Abusuapanin Kwaku Gyekyei (Suing for Himself and on behalf of Odumase Aduana Royal Family, Kumawu) v. Philip Boakye and Maame Nyankomago (Deceased)

This is an appeal from the judgment of the Circuit Court, Kumawu, dated 15th August 2019. In that judgment, the trial Circuit Court dismissed the Plaintiff/Appellant’s claim for declaration of title to, and recovery of possession of, his ancestral land situate at a place commonly called “Obuokum Adomso” on Kumawu Stool land.

The parties shall maintain their designations as in the court below. From the record of appeal, the parties were not represented by counsel at the trial. The record also does not contain the Plaintiff’s statement of claim, although the statement of defence filed on 25th September 2017, appearing at page 12 of the record, makes reference to a statement of claim. This indicates that a statement of claim was indeed filed alongside the writ of summons filed on 22nd February 2017, thereby complying with Order 2 rule 6 of the High Court (Civil Procedure) Rules, 2004 (C.I. 47).

The need for a complete record of proceedings for an appellate court cannot be overemphasized, since an appeal is by way of rehearing and requires the appellate court to scrutinize all processes, including the writ, pleadings, witness statements, issues set down for determination, and the evidence led, together with all exhibits admitted or rejected. The responsibility for ensuring a complete record lies not only on the Registrar and court clerks, but also on the parties and their counsel. The compilation and transmission of a complete record of appeal is a condition precedent to the assumption of jurisdiction by the appellate court, since the record forms the basis of the rehearing and an inadequate record may lead to a wrong conclusion.

However, the requirement of completeness does not mean perfection, but rather that the record must contain sufficient material for the determination of the appeal. In Marley & Ors v Apeatu (2003–2004) 2 SCGLR 1191 at 1197, Wood JSC explained that it is not every missing part of the record that is fatal to the hearing of an appeal, but only those parts that are essential for determining the issues before the court.

Bearing this principle in mind, the court concluded, upon scrutiny of the record, that the absence of the Plaintiff’s statement of claim would not adversely affect the determination of the appeal, which was based on an omnibus ground relating to the evaluation of evidence. The parties had filed witness statements which were adopted as their evidence-in-chief and tested under cross-examination. The task of the appellate court was therefore to examine the entire record to determine whether the findings of the trial court were supported by the evidence on a balance of probabilities.

The Plaintiff’s claim, as contained in the writ of summons, was for declaration of title and recovery of possession of ancestral land allegedly trespassed upon by the Defendants. Since the identity of the land was not in dispute, the central issue before the trial court was to determine which of the competing versions of events was more probable.

From the Plaintiff’s writ and witness statement, he instituted the action as head of the Odumase Aduana Royal Family of Kumawu. Although the land was described in slightly different terms, there was no dispute that all references pointed to the same land. While the Plaintiff asserted that the land belonged to his family and had been trespassed upon, the Defendants contended that the land had been gifted to their ancestress, Amma Dapaah, wife of Nana Yaw Kwakye of the Plaintiff’s family, and had devolved to them through inheritance.

The Plaintiff testified and called Nana Osafo Agyekum II, the Aduanahene of Kumawu, to support his case. The Defendants’ case was led by the 1st Defendant and supported by Okyeame Asumadu Dietuo. Upon evaluating the evidence, including admissions made by the Plaintiff under cross-examination, the trial court found that the land had been gifted and that the Defendants had been in undisturbed possession for over one hundred years.

The trial court further held that Nana Yaw Kwakye, having been gifted the land, had the capacity to transfer it to his wife and her descendants, and that the land would not revert to the family merely because the cocoa farm on it had become fallow. On this basis, the Plaintiff’s claim was dismissed.

Dissatisfied, the Plaintiff appealed on the omnibus ground that the judgment was against the weight of the evidence, seeking a reversal of the trial court’s decision and judgment in his favour.

Upon reviewing the entire record, the Court of Appeal noted that the appeal was grounded on findings of fact. In such circumstances, as held in Koglex Ltd (No. 2) v Field (No. 2) (2000) SCGLR 175, the duty of the appellate court is to examine the record to determine whether the conclusions of the trial court are supported by the evidence, and to set aside the judgment only where it is unsupported by the evidence. I this exercise appellate court can make up its own mind on the facts and also draw inferences from them, just like the trial court.

As the authorities show, upon a complaint that a judgment is against the weight of the evidence, the appellate court is being invited to review the whole of the evidence and come to a pronouncement as to whether the judgment is supported by the evidence on record or not. See Oppong Kofi & Ors v Attibrukusu III (2011) 1 SCGLR 176 at 188; Tuakwa v Bosom (2001–2002) SCGLR 61; and Preka v Ketewa (1964) GLR 423 (SC). In Djin v Musah (2007–2008) 1 SCGLR 686, it was held that an appellant who contends that a judgment is against the weight of the evidence is by implication saying that there exist certain pieces of evidence on record which were ignored to his detriment or wrongly applied against him, and but for which the outcome of the judgment would have been different. The Court further stated that such an appellant assumes the onus of demonstrating to the appellate court the lapses in the judgment.

Although an appeal is by way of rehearing, and therefore entitles the appellate court to make up its own mind on the facts and draw inferences from them, appellate courts will only interfere with findings of fact made by a trial court where such findings are clearly shown to be wrong, based on a misapprehension of some evidence, or based on wrong inferences without any supporting evidence, among others. Appellate courts also recognize their disadvantage in not seeing or observing the witnesses as they testified. See Bonney v Bonney (1992–93) Pt II GLR 779 and Jass Co. Ltd v Appau (2009) SCGLR 265 at 275.

From the pleadings and the issues set down for determination, the plaintiff had the burden of proving that the defendants had trespassed onto his ancestral land. Although there is no dispute that the land in dispute falls within land belonging to the plaintiff’s Aduana Royal family of Kumawu, the evidence shows that the disputed land was gifted to Nana Yaw Kwakye, who was married to Amma Dapaah, an ancestress of the defendants. From answers given by the plaintiff in cross-examination at pages 34 to 35 of the record of appeal, he admits the marriage between Yaw Kwakye and Amma Dapaah and their cultivation of cocoa on the land. He also admits that the farm was gifted to Amma Dapaah and her son Kwabena Donkor, but sought to argue that the land would revert to the family upon the farm becoming fallow. Despite this assertion, he further admitted that the cocoa farm had become fallow by 1985, but that the descendants of Amma Dapaah have remained on it. In the Plaintiff’s cross-examination of the 1st defendant, appearing at pages 50 to 51 of the record of appeal, he tends to support the defendants’ claim that the land was indeed gifted to their ancestress, as he does not dispute their continued occupation even after the cocoa farm was destroyed in 1985, nor that his predecessor took no steps to recover the land.

The Plaintiff’s witness, who is the Aduanahene of Kumawu and a member of his family, did not assist the Plaintiff’s case. He appeared not to know the extent of the land in dispute, despite having inspected it sometime ago during a dispute between the parties. He was also unable to state the extent of the land allegedly trespassed upon and did not demonstrate sufficient knowledge of his family history. See pages 45 and 46 of the record of appeal.

The 1st defendant, testifying on behalf of the defendants, gave evidence of the gift of the disputed land to his family through Amma Dapaah and their continued occupation and cultivation of the land for over one hundred years.

The defendants’ account was corroborated by the evidence of Okyeame Asumadu Dietuo, a member of the Plaintiff’s Aduana Royal family. During cross-examination by the Plaintiff, his answers at page 55 of the record of appeal confirmed that the disputed land had been gifted to the defendants’ ancestress, Amma Dapaah, and had since devolved through her family line.

A party seeking declaration of title to land and an order of perpetual injunction bears the burden of proving not only the identity of the land but also that the defendant trespassed onto it. See Anane v Donkor (1965) GLR 188 SC; Bedu v Agbi (1972) 2 GLR 238 CA; and Mondial Veneer (Gh) Ltd v Amuah Gyebi XV (2011) 1 GLR 466. These authorities establish that failure to prove these elements on a balance of probabilities is fatal to the claim.

In the instant case, although the disputed land falls within land belonging to the Plaintiff’s Aduana Royal family, the evidence shows that it was gifted to Nana Yaw Kwakye, who cultivated cocoa on it with his wife Amma Dapaah, the defendants’ ancestress. The evidence further shows that even after the cocoa farm became fallow many years ago, the defendants have remained in continuous and undisturbed occupation, except for a minor dispute as to the extent of the land.

It was therefore incumbent on the Plaintiff, who acknowledged the defendants’ long occupation, to clearly identify the portion of land allegedly trespassed upon and demonstrate that the defendants had exceeded the boundaries of their occupation. The Plaintiff failed to lead such evidence.

Upon evaluation of the record, there is no doubt that the Plaintiff’s family gifted the disputed land to Nana Yaw Kwakye, and subsequently to Amma Dapaah, whose descendants have remained in possession. The Plaintiff’s admissions under cross-examination support this position and corroborate the defendants’ claim. See Manu v Nsiah (2005–2006) SCGLR 25 at 33; In re Asere Stool; Nii Koi Olai Amontia v Akotia Oworisika (2005–2006) SCGLR 637; and Asante v Bogyabi (1966) GLR 232 SC.

The law is settled that occupants of stools, skins, and family heads are bound by the acts of their predecessors, and once land has been parted with by way of sale, gift, or otherwise, the family, stool, or skin loses all interest in the land, except in rare cases of reversion upon failure of succession. See Sasraku v Okine & Ors. (1930) 1 WACA 49.

In the instant case, apart from the admission of the gift by the plaintiff, the evidence is overwhelming that the descendants of Amma Dapaah have been in occupation and cultivation of the disputed land.

In this judgment, we referred to the feeble attempt by the plaintiff to say that it was only the cocoa that was gifted to the defendants’ ancestress, and that in the event of the cocoa farm becoming fallow, the land would revert to the family. His own evidence however shows that the cocoa had become extinct by 1985, when he returned from his sojourn in Ivory Coast, yet the defendants have since been in occupation. This completely knocks off the bottom of his case that only the cocoa was gifted to the Defendants’ ancestress, Amma Dapaah.

If what he is alleging was the case, what has his family done to reclaim the land? As the trial court held at page 86 of the record of appeal, in his judgment, even if it was only the cocoa that had been gifted to the defendants’ ancestress, the plaintiff’s family’s claim to the land would have become extinct by virtue of Section 10 of the Limitations Act, 1972 (NRCD 54).

Although an appellate court in its duty to rehear a matter can make up its mind on the facts and also draw inferences from them just like the trial court, it is only when the facts as found by the trial judge are palpably wrong, or are based on a misapprehension of the facts or law, that the appellate Court will interfere. In Amoah v Lokko & Alfred Quartey (Subst.) Gloria Quartey (2015) SCGLR 505 at 514, the Court summarized what was laid down in the case of Fofie v Zanyo (1992) 2 GLR 475 SC, the following as the circumstances under which an appellate court will interfere with findings of facts made by a trial court:

“a) where the Court had taken into account matters which are irrelevant in law;

b) where the Court excluded matters which were critically necessary for inclusion;

c) where the Court came to a conclusion which no Court properly instructing itself would have reached; and,

d) where the Court’s inferences were not proper inferences drawn from established facts”.

In our duty to rehear the matter, we have critically evaluated the evidence on record, and also considered the submissions of both Counsel in this appeal, and are satisfied that the conclusions made by the trial Court on both the facts and the law are amply supported. We therefore find no merit in the appeal and same is accordingly dismissed.

Cost of GHC 7,000.00 is awarded in favour of Respondent against Appellant.