SUPREME COURT, ACCRA
DATE: 19TH FEBRUARY, 1962
BEFORE: VAN LARE, SARKODEE-ADOO AND CRABBE, JJ.S.C.
NATURE OF PROCEEDINGS
APPEAL from a judgment of Acolatse J. delivered in the High Court, Cape Coast on the 21st December, 1957, dismissing an action by the plaintiff for recovery of possession of and ejectment from certain land. The appeal which was remitted to the Supreme Court by the judgment of the Privy Council delivered on the 31st May, 1961 (reported at [1961] G.L.R. 291) had first been heard by the Court of Appeal on the 13th June, 1960 (reported at [1960] G.L.R. 171) when it was dismissed on a procedural point, the Court of Appeal holding that notice of appeal had been given outside the statutory period prescribed for appealing against the judgment of the trial judge.
COUNSEL
K. Bentsi-Enchill with him A. W. Acquaah for the appellant.
Hayfron-Benjamin for the respondent.
JUDGMENT OF VAN LARE J.S.C.
This is the second time this appeal has come before this court. On the earlier occasion the court dismissed the appeal on a purely procedural point on the 13th June, 1960, being of the opinion that the appeal was not timeous because notice of appeal had been given well out of the statutory period within which to appeal from the original judgment delivered by the trial judge, who nevertheless later delivered a ruling upon a review following an application made to him, when he allowed the motion to review, but in the end, after having re-opened the case in part decreed as follows: “The review is dismissed”. The notice of appeal was well within the appealable period reckoning from the date of the judge’s ruling upon the review when he confirmed his original judgment. On appeal to the Judicial Committee of the Privy Council, it has been held that when a case is reheard on review, the order of the rehearing is a new decree and the time for appealing runs from the date of the order
[p.106] of [1962] 1 GLR 104
and therefore the appeal was brought timeously. The appeal was therefore by the judgment delivered on the 31st May, 1961, remitted by the Judicial Committee of the Privy Council to this court for hearing.
The case concerns a piece of land called Agissu and is part of a larger area called Ekwambassie in the Saltpond district. There have been several litigations concerning this land and it is common ground that there are also three other parcels of land on the larger Ekwambassie area concerned in the various litigations. The respondent does not deny that Agissu land belongs to the appellant but says that the present claim which appellant has now made in trespass for recovery of possession and ejectment against him is in respect of an area which does not only include Agissu land, but also the three other parcels of land called Nanado, Abberzaboasie and Abiswa, which the appellant admits to be the properties of the respondent.
The appellant issued a summons for the reliefs mentioned in the Native Court “B” of Ayan-Na-Breman Confederacy on the 14th October, 1948, but the case was transferred to the Land Court and heard before Acolatse, J., at Cape Coast where he delivered judgment on the 21st December, 1957, and at Accra where he gave his ruling upon a re-hearing on review on the 31st October, 1959, confirming his judgment dismissing the appellant’s claim. In his statement of claim the appellant relied on a judgment of the Privy Council in 1929 in a litigation between a caretaker on behalf of the present appellant and a predecessor of the present respondent in regard to the right to collect tolls from Agissu land. Although title to Agissu land was in issue and the Board decided in favour of the present appellant’s caretaker, then a respondent who had not counterclaimed, there was no declaration of title in the present appellant’s favour. However the appellant erroneously assumed that the 1929 litigation decreed title in her favour in respect of Agissu land, and the respondent although conceding the appellant’s ownership to Agissu land, in his defence denied that he was occupying Agissu land, and pleaded that the land which he in fact occupied consisted of the three other parcels of land, namely Nanado, Abberzaboasie and Abiswa. The plan which was prepared by the surveyor for the trial of the case at the instance of the appellant, in fact shows the area claimed to include the three other areas, but the whole of this piece of land the appellant calls Agissu land, whereas according to the respondent Agissu land does not include his three parcels of land. A dispute was thus disclosed as to the exact boundaries of Agissu land, property of the appellant and the location of the three other parcels of land i.e. Nanado, Abberzaboasie and Abiswa, which according to the evidence the appellant’s predecessor had sold to the respondent’s predecessor.
As the appellant claims that her land known as Agissu extends to and includes what the respondent calls Nanado, Abberzaboasie and Abiswa, the onus was on her to establish her title or right to possession to the whole area claimed by her, and it was not the duty of the respondent who was defending to establish that the areas of land admitted to be his were included in the area subject-matter of the dispute.
In establishing her claim before the trial court, the appellant produced the Privy Council judgment of 1929 on which alone she relied, alleging that she was invested with the ownership and that the respondent was estopped from claiming ownership of Agissu land; no attempt was made by her to establish that the whole of the area she now claims is Agissu
[p.107] of [1962] 1 GLR 104
land. The Privy Council judgment on which she relied gives no definite boundaries of Agissu land and it is not possible to demarcate Agissu land with any degree of certainty particularly with reference to its southern boundary so as to ascertain whether that land which was the subject of litigation in 1929 did or did not include the three other parcels of land known as Nanado, Abberzaboasie and Abiswa. The learned trial judge at the conclusion of the case expressed the opinion that the claims of the appellant in the action could not be maintained upon the evidence before him, and he accordingly dismissed the appellant’s claim, as he put it, “in respect of the three parcels of land claimed by the plaintiff”. If the case had so ended it would have been all right.
It however appears to me that in allowing the application to review his judgment, the trial judge was influened by the facts deposed to in the accompanying affidavits in support of the application and was satisfied that the trial had missed the real issue involved and he therefore ordered as follows: “After hearing argument from both sides it is evident that the issue involved herein is the physical identity and situation of the Agissu land of which the plaintiff is the owner and the three plots of land admitted and as belonging to defendant. I accordingly order as follows that the boundaries of the defendant’s three plots of land, Nanado, Abberzaboasie and Abiswa as described at page 21 of the Record of Proceedings, exhibit D and the boundaries of Agissu land as described in exhibit C at page 61 of exhibit D be severally delineated on a plan to be prepared by the surveyors, Selby and T. F. Mensah, both of Cape Coast.”
The application for the review was grounded on facts alleging that at the commencement of the trial the impression left upon the parties by the court was that the trial was mainly concerned with the interpretation of the 1929 Privy Council judgment exhibit B, and that accounted for the appellant’s failure to discharge the onus of proving her title and identity of Agissu land by not calling her available witnesses who were adjoining land owners and also for not tendering certain documentary evidence in proof of her contention that the other three parcels of land Nanado, Abberzaboasie and Abiswa were to be found outside and not included in the area claimed by her. One would have thought that in such circumstances upon the case being re-heard on review full opportunity could be given to the appellant to prove her title to the whole of the land claimed by her and to establish that the other three pieces were outside the area claimed. The judge on the re-hearing, however, concerned himself only with the surveyor’s evidence which did not appear to be of much assistance. They said it was difficult to demarcate the area claimed by the parties by the particulars and descriptions given in the order quoted above. Certain documents alleged to be evidence in proof of the allegation that the three lands of Nanado, Abberzaboasie and Abiswa were elsewhere than as claimed by the respondent, were refused to be tendered. The surveyors appointed to assist the re-hearing did not sufficiently travel south in order to ascertain whether or not the three other parcels of land could be found because according to them it would mean going through somebody’s land to get there. There was also the question of fact to be determined whether the Agissu land which was the subject-matter in the Privy Council judgment in 1929 was the same in extent or covered the same area as the area now claimed by the appellant. In my opinion these are vital issues which still remain undecided but must be decided if this protracted litigation must reach a final conclusion.
[p.108] of [1962] 1 GLR 104
It is true that the appellant had not discharged the onus of proving title to the whole of the area claimed by her but she appears to have failed to do so under an erroneous impression in the first instance, and did not have the full opportunity of doing so upon the re-hearing on review. There is no doubt that a plaintiff suing for recovery of possession had a duty to establish title or right to possession before he can succeed in his claim. In this claim the plaintiff-appellant’s right to possession to Agissu land had been admitted, but there appears to have existed some confusion as to the issue for determination in respect of the particularities of the lands involved. In the circumstances
I think both the judgment delivered on the 21st day of December, 1957, and the ruling of the 31st day of October, 1959 must not be allowed to stand and I would therefore set them both aside in the interest of justice so as to accord full opportunity to settle this old dispute between the parties and remit the case to the court below, that is the High Court, Cape Coast, to be re-heard in whole by another judge.
I think however that although the result of this appeal appears to be in favour of the appellant, nevertheless considering the peculiar surrounding circumstances I would make no order as to the costs in this court, and would also not interfere with the order as to costs made against the plaintiff-appellant in favour of the defendant-respondent by the court below, and would direct that the re-hearing in whole as ordered in this judgment be subject to the payment of the costs as awarded by the court below. To this extent I would allow the appeal.
DECISION
Appeal allowed.
Case to be re-heard in whole.
