CASE NO: J8/47/2015
IN THE SUPERIOR COURT OF JUDICATURE
IN THE SUPREME COURT
ACCRA – A.D. 2018
CORAM: ANSAH, JSC (PRESIDING)
ADINYIRA (MRS), JSC
AKOTO-BAMFO (MRS), JSC
12TH DECEMBER, 2018
NANA ANTI OWUSU
(SUING FOR HIMSELF AND ON BEHALF OF SARAH
ALHAJI ABDUL AZIZ
alias PAPA WALA ……. DEFENDANT/APPELLANT/APPELLANT
The major issue for determination in this appeal, notwithstanding the number of grounds of appeal filed by the appellant herein, has to do with the ownership of a piece or parcel of land forming part of land commonly known and described as Otinshi Lands, which the Supreme Court in a related case, described as Otinshie Village lands. Each of the parties herein laid adverse claim to the very land in dispute through their claim and counterclaim. The issues which the parties therefore settled on with the trial court for determination during the trial were as follows:
1. Whether or not plaintiff’s grantors have valid title to the land described as Otinshi Lands;
2. Whether or not the subject-matter forms part of Otinshi Lands.
3. Whether or not plaintiff’s grant was fraudulent;
4. Whether or not plaintiff’s registered document was fraudulent;
5. Whether or not plaintiff demolished defendant’s property; and
6. Whether or not plaintiff had capacity to sue.
The other issue that arose from the counterclaim of the defendant but which was not made part of the agreed issues, though considered by the trial court was; whether or not the defendant was entitled to his counterclaim.
The case, which has travelled from the High Court all the way to this apex Court commenced in 2007. The brief facts of it are that the respondent herein was the plaintiff in the trial court and would hereinafter be referred to as ‘plaintiff’, whilst the appellant was the defendant and would maintain the title ‘defendant’ throughout. In 1995, one Krampah Kyem, an assignee of the Osae and Effutu or Bedzin families, made a grant of a portion of part of the Otinshi lands assigned to him by the said families to the plaintiff and her daughter by name Kwansima. It was the plaintiff who purchased her young daughter’s plot for her in addition to his. Though plaintiff said the grant was made to him in 1995, he managed to register the lands in 2005. In the same year, i.e. 2005, he constructed a fence wall around the plot measuring about 0.54 acres, deposited 3,000 sandcrete blocks and 4 trips of sand on same. In 2006 the defendant, without any notice to him, went and placed land guards and licensees on the land and demolished his fence wall. All efforts to eject defendant from the land proved futile so he resorted to this action in 2007.
The defendant’s defence as pleaded was very simple. According to him, the land in dispute, which he admits is part of Otinshi lands, did not belong to the Osae and Affutu families who were the assignors of plaintiff’s assignor. The assignment to the plaintiff was therefore fraudulent. According to him, he initially had a grant of the land from the Numo Nmashie family of Teshie which he knew to be the owners of the land in 1994. He immediately built a house and fenced it. In 2001, he got to know that the land did not belong to his original grantors and that the Court of Appeal had declared the Tsie We family and Kle Musum Quarter of Teshie as the owners of Otinshi lands so he went there to attorn tenancy to them and did obtain a new lease from them. He also counterclaimed for title to the very land. There is therefore no doubt to the fact that both parties were laying their various claims of title to the disputed land which, from their pleadings, was the same land (i.e. Otinshi land) which they said they acquired from the Osae family and the Tsie We/Kle Musum Quarter respectively.
The battle between the grantors of the two parties herein; i.e. the OSAE FAMILY and the TSIE WE/KLE MUSUM QUARTER
While the plaintiff and defendant in this appeal were fighting over the disputed land in the trial court, their so-called allodial title owners and grantors; i.e. the Osae familiy and the Tsie We/Kle Musum Quarter, were also fighting over the allodial titleship over the whole of Otinshie lands (which included the disputed land). This case under reference, as noted above, travelled up to the Supreme Court. In the defendant’s own words, it was when the Court of Appeal declared Tsie We/Kle Musum quarter as allodial owners of the land on 15th July 2005 that he rushed to them to attorn tenancy to them as his new grantors. This was what the defendant pleaded under paragraphs 4 and 5 of his Amended Statement of Defence filed on 14/2/2013 pursuant to leave granted by the trial High Court on 12/2/2013:
“4. Defendant says that he was initially granted the land in dispute in 1994 by the Numo Nmashie family of Teshie. He immediatey built a house and fence round it. Defendant would tender pictures of the house at the trial.
5. It later came to defendant’s attention that the Tsie We family/Kle Musum quarter of Teshie headed by Numo Adjei Kwanko II the Osabu and Ayiku Wulomo of Teshie has been declared owners of the land by the Court of Appeal in Suit No CA 22/2001. Defendant approached the Tsie We/Klu Musum quarter to attorn tenancy to Tsie We family and was therefore given indenture by the Tsie We family/Kle Musm quarter of Teshie.”
The Osae Family, however, did not end the matter there and appealed further to the Supreme Court against the decision of the Court of Appeal which the defendant relied on in this case in the trial court. Before the Supreme Court delivered its final decision on the matter between the Osae Family and the Tsie We/Kle Musum quarter as to who held the allodial titleship to the Otinshi lands on 7th May 2008, it first made certain undisputed factual findings on three main issues, with reference to the decision of this Court in the case of AKWEI & Others v AWULETEY & Others  GLR 231 at page 236. I call them undisputed because none of the parties controverted these facts. These were:
- Quarter lands are lands within the quarter of a town.
- Outskirt lands are lands which are immediately adjacent or contiguous to a quarter land.
- Rural lands, like all other Osu lands, are neither quarter nor outskirt lands.
The Osae Family who were the appellants in the case had invited the Supreme Court to hold that Otinshi lands were rural lands for which reason the Osae Family held absolute title over those lands. The Tsie We/Kle Musum quarter, on the other hand, invited the Court to hold that Otinshi lands were quarter lands, the absolute titleship of which rest with the Tsie We/Kle Musum Quarter of Teshie. On the 7th of May 2008, the Supreme Court overturned the decision of the Court of Appeal and held in part that: “…the ancestor of the Osae family exercised his inherent right and formed the village of Otinshi out of the then Teshie land and thereby created allodial title. That was before quarter lands were created in Teshie. There was no evidence by which it could be said that the allodial title to Otinshi would be converted into usufructuary title or that it was limited only to the areas they had actually reduced into their possession. The conclusions of the Court of Appeal on this issue were not therefore supported by the evidence on the record.’
The Supreme Court then went ahead to hold that Otinshi village lands including its farmlands, possessions; cemetery, etc. belonged to the Osae Family as allodial owners but not the Kle Musum Quarter and that Tsie We/Kle Musum quarter had no lands at Otinshi. Based on the above decision of the Supreme Court, the trial High Court, after properly analyzing the totality of the testimonies before it and in compliance with article 129(3) of the Constitution, granted plaintiff judgment on his claim and dismissed defendant’s counterclaim. The defendant felt dissatisfied with the judgment of the High Court and appealed against same to the Court of Appeal on eight (8) grounds.
Appeal to the Court of Appeal
The appeal was filed on 26th March 2014 and the grounds of appeal were eight in all which I do not find necessary to repeat here. The Court of Appeal lived to its duty as a rehearing court and considered all the grounds canvassed by the parties vis-à-vis the evidence on record. The Court of Appeal found no merits whatsoever in the appeal and dismissed it in its entirety by affirming the decision of the trial High Court. The Court of Appeal, after tackling each issue raised in the appeal and particularly on the general ground that the judgment was against the weight of evidence, held: “Looking at the evidence on record as a whole, the trial judge properly evaluated the evidence on record and his findings of fact are clearly supported by the evidence on record….It is for these reasons that the appeal fails in its entirety and it is accordingly dismissed”.
The defendant has exercised his constitutional right and climbed further up to this Court and this makes his appeal one against the concurrent findings of two lower courts; in this case the High Court and the Court of Appeal. The consequences of such an appeal are notorious to be repeated here as there is ample judicial authority from this apex court on the requirements of the appellant and the duty of the Court in handling such appeals. See the notorious cases of this Court in: 1. ACHORO & Another v AKANFELA & Another [1996-97] SCGLR 209; 2. GREGORY v TANDOH IV & HANSON  SCGLR 971; 3. FRABINA LTD v SHELL GHANA LTD  1 SCGLR 429; 4. AWUKU-SAO v GHANA SUPPY CO LTD [2009 SCGLR 710; 5. JASS CO LTD v APPAU  SCGKR 265; 6. KOGLEX (No.2) v FIELD  SCGLR 175
In brief, the principle governing such appeals as laid down by this Court in all the cases referred to above, including a host of others not mentioned here, which we quote from the Achoro v Akanfela case supra is that: “in an appeal against findings of fact to a second appellate court like …(the Supreme Court), where the lower appellate court had concurred in the findings of the trial court, especially in a dispute, the subject matter of which was peculiarly within the bosom of the two lower courts or tribunals, this Court would not interfere with the concurrent findings of the two lower courts unless it was established with absolute clearness that some blunder or error resulting in a miscarriage of justice , was apparent in the way in which the lower tribunals had dealt with the facts. It must be established, e.g. that the lower courts had clearly erred in the face of a crucial documentary evidence, or that a principle of evidence had not been properly applied; or, that the finding was based on erroneous proposition of law that if that proposition is corrected, the finding would disappear…It must be demonstrated that the judgments of the courts below were clearly wrong.” We did emphasize in these decisions that this demonstration of the wrongness or otherwise of the two concurrent judgments is the task of the one who makes that assertion and that is the appellant who, in the instant case, is the defendant.