Division: IN THE SUPREME COURT
Date: 22 JUNE 1964
Before: MILLS-ODOI, OLLENNU AND ACOLATSE JJSC
JUDGMENT OF OLLENNU JSC
Ollennu J.S.C. delivered the judgment of the court. This is an appeal from the judgment of Adumua-Bossman J. (as he then was), given in the High Court, Accra, on 26 June 1961, which reversed a decision of the Accra East Local Court. The original appellant, hereinafter called the plaintiff, died when the appeal was pending in this court, and Mensah Nii Boi was substituted upon his application for him, to prosecute the appeal.
The claim of the plaintiff is for a declaration of title and damages for trespass to, and perpetual injunction in respect of a piece of land situate at Labadi. The respondent, hereinafter called the defendant, counterclaimed for a declaration of his title to and interim injunction in respect of the identical land.
The land in dispute is a portion of a section of Labadi land owned by a quarter known as Abafum. By ancient grant which, according to one Edward Quaye, a 68-year-old gentleman, second witness for the plaintiff, was made when he had not been born, the Abafum quarter conveyed portion of their said land to the Basel Mission, predecessors of the Presbyterian Church; the western boundary of the land so granted was demarcated, and upon the said grant, the missionaries erected pillars to mark the same; those pillars were described by the third witness for the defendant as ancient pillars. Some time in 1925, the church acquired a piece of land belonging to the defendant’s family, and in replacement, gave him portion of the land granted to them by the Abafum quarter. The defendant went into possession of the land given him in exchange for his family land, built on portion of it, and planted a hedge of Neem trees and Madras thorns to enclose an area which he claimed comprised his grant.
In 1944 the Presbyterian Church who had then taken over the land of the Basel Mission, had a plan made of the area granted to the church; they had the elders of the Abafum quarter present at the survey to ensure that they kept within the ancient boundaries. This conduct of the church complies with customary law. In the course of the survey an additional pillar was erected along that ancient boundary, at that part of it where the defendant’s land is. The plan exhibit B in the case was made in consequence of that survey.
In 1959 the Abafum quarter granted to the plaintiff a portion of their land which forms boundary with the area granted to the church. The eastern boundary of the plaintiff’s land therefore runs along the church’s ancient boundary with the Abafum quarter, and cuts across the area fenced in by the defendant.
The defendant is an old man, and unfortunately blind; therefore although he appeared to have been present at the trial, one Andrew Richard Adzei Ashong was granted permission to represent him and to assist with exhibits which might be tendered. After the close of the plaintiff’s case, the defendant took the oath but did not give evidence himself, the said Andrew Richard Adzei Ashong proceeded to speak as if it were the defendant giving evidence. The defendant thereafter called four witnesses.
After the close of the case for the defence, the local magistrate inspected the area in dispute, then heard an address on behalf of the defendant. In due time he delivered judgment in favour of the plaintiff. He held inter alia that the defendant was bound by the boundary of the land as shown by his grantor, the church, and as appears on exhibit B. On the evidence, the findings made by the local court were clear, concise and well-reasoned.
The learned judge of the High Court reversed the decision of the local court, dismissed the plaintiff’s claim and entered judgment for the defendant, for declaration of his title to the area of land in dispute, and made an order for perpetual injunction against the plaintiff.
The appellant appealed against that judgment of the High Court on six grounds of which the most important are:
“(i) The learned judge allowed his mind to be influenced by evidence which was wrongly accepted and further allowed his mind to be influenced by evidence which was challenged by a witness of the respondent and ought consequently to have been rejected.
(ii) In his exhaustive judgment the learned judge did not at all consider the case of the appellant and the arguments put up by his counsel on his behalf.
(iii) The judgment of the learned judge is erroneous and inter alia sought to decree a relief which was not asked for.
(iv) The judgment is against the weight of evidence.”
On the first ground counsel for the plaintiff pointed out that the decision of the learned judge was based materially upon the statement made by the representative of the defendant. He submitted that since the representative purported to speak as if it were the defendant himself giving evidence, the whole of that statement is inadmissible and should have been completely disregarded by the High Court. Counsel cited Adabla v. Agama1 to support his submission. Counsel for the defendant conceded this point made by his learned friend.
It is trite law that if a person representing a party to a suit in a local court gives evidence in the first person in the name of the party whom he represents, as if it were the party himself giving evidence, the whole of that evidence is inadmissible, and should be completely disregarded as if that evidence had not been given. In addition to the case of Adabla v. Agama (supra) cited by counsel for the plaintiff there is also the case of Kissiedu v. Ankrah2; the case of Osei v. Asiedu-Ofei3 is to the same effect.
But the position in this case is worse than it is in those other cases. In this particular case the representative Ashong never took an oath and did not affirm, therefore all that he said is a wash-out. In law no judgment can be given on such alleged evidence. The learned judge therefore erred in considering that statement, and in basing his judgment upon it.
The submissions of counsel for the plaintiff on grounds (ii) and (iv) above may be taken together. It is, that having expunged the statement of the defendant’s representative from the record, the case of the plaintiff stood unchallenged, and the learned judge therefore misdirected himself in holding that the plaintiff was estopped by acquiescence on the part of his grantors, the Abafum quarter, from denying the title of the defendant to the land. Counsel for the defendant on the contrary submitted that even conceding that the statement of the defendant’s representative should be disregarded, there is sufficient evidence led by the witnesses for the defence which support the findings made by the learned judge.
In the course of his judgment the learned judge of the High Court said:
“In his judgment the magistrate said: ‘it was established that the land which Adu occupied was granted by the Presbyterian Church and as such the boundaries would be known by the Elders of the Church.’ I am afraid I entirely disagree. If it had been one or more of the original Elders who took part in making the grant, then there might be some degree of justification in the magistrate taking that view. But I cannot agree that the Elders of the Mission who purported to agree with the Abafum elders to fix a new boundary in 1944 necessarily knew better than their honest old predecessors of former years. The whole demarcation business of 1944 savours unpleasantly of an inglorious attempt on the part of the then Elders of the Church to collude
with the Abafum elders to provide some grounds for depriving the appellant of land which he had occupied without question for nearly twenty years previously and in my view, shows the Church or Mission Elders in a very discreditable light. May be most of the influential Church Elders were also of the Abafum quarter who are more concerned with the material interests of their quarter and the gain which could undoubtedly accrue from reclaiming lands parted with for a song in days long ago when land was of little or no value, to be sold in these days when land values are so high, than with the high lofty ideals of the Presbyterian Church. But it
is unnecessary to speculate any further about the position. The factual and legal position is that the demarcation does not and cannot affect the appellant Adu’s title acquired as far back as 1925 one jot, particularly when his occupation in virtue of that title openly and publicly before the very eyes of the Abafum elders was not challenged but rather acquiesced in for the nineteen years prior to that demarcation.”
We asked counsel for the defendant if he could find any title of evidence on the record which warrant the serious allegations of dishonesty and improper conduct which the learned judge made against the elders of the church and of the Abafum quarter. He confessed he could find no justification for those remarks of the learned judge, and added that he had previously expressed that opinion to his learned friend, counsel for the plaintiff. We would observe that those remarks of the learned judge were most unfortunate, and should never have been made.
Now the passage quoted from the judgment of the High Court reveals that the learned judge misdirected himself on every material point in the case. In the first place he acted upon a supposition that the mission and the Abafum elders fixed a new boundary in 1944, when the evidence is that the ancient pillars on the ancient boundary are there, and all that was done was to go over that boundary and to erect along it one new pillar in line with the ancient pillars erected by the German missionaries. That ancient boundary with the pillars thereon is shown on exhibit B, the plan made in 1944. The “honest old predecessors of former years” of the church may be dead as the learned judge rightly pointed out, but what about the stubborn ancient concrete pillars erected by them which still stand firm eloquently testifying to their honesty, and the honesty of their successors, the present elders; can those ancient concrete pillars lie? We think not.
Again the learned judge misdirected himself by failing to direct his attention to the evidence given by the defendant’s own witness Bennett Edward Tetteh Boye, his third witness, that the church pointed out to the defendant when he fenced in the land that he had overstepped the boundaries of the land given to him by the church, but instead of the defendant rectifying the situation, his daughters abused the elders of the church for so drawing attention to the trespass.
It is true that the evidence, supported by the inspection report of the local magistrate, shows that the defendant fenced in the land in dispute together with the land on which his building stands, and that he did so about 36 years or so ago, and that he and his children have consistently resisted any attempt made to get him to shift his hedge to the proper line. But can those facts operate either in equity or in customary law to estop the Abafum quarter or their grantee, the plaintiff, from asserting title to and recovering possession of that portion of the land in his wrongful possession? The answer is no, and the reasons for that answer are as follows:
In the first place the church from whom the defendant derived title, did not own any land beyond the boundary along which are the ancient pillars; therefore even if they had granted to the defendant the whole of the land fenced in by him, which they deny, their grant will be invalid and ineffective in respect of the land west of the boundary, and the defendant got no title thereby to the land west of their boundary. In any event the existence of the ancient pillars bear out the truth of the church’s assertion that the grant they made to the defendant terminates in the west with the ancient boundary.
Again both from the principles of equity-which is now part of the Ghana common law-and the principle of customary law, the elements necessary to establish acquiescence are: (1) the person who enters upon the land of another person must have done so upon honest, though erroneous belief, that he had right to occupy the land, (2) he must have expended some considerable sum of money on or in respect of the land upon the faith of his mistaken belief, such that he cannot be compensated for in money’s worth, (3) the owner of the land must know all the time that he has right to the land which is inconsistent with the erroneous right claimed by the other, (4) the owner must know of the mistaken belief of the other person, and (5) the owner must by his silence or otherwise have fraudulently encouraged the other party to spend his money to develop the land and had not called his attention to his error: see Mercantile Investment and General Trust Co. v. River Plate Trust, Loan and Agency Co.,4 Abbey v. Ollennu,5 Thompson v. Mensah6 and also the Nigerian case cited by the learned judge of the High Court, namely, Suleman v. Johnson.7 If any one of those five essentials is proved not to exist, there is no acquiescence and an order for recovery of possession will be made against the person in possession irrespective of the duration of his said possession.
Applying those principles to this case, it is clear that the evidence that the defendant was warned by the church of his trespass, the existence of the ancient boundary and the evidence of the resistance he and his children gave, as his own counsel pointed out, to every effort made to correct any erroneous belief he might have had, negatives any presumption that his possession was based upon an erroneous belief in his title to the land, or that his wrongful possession was fraudulently encouraged by the true owners. And as to expenditure of capital to develop that portion of the land, the inspection report of the local magistrate shows that the only structure on that part of the land is a corrugated asbestos sheets structure in the course of construction during the progress of the suit, apart from that the only thing the defendant can point to, is
the hedge aged about 36 years, which cannot be regarded as a capital development of land that cannot be compensated in money’s worth. In those circumstances the learned judge misdirected himself on the question of estoppel by acquiescence, and wrongly applied the cases he cited.
One other point deserves attention, when the appeal was before the High Court, the learned judge suo motu ordered a plan to be made showing the area in dispute, and appointed one Mr. Annim Ayeko, a licensed surveyor, to undertake the work. The said surveyor was not called to give evidence, and there is no record that the plan made in consequence of the said order was admitted in evidence. Neither counsel has a copy of that plan, and a copy of it was not before us at the time the appeal was argued, as the clerk in charge of exhibits was then not available to produce it to the court. There are no direction in the order for the plan for the parties and or their witnesses to attend the survey, and to point out to the surveyor any features on the land in support of their evidence.
We have now had the advantage of seeing the plan, exhibit Z. On the face of it, it was admitted in evidence by consent. It also shows that Wulomo Annang, the only witness who gave evidence on behalf of the defendant as eye witness to the grant made to the defendant, did not point out anything to the surveyor at the survey; and that the only persons who gave any information to the surveyor are: the defendant, the plaintiff, and the representatives of the church. The only new facts shown on that plan, exhibit Z, which are not contained in the record of proceedings and on the plan, exhibit B, are (i) that the ancient pillars were erected as far back as the year 1873; (ii) different colours were used showing the claims of the plaintiff, the defendant and the Presbyterian Church, and (iii) the asbestos sheets structure referred to by the local magistrate in his inspection report as under construction, is shown on exhibit Z as built about a year ago. Since the plan is dated 23 May 1961, the statement on it that the structure was built about a year ago, substantially corroborates the statement in the inspection report, that it was under construction in 1960 during the pendency of the case in the local court.
We would say that on the face of it the plan, exhibit Z, rather makes the case of the plaintiff stronger. The position of the ancient pillars relative to the one pillar erected in 1944 touching the defendant’s land, leaves no room for doubt that the defendant could not have made any mistake about the existence and direction of the ancient boundary of the church, marked red on exhibit Z, and that he crossed the same with full knowledge of its existence. There is nothing whatever on that plan, exhibit Z, which can possibly lend any weight to the defendant’s case. So that the plan, exhibit Z, is not of any evidential value for the defendant. Therefore the learned judge erred in attaching such great importance to it.
Again, in his evidence before the trial local court, Wulomo Annang, the only witness for the defendant who testified from his knowledge as to the grant made by the church to the defendant, gave no description and extent of the land he alleged was granted by the church to the defendant, to that extent his evidence is valueless. On the whole, therefore, the defendant was not able in any way to meet the strong case made by the plaintiff; the plaintiff’s case, therefore, stands unchallenged, and fully supports the well-considered judgment given by the local court.
On ground (iii) counsel for the plaintiff referred to the counterclaim of the defendant and pointed out that the only other relief claimed by the defendant by that writ in addition to his claim for declaration of title is
“injunction to restrain the defendant until final determination of the suit.” He submitted therefore that the learned judge of the High Court misdirected himself in the order he made as follows, “there is hereby granted an order for perpetual injunction as claimed in suit No. 252/60,” thereby granting to the defendant a relief which he did not in fact claim. In reply to that submission counsel for the defendant referred to regulation 93 of the Local Courts Procedure Regulations, 1959,8 which he said empowered a local court to make any order “which it considers necessary for doing justice whether such order has been asked for by the party entitled to the benefit of the order or not.” He therefore submitted that in the exercise of its appellate jurisdiction the High Court can make any order which a local court could have made.
Now it will be found that in making his submission counsel for the defendant overlooked the most important and operative words in the said regulation 93. The regulation reads:
“93. A Local Court may in its discretion make any order within its powers and jurisdiction which it considers necessary for doing justice whether such order has been asked for by the party entitled to the benefit of the order or not, . . .”
The operative words in that regulation are: “make any order within its powers and jurisdiction.” Therefore any order a local court may make must be shown to be “within its powers and jurisdiction” as conferred by the enactment creating the court. It will be noticed that the only enactment which gave a local court power and jurisdiction to make an order for injunction was regulation 167 of the Local Court Procedure Regulations, 1959 (supra); but that regulation limited the powers and jurisdiction of the local court to “interim injunction,” it did not give the local court jurisdiction to order perpetual injunction. It will also be noticed that the local court did, on 20 June 1960, grant the defendant the interim injunction he prayed for, and ordered “that the land in dispute must remain in possession of the opposer (defendant) till the
final determination of this case”; by that order the claim for interim injunction determined. The local court can now, by virtue of regulation 127 of the Local Courts Procedure Regulations, 1962,9 grant perpetual injunction.
Of course the High Court, as an appellate court, could in the exercise of the wide powers given to it by section 127 of the Courts Act, 1960,10 have made an order “which it shall consider just” in which case it could grant amendment to the writ to include a claim for perpetual injunction. But this it did not do, it assumed quite wrongly that the defendant had claimed perpetual injunction, when he had not, and when he had already obtained the relief for interim injunction which he prayed for.
In fine, therefore, none of the grounds upon which the High Court reversed the decision of the local court can be supported in fact or in law.
For these reasons the appeal is allowed, the judgment of the High Court is set aside including the order as to costs, any costs paid to be refunded, the judgment of the local court in favour of the plaintiff is restored.
The appellant will have his costs in the High Court assessed at £38 10s. 0d. and his costs in this court fixed at £62 4s. 9d.
Court below to carry out.
DECISION
Appeal allowed.
N. A. Y.
