THEODORE ADJEI OSAE (DR.) & ORS vs. NUMO NORTEY ADJEIFIO & ORS [2008]DLSC2472

Date	2008-05-07
Suit No.	CIVIL APPEAL NO. J4/22/2007
Citation No.	[2008]DLSC2472

MISS AKUFFO J.S.C. (PRESIDING)

BROBBEY J.S.C.

ANSAH J.S.C.

ANINAKWAH J.S.C.

ASIAMAH J.S.C.

E. A. ACKAM FOR THE APPELLANTS.

OSAFO BUABENG FOR THE 1ST RESPONDENT.

JOSEPH K. MENSAH FOR THE 3RD RESPONDENT.

[2008]DLSC2472
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													<main id="main" class="content" style="min-height: 60rem" >THEODORE ADJEI OSAE (DR.) &amp; ORS<o:p></o:p>vs.<o:p></o:p>NUMO NORTEY ADJEIFIO &amp; ORS<o:p></o:p>[SUPREME
COURT]<o:p></o:p>CIVIL
APPEAL NO. J4/22/2007<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

DATE: 7TH MAY, 2008.<o:p></o:p>

</div>COUNSEL:<o:p></o:p>E.
A. ACKAM FOR THE APPELLANTS.<o:p></o:p>OSAFO
BUABENG FOR THE 1ST RESPONDENT.<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

JOSEPH
K. MENSAH FOR THE 3RD RESPONDENT.<o:p></o:p>

</div>CORAM:&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

MISS
AKUFFO J.S.C. (PRESIDING), BROBBEY J.S.C., ANSAH J.S.C., ANINAKWAH J.S.C.,
ASIAMAH J.S.C.<o:p></o:p>

</div><o:p>&nbsp;</o:p>J U D G M E N T<o:p></o:p>&nbsp;BROBBEY, J.S.C: On 17th November 2000,
Asare-Korang J (as he then was) entered judgement for the appellants who sued
the first two respondents amongst others for a declaration of title to the
Land, a description of which was endorsed on the writ of summons&nbsp; and perpetual Injunction restraining them,
their servants, agents or assigns from having anything to do with the land. Dissatisfied
with the judgment, the respondents appealed to the Court of Appeal which
allowed the appeal and entered Judgement in their favour. The appellants then
appealed to this court against the decision of the Court of Appeal.<o:p></o:p>Seven
grounds of appeal were filed. The first three grounds are quite similar and
raise identical issues. The first ground of appeal read as follows:<o:p></o:p>“The judgment of the Court of Appeal
was against the weight of Evidence and that the court erred in not holding
that, on the balance of probabilities the Plaintiffs/ Appellants discharged the
burden of proof placed on them.”<o:p></o:p>&nbsp;<o:p></o:p>In
Akufo- Addo vs. Catheline [1992]1 GLR377 SC, in headnote 3, this Court held
that ‘where the appellant exercised the right vested in him and appealed
against the judgement on the general ground that the judgement was against the
weight of evidence, the appellate Court had jurisdiction to examine the
totality of the evidence before it and come to its own decision on the admitted
and undisputed facts. <o:p></o:p>As
an appeal is by way of rehearing, the Court of appeal was bound to consider
comprehensively the entire evidence before coming to a conclusion on the
matter. The burden of proof and persuasion remained on the appellants to prove
conclusively, on a balance of probabilities, the boundaries of the Land to
which they claimed a declaration of title and perpetual injunction. This burden
hardly shifts. Unless and until the plaintiffs who are the appellants are able
to produce evidence of relevant facts and circumstances from which it can be
said that they have established a prima facie case, the burden remains on them.
What then was the evidence adduced by the appellants in the current case?<o:p></o:p>In
the oral evidence of 2nd appellant, he said that the land was bounded to the
south towards the motorway by Adjiringano; on the west or left by Tessa,
Bawaleshie and Mpehuasem and to the north by Madina town.&nbsp; The 1st appellant’s description was as
follows; Tessa and Adjiringano to the south, on the north by Ogbojo village, on
the west by Mpehuasem and on the east by Otano. To successfully maintain an
action for a declaration of title to land, the appellants had to prove with
certainty the boundaries of the land claimed. They tendered exhibit J, H, K, M,
and N in support of their case. These exhibits suggested that Teshie quarter
lands do not extend beyond the railway lines by the Tema motor way. <o:p></o:p>The
respondents who were the defendants at the trial court contended that Teshie
quarter lands extend to the foot of the Akuapim Hills. In support of their
case, they tendered without objection exhibit 1D4. That was a document before
the Lands Commission in which a vivid description of Teshie Land tenure system
and the history behind the acquisition of same has been given. Exhibit 1D4
contains statements by 1st appellant in his undisputed capacity as chairman of
the Teshie Town Council and he gave the boundary of Teshie quarter lands as
ending at the Akuapim Hills. That was clearly in conflict with his testimony in
court.&nbsp; <o:p></o:p>What
then is the weight to be placed on the conflicting evidence adduced by the
contending parties? In the case of Yorkwa v Duah [1992-93] GBR 278, CA the
Court held that whenever there was in existence a written document and
conflicting oral evidence, the practice of the Court was to lean favourably
towards the documentary evidence, especially if it was authentic and the oral
evidence was conflicting. <o:p></o:p>The
conflicts in the evidence of the appellants showed that they failed to
discharge the onus of proof that lay on them. Apart from the conflict in the
evidence given by the 1st and second appellants on their accounts of the
boundaries, their description of the respondents to the extent that Teshie
lands extend to the foot of the Akwapim Hills was not supported by the evidence
on the record. The first ground of appeal failed and I would dismiss it. <o:p></o:p>Ground
two of the grounds of appeal read as follows:<o:p></o:p>‘The Court of Appeal misdirected
itself and ignored the geography of the Area in holding that the Plaintiffs did
not describe the subject matter with certainty to entitle them to a declaration
of title in their favour…’<o:p></o:p>This
ground is not in substance quite different from ground one. In support of
ground two, the appellants stated that they attached to their writ of summons,
a site plan which they also tendered as Exhibit ‘A’ at the trial and further
described the parcel of Land extensively in their endorsement on the statement
of claim. They added that as at the time the action was instituted in 1989,
rural Ga within which the land in issue was situated was undeveloped; and the
boundaries were in a state of flux for which reason they could not at the time
describe the land with the desired certainty and for that matter used
expressions like ‘vast land’ in their endorsement</main>