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AQUAH v. COFIE


  • New
  • 1961-07-06
  • HIGH COURT
  • GLR 475-481
  • Print

ADUMUA-BOSSMAN, J.


Summary

Land law?-Action for declaration of title?-Onus of proof?-Plaintiff and defendant claim through separate grantors?-Failure of plaintiff to establish title of his grantor.

Headnotes

The plaintiff took the conveyance of a piece of land on the 1st December, 1948, from the Sempe stool. On the 2nd January, 1956, the same piece of land was [p.476] conveyed to the defendant by the James Town (Alata) Stool. When in November, 1958, the defendant began to build on the land, the plaintiff brought this action for a declaration of title, recovery of possession, damages for trespass and an injunction order. Three plots adjacent to the one in dispute had been granted by the Sempe stool to three separate grantees, viz. Coleman, Bruce alias Torton and Einhorn and Nahas. Coleman occupied his plot undisturbed, Bruce was challenged by a Mr. Botchway who had taken a grant of the same plot from the James Town (Alata) Stool. Botchway succeeded in establishing a better title, but Bruce was allowed to retain the plot because the court held that it would not be equitable to deprive her of it after she had expended money and energy in improving it. Einhorn and Nahas were forced to take another grant of the plot from the James Town (Alata) Stool. This latter grant was processed through the concession court unopposed.

Judgement

JUDGMENT OF ADUMUA-BOSSMAN, J.

ACTION for declaration of title to land.

By his writ of summons the plaintiff claims a declaration of title, recovery of possession, damages for trespass and an order of injunction against the defendant in respect of a building plot situate at West Korle Gonno described in detail in the said writ. By his statement of claim he disclosed that he claims under and by virtue of an indenture of conveyance dated the 1st December, 1948, made between Nii Tetteh Kpeshie, Sempe Manche as vendor and himself, the plaintiff as purchaser; and that he entered into possession immediately after the sale and fixed concrete cement pillars ?"to mark the area of his occupation?" and was occupying virtually undisturbed until some time in November, 1958, when the defendant unlawfully entered upon the land and commenced building operations thereon.

[p.477]

The defence disclosed in the statement of defence was that the plot was granted and conveyed to the defendant by an indenture of conveyance dated the 2nd January, 1956, made between Nii Kofi Akrashie II, James Town Manche, as donor and the defendant as donee, and the defendant relies on the grant contained in that indenture to justify his entry upon the plot in dispute.

The plaintiff has filed a copy of topo sheet No. 219 (admitted as exhibit Z) with the plot in dispute shown edged red or pink thereon. The parties are agreed that the plot on the sheet is the one in dispute.

The straightforward issue which emerges from the pleadings is whether the plot in dispute formed part of Sempe stool land so that good and valid title was granted and conveyed to the plaintiff under his indenture of conveyance (admitted as exhibit A), or whether on the contrary it formed part of James Town (Alata) stool land so that it was rather the defendant who acquired good and valid title thereto by virtue of his indenture of conveyance (admitted as exhibit 1).

It is unnecessary to point out, as indeed was conceded by his counsel, that the plaintiff suing in declaration of title, assumed the onus of establishing the title which he claims by the strength of his case not by any weakness in the case of the defendant. To borrow the classic words of Webber C.J. (Sierra Leone) in Kodilinye v. Odu:

?"The onus lies on the plaintiff to satisfy the Court that he is entitled on the evidence brought by him to a declaration of title. The plaintiff in this case must rely on the strength of his own case and not on the weakness of the defendant?'s case. If this onus is not discharged, the weakness of the defendant?'s case will not help him and the proper judgment is for the defendant. Such a judgment decrees no title to the defendant, he not having sought the declaration. So if the whole evidence in the case be conflicting and somewhat confused, and there is little to choose between the rival traditional stories the plaintiff fails in the decree he seeks and judgment must be entered for the defendant.?"1

See also Nkwabisi Anor. v. Idigo Anor.2 in which Lord Jenkins cites and adopts an earlier dictum of Webber J. (as he then was) in the case of Ekpo v. Ita as follows:

?"In a claim for a decree of declaration of title, the onus is on the plaintiff to prove acts of ownership extending over a sufficient length of time, numerous and positive enough to warrant the inference that the plaintiffs were exclusive owners?"3

The primary question therefore is whether or not this onus has been adequately and/or sufficiently discharged. It falls firstly to examine the evidence adduced by and on behalf of the said plaintiff.

The plaintiff himself, in the nature of things, could only testify as to his purchase of the plot and the execution of a conveyance for him, followed by his causing boundary pillars to be fixed for him ?"to demarcate his area of occupation,?" (as Verity (then Ag. J.A.) described the effect of fixing boundary pillars in Danquah v. Wuta-Ofei4). His further evidence [p.478] was as to his virtually uninterrupted occupation of the plot in dispute until the date of the defendant?'s entry and the commencement of building operations on the land which resulted in the institution of this action. In respect of his evidence of occupation, it is but fair to say that it appears substantially accurate. But it is obvious that it was not the type of occupation as could be held to extinguish the title of the original owner, assuming such owner were a person or stool other than the Sempe stool which granted the land to him; (see Nkoom v. Etsiaku,5 Nchirahene Kojo Ado v. Buoyemhene Kwadwo Wusu6 and Suleman v. Hannibal Johnson7.)

It is significant however that on the plaintiff?'s own showing, he did not cause any solicitor to make on his behalf, nor did he himself make, any investigations whatsoever into the title offered for sale and transfer to him, his material evidence on the point being as follows:

?"per curiam ?- Who made investigations into the title for you before you bought the land?

?"per plaintiff ?- I went to Sempe Manche that I wanted land to buy; and he sent some elders together with a surveyor and they showed me that portion. I then went back to the Manche and said I liked the place and we concluded arrangement. I was asked to prepare a document with dimensions I was given, and I got the document prepared and we concluded the deal.?"

His second witness Anna Bruce gave evidence concerning the plot immediately to the north of that in dispute abutting Guggisberg Avenue, and testified that she arranged and purchased a portion form Sempe Manche Nii Tetteh Kpeshie II for her son-in-law called Albert Quao Sackey and that a conveyance dated the 16th August, 1948 (exhibit C) was executed for her son-in-law in respect of the said purchase. Her further evidence was that the platform of a building was constructed on the plot almost immediately after the acquisition of the plot, but since then the building has been carried no further. Her son-in-law has been working at Kumasi and he has not reported to her that any person has challenged him about the plot with the platform on it, and she herself has not been challenged by any person. The important point to notice about her evidence however is that she did not say anything about the title of the Sempe stool, beyond the fact that the title to the plot about which she deposed was granted to her son-in-law.

She was followed by the third witness Awula Adjuah Bruce otherwise known as Mrs. Mary Adjuah Torton. She testified that as far back as the time of the late Sempe Manche Anege Akwei, she applied for and was granted the plot (shown marked with her name on the filed topo sheet exhibit Z). The grant was confirmed by an indenture of conveyance dated the 30th July, 1948 by the present Sempe Manche, a copy of which indenture is exhibit B1. Under cross-examination however she admitted that she has had to fight a claim to the plot made by another claimant claiming under a grant from and in right of the James Town (Alata) stool. That litigation will be referred to again later in this judgment.

[p.479]

Another boundary owner witness called was Mr. William F. Coleman, Director of Broadcasting (P.W. 3) who also testified that he purchased the plot immediately to the west marked with his name on the topo sheet exhibit Z from the Sempe stool under indenture of conveyance dated the 13th March, 1953 copy whereof is exhibit B2. He has built on it and has been in occupation since 1959 so far without any challenge from the James Town (Alata) stool. He also said nothing about the Sempe stool?'s title beyond the fact that that stool conveyed the land to him.

Next a witness, one Emmanuel Kofi Barnor, a mason was called, and he testified that he lived on another plot close to that in dispute and he became friendly with the plaintiff some time before the incident giving rise to this action, and that he had seen the plaintiff?'s pillars and knew him to be in occupation. Then one afternoon the plaintiff called him to witness something. He accompanied him to the plot where he found three labourers carrying on building operations on the land. They said that they were working there on the orders of the defendant?'s father who, upon enquiry, confirmed their information. It is of considerable significance, however, that upon enquiry this witness deposed that he was occupying his plot in right of the James Town (Alata) stool.

As may be observed, these witnesses whose evidence has been cursorily reviewed so far, being strangers to the Sempe stool, could not give evidence of the title of the Sempe stool. There was however a representative of the stool called as a witness, namely the first witness Thomas Nii Ofori, linguist to the Sempe Manche, and his material evidence was the relatively short one as follows:

?"I know the plaintiff. Our stool granted him land. I am partially literate. I know the plaintiff was given a conveyance. I myself signed as a witness. I see the conveyance and I identify my signature as a witness. (Tendered and admitted as exhibit A) I know the situation of the land. We have granted land to other persons round about. We granted land to Awura Adjua Bruce otherwise known as Mrs. Torton; then Mr. Coleman; then another man called Sackey whose initials I have forgotten.

Q. Have you granted land to Dr. Einhorn and Nahas?

A. Yes, the proprietors of Plaza Cinema. They were given a document.

Q. Will you look at these registered copies of conveyances to Awura Adjua Bruce, Coleman and Dr. Einhorn and Nahas?

A. Yes, I see them. Some I signed as a witness. Tendered B1. Awura Adjua Bruce?'s B2. Coleman?'s B3. Einhorn and Nahas?'?"

He was cross-examined even more tersely and he answered as follows:

?"Q. How long have you been a linguist?

A. About 18 years.

Q. The land round about that in dispute, is it not Ngleshie Alata stool land?

A. No, I was told it is Sempe stool land.

Q. Do you know the land of Nii Sampah Kojo near this land in dispute by Link Road?

A. Yes, I know the house; it is one of the estate houses.

Pausing here to consider the evidence above reproduced, being that of the principal witness put forward to testify concerning the title of the [p.480] Sempe stool, it is difficult to suppress or withhold the observation that it is the poorest possible evidence towards establishing title. Indeed, it is clear on the face of it that nothing whatsoever in proof of the Sempe stool?'s alleged title to the land was said at all, and it appears as though the court was merely being asked to assume that because the stool had made grants of three plots near the plot in dispute, therefore the stool had a valid title. But not only is argument of that nature obviously quite fallacious, but the undisputed evidence as to certain events or incidents concerning some of the plots subsequent to the grant of them by the Sempe stool, seem decisively to refute the claim or suggestion that the title to them was really in the Sempe stool.

The first plot concerning which incidents occurred subsequent to the grant thereof is, as we have already noticed, the plot of Awura Adjuah Bruce, otherwise known as Mrs. Mary Adjuah Torton, the plaintiff?'s second witness. As already indicated her claim to the land in virtue of a grant from the deceased Sempe Manche Anege Akwei, was challenged by one W.K. Botechway who claimed under a grant from the late James Town Manche Kojo Ababio, subsequently confirmed by his successor, late Ahuma Kojo. The claimant in right of the James Town Alata stool, W.K. Botchway, instituted an action against her in suit No. 266/46 in the Ga Native Court ?"B?". After due investigation the court was able to determine the suit in favour of the defendant, not on the ground that the title was established to be in the Sempe stool, but on the equitable ground that she had occupied adversely in circumstances which would make it inequitable to eject her. The concluding portion of the judgment was the following:

?"The Court is of the opinion that the Sempe Mantse and the James Town Mantse were one, and as they are satisfied that the land was first granted to Defendant who looked after, cultivated and made the land valuable long before it was granted to Plaintiff, they have no alternative than to support and uphold Defendant?'s Claim. (See exhibit 10).?"

The terms of the above judgment can hardly be said to be an acknowledgment of the exclusive title of the Sempe stool to the plot the subject-matter of that action.

The next plot is that of Einhorn and Nahas granted on lease by the Sempe stool under exhibit B3. Neither of the lessees, Einhorn and Nahas, was called to give evidence, possibly by design. But what happened concerning their plot was related by the second witness for the defendant, Shippi Adama Asua, who testified that: ?"Nahas was ejected; and then he came and took a concession lease from the Alata stool.?" Mr. Emmanuel Sagoe Jeffrey, registrar attached to the Land Registry of the High Court was called as the third witness for the defendant and he gave unchallenged evidence that the grant of the plot on concession lease by Nii Kofi Akrashie, James Town Manche, of the Plaza Cinema plot (which is the Einhorn and Nahas plot) was unopposed. It is to my mind a most decisive incident on the question of the competing titles. The Sempe stool had granted the land by deed dated the 9th October, 1954 (see exhibit B3); the lessees had been disturbed and forced to take another grant by deed dated the 4th August, 1955, from the Alata stool. It seems to me the Sempe stool [p.481] was in duty bound to take steps to protect its grantees as soon as they were disturbed. It did not see fit to institute proceedings against the James Town (Alata) Manche for interfering with its tenants. The tenants however took the precaution to pass the matter through the concessions court where notice was given to the whole world that the grant was by the James Town stool and opportunity was afforded for opposition to be lodged if anyone disputed the right of the grantor, and again no opposition was made by representatives of the Sempe stool. That conduct of acquiescing in the grant of the lease of the Plaza Cinema plot is, in my view, conduct which must be held decisively to operate to estop the Sempe stool from disputing the competing James Town (Alata) stool?'s title at any rate to that Plaza Cinema plot.

In the case of Kponuglo v. Kodadja8, Lord Alness referring to the onus of proof of title said that it was ?"the onus . . . of demonstrating beyond reasonable doubt that the title to the disputed land is in him?". If then the position be established that the Sempe stool, by its conduct in not challenging in the concession proceedings the James Town (Alata) stool?'s grant of that rather large area of the Plaza Cinema plot, must be deemed to have acquiesced in it and is therefore estopped from denying the Alata title, to say nothing of the doubtful position of Awura Adjuah Bruce?'s plot and the clear position about the witness Barnor?'s plot, it is possible to hold that the plaintiff ?"has demonstrated beyond reasonable doubt?" that the title to the disputed land was in the Sempe stool and has now been transferred to him? The answer obviously must be in the negative. In view of that situation, it is unnecessary to examine the evidence adduced by and on behalf of the defendant to see how far it succeeds or fails to establish the James Town (Alata) stool?'s alleged title on which the defendant relies. The position being that the evidence adduced by and on behalf of the plaintiff regarded in the light of undeniable and undoubted facts disclosed by the defendant and his witness is such that it fails to ?"demonstrate beyond reasonable doubt that the title to the disputed land is in [the plaintiff]?". It implies that the plaintiff has failed to discharge the onus.

The proper judgment therefore, as indicated in Kodilinye v. Odu, supra, must be judgment for the defendant, and judgment is accordingly hereby duly entered in favour of the defendant, with costs assessed at 60 guineas, including 40 guineas counsel?'s costs

Decision

<P>Action dismissed.</P>

Plaintiff / Appellant

In person.

Defendant / Respondent

Amoo-Lamptey

Referals

(1)  Kodilinye v. Odu (1935) 2 W.A.C.A. 336

(2)  Nkwabisi & Anor. v. Idigo & Anor., Privy Council, July 28, 1959, unreported

(3)  Ekpo v. Ita (1932) 11 N.L.R. 68

(4) Danquah v. Wuta-Ofei & Anor. (1956) 2 W.A.L.R. 185

(5)  Nkoom v. Etsiaku (1922) F.C. 22, 3

(6) Nchirahene Kojo Ado v. Buoyemhene Kwadwo Wusu (1938) 4 W.A.C.A. 96

(7) Suleman v. Hannibal Johnson (1951) 13 W.A.C.A. 213

(8) Kponuglo v. Kodadja (1931) 2 W.A.C.A. 24.

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