ARMAH v. ADDOQUAYE [1972] 1 GLR 109
COURT OF APPEAL
Date: 17 MAY 1971
BEFORE: SIRIBOE, ANIN AND ARCHER JJ.A.
CASES REFERRED TO
(1) Thorp v. Holdsworth (1876) 3 Ch.D. 637; 45 L.J. Ch. 406.
(2) Brown v. Pearson (1882) 21 Ch.D 716.
(3) Okparaeke v Egbuonu (1941) 7 W.A.C.A. 53.
NATURE OF PROCEEDINGS
Appeal from a judgment of a circuit court dismissing the plaintiff’s action for inter alia declaration of title to land.
COUNSEL
Anancy for appellant.
Agbesi for the respondent.
JUDGMENT OF ANIN J.A.
Anin J.A. delivered the judgment of the court. The plaintiff-appellant (hereinafter called the plaintiff)
claimed title, an order for injunction and general damages for trespass in respect of a plot of land at
Lartebiokorshie, Zabon Zongo, Accra, more particularly described in his writ of summons. He claimed to have “bought this land from Emma and Helena Mills, the joint head of the Abloh Mills [family] the original owners under an indenture dated 26 March 1955 and registered in the Deeds Registry as No.2338 of 1955“ (vide paragraph (2) of the statement of claim) and then entered into possession and exercised acts of ownership over the land soon after purchasing it. He alleged that the defendant-respondent (hereinafter called the defendant) has since 1965 been committing acts of trespass over his said land, and has removed his pillars and blocks on the land and even erected a wall on the land. The defendant disputed the plaintiff’s claim, and asserted title to the identical land through a purchase from the Sempe Mantse in two lots under a first indenture dated 31 August 1964 which was registered in the Deeds Registry No. 371/1966, and a second indenture of 17 November 1964 which was still in the process of registration at the date of the action. He denied having committed any acts of trespass; and rather made [p.111] of [1972] 1 GLR 109 counter allegations of trespass over his land against the plaintiff. In his counterclaim, he claimed the sum of £G180 12s. 9d. being the value of his articles allegedly destroyed by the plaintiff on the land. After the testimony of both parties and their witnesses in support of their respective cases, the learned circuit judge dismissed the plaintiff’s claim and entered judgment for the defendant and awarded him the
full amount claimed in his counterclaim. The ratio decidendi of the judgment was that the plaintiff had failed to discharge the onus probandi incumbent on him.
In this appeal, learned counsel for the plaintiff has strongly criticised the judgment of the court below on a number of grounds, the gravamen of his argument being that the judgment is overwhelmingly against the weight of evidence. He drew our attention to the unchallenged evidence on record of the plaintiff’s root of title, traced to a gift of a larger tract of stool land embodying the disputed land, made by the James Town stool to the plaintiff’s vendors’ father and predecessor-in-title, one Joseph Ablorh Mills, who was himself an elder and a councillor of the stool in 1888. This customary gift was subsequently evidenced by a formal deed of conveyance (exhibit H) executed and registered in 1893. The late Ablorh Mills had been in continuous possession of the land from 1888 until his death in 1927, when the plaintiff’s vendor (Helena Mills) and her late sister, Emma Mills, who died in 1967, inherited it in their capacity as joint successors to their father’s estate. They later sold the land to the plaintiff in 1955 for the sum of £120, the transaction being evidenced by a dead of conveyance executed and registered in 1955 (exhibit A). Mr. Anancy stressed that the plaintiff’s root of title evidenced by exhibit H (original conveyance from the stool to Ablorh Mills) and exhibit A (deed of conveyance between the Mills sisters qua vendors and the plaintiff qua purchaser) stood un-contradicted. He further submitted that since there was no challenge to Ablorh Mills’ title, the plaintiff was relieved of the burden of calling additional evidence to prove his root of title. He next drew our attention to the surprising fact that paragraph (2) of the statement of claim
which recited the root of title, had not been traversed by the defendant in the statement of defense, and he submitted therefore that under Order 19, rr. 14 and 18 of the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N.140A), the averments contained in the paragraph must be deemed to be admitted by the defendant. Consequently, there was even no need for the plaintiff to have adduced any evidence in support of his title to the land. The learned circuit judge therefore erred in law and on the facts by holding that the plaintiff had failed to discharge the onus probandi upon him. With regard to the counterclaim, Mr. Anancy submitted that since the defendant was a trespasser on the land, he was not entitled to either the relief claimed or any other relief and it should be dismissed.
For the defendant, Mr. Agbesi contended that the learned circuit judge came to the right conclusion in his judgment that the plaintiff had failed to discharge the onus incumbent on him. He invited us to draw [p.112] of [1972] 1 GLR 109 from the conclusion reached, the inference that the learned circuit judge was not satisfied with either the quality or quantum of the evidence adduced by the plaintiff and his witnesses. On the criticism levelled at his pleading, Mr. Agbesi replied that though the statement of defense (which was settled by his client’s former solicitor), did not specifically deny the averments in the said paragraph (2) of the statement of claim, yet those averments must be deemed to have been denied by necessary implication, having regard
to the statement of defence as a whole. In our opinion, a point of fundamental importance in the rules of pleading is raised by this appeal, namely: Were the plaintiff’s material averments of root of title in paragraph (2) of his statement of claim denied in the statement of defence, or must they be taken to have been admitted? Order 19 of the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A), contains three important rules about traverses, and their common object is to compel each party in his turn to admit fully, or deny fully, each allegation of fact in the pleading of his opponent. Order 19, r. 14 reads: “Every allegation of fact in any pleading, not being a petition or summons, if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of the opposite party, shall be taken to be admitted, except as against an infant, lunatic, or person of unsound mind not so found by inquisition. ”Order 19, r. 18 reads:
“It shall not be sufficient for a defendant in his defense to deny generally the grounds alleged by the
statement of claim, or for a plaintiff in his reply to deny generally the grounds alleged in a defense by way of counterclaim but each party must deal specifically with each allegation of fact of which he does not admit the truth, except damages.” Order 19, r. 20 reads: “When a party in any pleading denies an allegation of fact in the previous pleading of the opposite party, he must do not so evasively, but answer the point of substance. Thus, if it be alleged that he received a certain
sum of money, it shall not be sufficient to deny that he received that particular sum of money, but he must deny that he received that sum or any part thereof, or else set out how much he received; and if an allegation is made with divers circumstances, it shall not be sufficient to deny it along with those circumstances. ”The Annual Practice 1962, p. 473 describes the main object of these rules as “to secure that each party in turn should fully admit or clearly deny every material allegation made against him, so that they may promptly arrive at an issue.” In Thorp v. Holdsworth (1876) 3 Ch.D. 637, where the defence merely alleged that “the terms of the arrangement were never definitely agreed upon as alleged,” it was held that such a traverse was an evasive denial within Order 19, r. 19 (the equivalent rule in our rules is [p.113] of [1972] 1 GLR 109 Order 19, r 20), and that it admitted an agreement was in fact made as alleged. Jessel M.R. made the following pertinent observation on the object of pleadings at pp. 639-641: “The whole object of pleadings is to bring the parties to an issue, and the meaning of the rules of [this Order] was to prevent the issue being enlarged, which would prevent either party from knowing when the cause came on for trial, what the real point to be discussed and decided was … [The defendant] is bound to deny that any agreement or any terms of arrangement were ever come to, if that is what he means; if he does not mean that, he should say that there were no terms of arrangement come to, except the following terms, and then state what those terms were.” Odgers in his work on Pleading and Practice (18th ed.) at p. 131 makes a similar point:
“It is in the power of the party either to admit or to deny each allegation in his opponent’s plea, as he thinks fit. If he decides to deny it, be must do so clearly and explicitly. Any equivocal or ambiguous phrase will be construed into an admission of it. There is no third or intermediary stage. If the judge does not find in the pleading a specific denial or a definite refusal to admit, there is an end of the matter; the fact stands admitted. ”Under Order 32, r. 6, it is permissible for any party at any stage to move for such judgment on admissions of facts made, either on pleadings, or otherwise, as upon such admissions he may be entitled to, without waiting for the determination of any other question between the parties. And it was held in Brown v. Pearson (1882) 21 Ch.D. 716, that a plaintiff may move for judgment on admissions in the defence, at any stage in the action and notwithstanding that he has jointed issue on the defence, and given notice of trial. It is therefore clear that if the solicitor for the defendant omits either through negligence or slovenly pleading to deny specifically any fact which he should on his instructions have denied, he is liable to incur the penalty of having judgment or any suitable order entered against his client on the facts deemed thereby to have been admitted.
In the instant case, paragraph (2) of the statement of claim contained important averments establishing the links in the plaintiff’s root of title. It reads: “(2) The plaintiff bought the said piece of land from Mesdames Emma Mills and Helena Mills joint head of the Ablorh Mills [family] the original owners by an indenture dated 26 March 1955 and registered in the Deeds Registry with the No. 2338/1955.” There was surprisingly, no traverse of either the whole or any part of these allegations in the statement of defence. The former solicitor for the defendant did not even bother to include a general traverse in the statement of defence. In the circumstances, since the defendant is neither an infant [p.114] of [1972] 1 GLR 109 nor a lunatic nor a person of unsound mind, under Order 19, r. 14, the various facts contained in the said paragraph (2) of the claim must be deemed to be admitted, and no further proof of them was required. Consequently, the fact that Ablorh Mills was the original owner of the land; that Emma and Helena Mills were the joint successors of Ablorh Mills (deceased) and successors-in-title; that the plaintiff bought the land from them; that the sale of the land to the plaintiff was evidenced by a deed of conveyance which had been duly registered — all these facts, were not denied specifically or by necessary implication. The plaintiff’s onus was therefore considerably lightened. Even though the plaintiff’s solicitor surprisingly omitted to draw the trial court’s attention to these points, yet the learned circuit judge who rightly referred
to the onus incumbent on a plaintiff seeking declaration of title ought to have borne the state of the pleadings and Order 19, rr 14, 18 and 20 in mind when considering whether or not the plaintiff had
discharged the onus probandi. For the reasons stated, we uphold the ground of appeal canvassed before us by Mr. Anancy that the trial judge misdirected himself on the issues arising from the pleadings. Pleadings apart, there was ample evidence in support of the plaintiff’s case. He traced his root of title through the vendors, the Mills sisters, successors-in-title to the original grantee, Joseph Ablorh Mills (their father) who received the grant from the James Town stool in 1888. Exhibit H, registered in 1893, was the conveyance from the stool to Ablorh Mills. The plaintiff’s second witness’s unchallenged evidence established that the land remained in the continuous occupation and possession of the Mills’ family from 1888 to 1955, when the plaintiff bought it for a consideration of £120. Exhibit A, the deed of conveyance, was promptly registered in 1955. However, since the defendant claimed title through the Sempe stool, it was vital for the plaintiff’s successor to prove conclusively that the land conveyed to him belonged to the James Town stool rather than the Sempe stool. Did he succeed in proving the original title of the James Town stool to the land in
dispute? In the first place, the plaintiff’s averment that the Mills’ family were the original owners stood uncontradicted. Secondly, the plaintiff called his vendor, Helena Mills, to testify in turn about the grant; the history of the land; and the accomplished facts of occupation and possession within recent memory. The material portion of her traditional history of the land was not challenged by the defendant’s key witness, J.A. Quaye, the Sempe linguist. For example, it was common ground that Ablorh Mills, father of Helena Mills was a councillor of the James Town stool. According to Helena Mills, the plaintiff’s second witness, the disputed land was conveyed to her father by
the James Town stool at a time when the James Town stool comprised the divisions of Alata, Akumajay, Sempe and Adansi, and prior to the installation of Kojo Ababio as James Town Manche. J.A. Quaye, the defendant’s second witness, admitted that James Town once consisted of Sempe, Akumajay and Alata. [p.115] of [1972] 1 GLR 109 The defendant’s second witness tendered in evidence the judgment of the Accra High Court dated 10 May 1963 and given by Acolatse, J, (as he then was) in the case of Nii Yao Duade Crabbe v. J. A. Quaye, (exhibit 10). It was incidentally admitted by both parties herein that the land dispute in this case formed part of the larger Lartebiokorshie which were being contested principally between the Alata and Sempe
stools in exhibit 10. The Sempe stool recently won the appeal in this court and was thus confirmed in its allodial title to the Lartebiokorshie lands delineated in the plan of that action marked exhibit D in the suit: See this court’s judgment in Civil Appeal No. 50/66 dated 31 July 1970. The traditional history of the land appeared clearly from the judgments both of Acolatse J. and of this court in that suit. It was accepted as established facts that the stools of James Town (or Alata) Sempe and Akumajay belonged to the same traditional area of James Town; that any area of James Town stool lands occupied exclusively or predominantly by the subjects or grantees of a particular sub-stool belongs to the sub-stool; that before Manche Ababio’s accession to the James Town stool, the sub-stools of Sempe, Akumajay and Alata were united and formed the composite stool of James Town, to which all lands owned originally by Sempe and Akumajay were entrusted; and it was this composite stool which exercised the right of alienation of portions of the land with the concurrence of the Sempes and Akumajays; and that it was during the reign of Manche Ababio that the final split occurred between the Sempes and Alatas. In the Court of Appeal judgment, it is stated that “a grant of some portion [of James Town stool land] was made to Ablorh Mills. According to Manche Ababio, this grant was made before he came on the stool. But it cannot be supposed that the James Town elders who made that grant before 1891 did so in violation of established customary norms.” Vide the last paragraph at p. 11 of the cyclostyled judgment of this court in Civil Appeal No. 50/66 dated 31 July 1970. It is therefore clear that the traditional history relied upon by the defendant’s own second witness even lent support to the title of the plaintiff’s vendors, whose grant was made by the composite James Town stool prior to Manche Ababio’s installation and between the Alata and Sempe stools. In the third place, the available evidence on record of accomplished facts of occupation and possession also supported the plaintiff’s case. Both parties admitted that one A. A. Allotey was the adjoining boundary owner on the southern boundary of the land in dispute. The evidence of the plaintiff’s second witness (Helena Mills) that she “sold land on the adjoining boundaries to their present owners” stood unchallenged. If the plaintiff’s second witness was the undisputed owner of lands adjoining the plot in dispute then it is reasonable to infer her title to the disputed land. Furthermore, it will be recalled that the occupation and possession of the land by the Mills family from 1888 to 1955 was never disturbed. In further evidence of her exercise of acts of ownership over land in the vicinity of the disputed plot, the plaintiff’s second witness tendered [p.116] of [1972] 1 GLR 109 exhibit F, being proceedings in a suit No. L. 179/1953 in the Accra Land Court between Kofi Akrasi, Alata Manche (as plaintiff) and the Roman Catholic Mission (as defendant) and the plaintiff ‘s second witness (as co-defendant). It is noteworthy that the plaintiff stool withdrew its claim to title to land granted by the plaintiff’s second witness to the defendant Catholic Mission, and leave was granted for the plaintiff to withdraw the suit with liberty: vide exhibit G dated 15 May 1962. It is also noteworthy that the Sempe (through whom the defendant now claims) were not a party to the suit in exhibits F and G. It is also of some significance that the deed of conveyance (exhibit H) executed in favour of the plaintiff’s predecessor was registered in 1893 about 70 years before the execution of the document (exhibit 1) relied on by the defendant. Thus, of the grants made the James Town stool to the plaintiff predecessor-in-title and by the Sempe stool to defendant, that of the plaintiff’s vendors would, being in time, take precedence over that of defendant’s vendors, if the grantors were the same. Finally, it must be pointed out that in this suit the parties were ad idem about the identity of the land in dispute; and there was therefore, no need for the plaintiff to prove boundaries claimed strictly: see Okparaeke v. Egbuonu (1941) 7 W.A.C.A. 53 at p. 55. To sum up, we are satisfied that the judgment of the court below was against the weight of evidence which was overwhelmingly in favour of the plaintiff’s case. This is not a case where the trial judge made positive findings of fact in favour of one party and there is evidence to support those findings. On the contrary, the learned circuit judge dismissed the plaintiff’s claim for the stated reason that he had failed to discharge the onus which lies on him. After an evaluation of the evidence, we disagree that the plaintiff failed to discharge the burden incumbent on him. His root of title was not challenged; his vendors’ acts of
ownership and occupation were likewise uncontradicted; the traditional history of the land recounted briefly by the plaintiff’s vendor the plaintiff’s second witness, was amply corroborated by dicta in the relevant judgment (exhibit 10) tendered by a witness for the defendant (the defendant’s second witness); and the plaintiff’s title deeds were not impugned.
For the above reasons, we allow the appeal, set aside the judgment and order as to costs of the court
below. Costs in the court below to be taxed. If the costs have been paid, they must be refunded to the
plaintiff. The defendant’s counterclaim is also dismissed. On the defendant’s own showing he has
forcibly entered the land in dispute, erected a wall thereon, and interfered with the plaintiff’s possession. Judgment is hereby entered in favour of the plaintiff on his claim in its entirety. The plaintiff is entitled to damages for trespass against the defendant which we fix at N¢100.00. The plaintiff will have his costs in this court assessed at N¢128.90.
