-called land in dispute?  Respondent’s   witness, Alhaji Amarkwei Laryea, said in his evidence-in-chief  - “I know there is a dispute between plaintiff and defendant and we all went to the land owners.  We went before Adam Kwartei Quartey and his elders.  The parties were present. We were on the matter for a day.  Plaintiff was asked to go for his land and defendant was asked to provide drinks as a fine.”  The respondent, for his part, testified that –  “The dispute between me and defendant surfaced on two occasions.  We met at the land owners house. First at the instance of the defendant.  I was asked to go for my land and I was fined ¢1,000. The second instance the meeting was Mr. G. Laryea lawyer from Gbawe.  We    went unto the land with a surveyor.  In the result we were asked to go for the land.  The caretaker gave an undertaking that he had not given any land to the defendant.  I wish to tender it………………” (Tendered and marked Exhibit “L”)

     Exhibit “L” is in these terms –

                      “IN THE HIGH COURT, ACCRA

                                                                                        SUIT NO. L. 168/94

    IN THE MATTER OF SAMMY ADDO VRS. BAYDEN alias JOCKER     We, Adam Kwartei Quartey chief of Gbawe and Nii Mohamed M. Laryea elder of the Gbawe Stool do hereby confirm that we have alienated the land in dispute to the plaintiff herein and that the defendant herein has no authority or has not been authorised by us to sell or in any way alienate the land on dispute to himself or anybody.

DATED THIS 15TH DAY OF JUNE, 1994.

                                                                          (Sgd.)  NII M.M. LARYEA

 

THE REGISTRAR,

HIGH COURT,

ACCRA.

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              AND TO THE ABOVE-NAMED DEFENDANT.”

  1. As has already been indicated above the respondent in paragraph 1 of his

Statement of Claim (then as Plaintiff) averred that “The plaintiff is the owner

            of a tract of land measuring about 4 plots through which the electricity lines

            run situate at Awoshie with boundaries as described in the writ,” and these

            boundaries are “bounded on the North by a proposed road on the South by a

            proposed road on the East by the property of the defendant on the left partly

            by the property of Mami Nkran.”  When he gave evidence however, the

            respondent described the same tract of land as bounded “on the North side

            by road, the South by road, on the West is the defendant on the East is

            Theresa Nkra.” (emphasis supplied).  It is very likely Mami Nkran is the

 same as Theresa Nkra. The land which the respondent bought in 1993 is the one which relates to Exhibit B and is also the land which from the evidence abuts on the land belonging to the appellant.  Exhibit “B” refers in a schedule to 2 parcels

            of land marked A and B which are respectively described as “bounded on

the North by the property of the Lessee’s land and measuring 30 feet more or less on the North-East by Electricity Corporation lines measuring 40 feet more or less on the West by the property of the old lady popularly called Maami Nkran on the South by the proposed road” and then B“bounded on the south by the proposed road and measuring 55  feet more or less on West by a fallow of Baiden measuring 55 feet more or less on the North-West by the Electricity lines measuring more or less 75 feet.”

7. There is no doubt that the plots of land of the parties in this case are contiguous and though the respondent denied at the Court below that the dispute was a boundary dispute, the question may be asked “how can there be trespass in the case of two adjoining land owners when there is no,as it were,“border crossing?”  Was their common boundary clearly and properly determined by the trial High Court? What was its length and    what was its situation or location?  Were the mutual

allegations of acts of trespass made by the respondent and appellant merely bare

 

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allegations or there was supporting or corroborative evidence such as could be seen from  a visit to the land?  What was the exact land in dispute?  Was it properly and clearly identified by the trial Court? What are its dimensions and

             boundaries?

  1. At the end of the hearing of oral evidence in the case the trial Court on

20th November 2000 stated –

“By Court -  Case adjourned to the 23rd November, 2000 for locus and plaintiff on a day to be connected unless the recovery necessary to convene because of

the locus.”  Whatever this really means Counsel for the appellant in his Statement of Case on behalf of the appellant states that –

       “Also my Lords there is no doubt that the parties visited the locus as per

recordings on page 129 line 23 of the record but strangely despite the fact that

recordings were made at the locus with both parties present together with their

Counsels and the trial judge together with his clerks there is no record of the

visit and this was never mentioned in the judgment.”  I am of the opinion that

the trial Court properly decided to visit the locus in quo, but what came out of

that visit?  There is no record of what happened at the locus in the appeal record and more particularly in the judgment.  Did an appropriate representative of the common vendor or grantor  of the parties accompany the Court to the locus?  The Practice Note given by the court of Appeal in the case of  GLBLEVI FAMILY V. AMANIE [1961] GLR 1 about inspection of locus directs that “The Court should be accompanied by the parties and any relevant witnesses to the

inspection. The parties or the witnesses there point out such places and things

which are material to the case etc.  If certain other persons, who may assist the

Court in arriving at a decision in the matter are found on the land but who have not given evidence in Court, are heard, those other persons should be asked to appear before the Court when it re-assembles.

         Then when the Court re-assembles all the persons who were used at the view must be put into the witness box, and on oath state what part they took in the recent visit to the locus and what each did.

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      “The parties, that is the plaintiff and the defendant are to be given an opportunity of cross-examining those witnesses who after the inspection are

 called by the Court itself and at that stage must be deemed to be witnesses called at the instance of the court.” This Practice Direction is not limited to the erstwhile Local Courts only.  It is applicable even in the High Court; see the

Supreme Court case of BARKO VRS. MUSTAPHA [1964] GLR 78 at page      84.

  1. The trial Court completely failed to observe the procedure as regards visit by

the Court to the locus in quo.  It is not clear how oral evidence, if any, arising

from the visit the court made to the locus or impressions or observations or any measurements, if any, made at the site upon the inspection could have affected

the decision that was given in this case.  For this reason and the other comments    made above I set aside the judgment given by the trial court in favour of the

respondent and also set aside the award of general damages in favour of the respondent as well as the order made as to costs. I also set aside the judgment given in respect of the counterclaim and remit the case to the High Court for a re-trial by a different judge. 

To the extent indicated, the appeal succeeds.  There will be no order as to costs. 

       

      

                                                                                    [J.C. AMONOO-MONNEY]

                                                                                       JUSTICE OF APPEAL 

 

 

 

ARYEETEY, JA       I agree.                                        [B.T. ARYEETEY]

                                                                                  JUSTICE OF APPEAL

 

 

ANIM, JA       I also agree.                                                 [S.Y. ANIM]

                                                                                 JUSTICE OF APPEAL

 

 

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COUNSEL:-    NATHANIEL MYERS FOR APPELLANT.

                          C.K. MINTAH FOR ERIC NARH FOR RESPONDENT.

 

 

 

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