Division: IN THE SUPREME COURT
Date: 22 JUNE 1964
Before: SARKODEE-ADOO CJ, MILLS-ODOI AND AKAINYAH JJSC
JUDGMENT OF SARKODEE-ADDO CJ
This appeal is in respect of a piece or parcel of land known and called Amanta. The respondent as the plaintiff in this case by his statement of claim pleaded thus: [His lordship here read the statement of claim, the defence and the reply as summarised in the headnote and continued:]
The claim in the 1937 case of which exhibit C is the judgment is in the manner following:
“Plaintiff claims from defendant the sum of £50 being damages for trespass in violation of the oath sworn on defendant five years ago to wit: Encroaching on plaintiff’s pieces or parcels of land situated and lying at Abotumtum, Akwakom, Akum and Tokuroano whereby as a result of such trespass, the plaintiff’s subjects have been circumscribed or deprived from extending their food farms.”
The operative conclusions of the judgment dated 16 September 1937 (exhibit C) are as follows:
“Now therefore, after considering all the evidence which we have heard, and considering what is the most probable explanation of the conflicting claims, it is our opinion that Adoji, and not Akwakom, is the boundary between Dapaa and Dodo.
Furthermore, we are convinced that it was the plain intention of this court, when giving judgment on 20 September 1930 that Adoji should be recognised and accepted as a boundary between the lands of Dapaa and Dodo, and not merely as a mark to restrict the sale of land: and moreover we are satisfied that the line which was cut from Adoji to Deduase was cut by the order of this court in execution of that same judgment, and intended to be the boundary between Dapaa and Dodo. And lastly, we are of the opinion that, quite apart from the possible undesirability of upsetting a judgment which was given by this court seven years ago, and from which no attempt has been made to appeal, the plaintiffs in this case have shown no good reason why that judgment should be changed.
We now therefore give judgment in favour of the defendants herein, and define the boundary between Dapaa and Dodo in accordance with their statement to be from Abotumtum to Adoji to Deduase, to Tokuroano; this judgment being without prejudice to any but the two present parties to this case. And we order that the costs of this case be borne by the plaintiffs.”
It should be observed that although the 1937 action was in damages for an alleged trespass, the native authority court proceeded to hear and determine the limits of the respective areas claimed by the Dapaas and Dodos. The defendants did not counterclaim in that action and as had been quoted supra, judgment was given in favour of the defendants (who are also the defendants in the action from which this appeal has been brought) and further proceeded to define the boundary between them. In the instant action the respondent purporting to follow the alleged defined boundary has with the active participation of the appellant re-introduced and re-litigated the indentical issues in the former action in 1937.
The first witness for the respondent, Okyeame Emmanuel Kwadjo, the linguist for the Dapaa stool who was authorised to represent the Dapaa stool and to give evidence for and on behalf of the said stool in the course of his evidence, said:
“The boundaries of the Dapaa stool land are as follows: On the north—it forms boundary with Breniase stool land from a point known as Abotumtum stretching north-west where the boundary line meets the Asukorkor river. On the west, the boundary continues with the Breniase stool land from that meeting point with the Asukorkor, and along the course of that river Asukorkor up to a point known as Dapaa Nkwanta. That is the point where the boundary between Dapaa stool and Breniase stool ends. From Dapaa Nkwanta, and along the course of Asukorkor up to Tokuroano the Dapaa stool land forms boundary by the Asukorkor river—with
the Kuma stool lands. On the south the Dapaa stool land forms boundary with the Ahamansu stool land. On the east the Dapaa stool land forms boundary with Pampawie stool land. The Dapaa stool land is really called Amanta land.”
Referring to the judgment of 1937 (exhibit C) he said:
“Judgment was delivered in favour of the defendant the Dodo people, but the court declared that certain features should constitute the boundary between the Dapaa stool and the Dodo stool. The features mentioned in that judgment were Abotumtum and Adoji and Deduase and Tokuroano.”
Subsequent to this action there was some efforts to demarcate the boundary but without success and the said linguist relates the incidents in the course of his evidence as follows: [His lordship here read the evidence of the linguist as to the subsequent attempt of demarcating the boundary line between the parties and continued:]
It clearly emerges from the surveyor’s evidence that whereas the parties were ad idem as to the features indicating their northern and sourthern boundaries, namely, “Abotumtum” and “Tokuroano” they were entirely in absolute disagreement as to the situation of the “Adoji” and the “Deduase” as indicated in exhibit C.
The learned trial judge in the introductory phase of his judgment observed as follows:
“For the trial of the action, a survey was ordered and a plan duly prepared and admitted as exhibit A. On the said plan the boundary line claimed by the plaintiff to be with his original boundary owners—so far as concerns the disputed land—is indicated in pink colour. The boundary line from Abotumtum to Adoji to Deduase to Tokuroano which the plaintiff claims to be the subject of the declaratory judgment of the Krachi Native Court of 1937—upon which he relies—is shown on plan by a cut line a little within his western original boundary formed by the Asukorkor river. The boundary line claimed by the defendant—so far as concerns the disputed area—is indicated in green colour. The boundary line from Abotumtum to Adoji to Deduase to Tokuroano which the defendant claims to be the subject of the said declaratory judgment of 1937—and upon which he also relies—is shown on plan running southwards along the green line from Abotumtum to Adoji to Deduase, and thence due west to Tokuroano—which as can be seen—is different from that indicated by the plaintiff. On the plan, the Dapaa town can be seen to the east of the disputed area, and the Dodo town to the west of the disputed area. The real issues therefore raised are as to: (a) ownership of or title to the intermediate area of land shown between the said two disputed boundary lines declared by the judgment of the Krachi Native Court of 16 September 1937, and (b) which of the two competing boundary lines claimed by the parties is the correct one as declared by the said judgment.”
Clearly, with respect, the learned trial judge, in the light of the record of the proceedings took a wrong and unwarranted view of the issues involved in the action before him. It is difficult if not impossible on the face of this naked conflict in the instant suit to determine a claim in damages for trespass to a portion of land the boundary of which has not been definitely defined.
The learned trial judge in his attempt with respect to surmount this obvious difficulty dealt with these two features in his judgment as follows:
“The Adoji claimed by the plaintiff—is shown on plan as a stream towards the west of the disputed land which flows into the Asukorkor river. According to the evidence of the surveyor, the defendant who was at the survey did not dispute that this stream was called Adoji, and did not call it by any other name. The other Adoji—claimed by the defendant is shown on plan towards the east of the disputed land—as a tributary to Pawo stream. According to the evidence of the surveyor, the plaintiff called it Kpawo Abakam, and it is so indicated on the plan. Evidence was adduced on behalf of the plaintiff that the Abakam referred to is a collection of water with an outlet flow of about twenty-four feet into the Pawo stream. The next feature which I consider important is Deduase. This feature claimed by plaintiff as indicated on
plan exhibit A is towards the west of the disputed land situated almost midway between the Adoji pointed by plaintiff and Tokuroano. The evidence of the surveyor is to the effect that some Dedua trees (rubber trees) were found at that spot and they are so indicated on the plan. Evidence was adduced on behalf of the plaintiff that people used to tap rubber there and slept there, hence the spot was so called. The position of this Deduase claimed by the defendant as indicated on exhibit A is at the south-east corner of the disputed land—some distance south of the Adoji pointed by the defendant. The evidence of the surveyor in respect of this feature is to the effect that there was not a single Dedua tree found there, nor did he find any feature there at all. In fact the plan does not mark out any Dedua tree at that spot, nor was the surveyor cross-examined on that point, and I am unable now to accept the afterthought evidence of the defendant that there does exist at that spot two or three Dedua trees. The feature which is most important still is that of Tokuroano. There is no dispute by the parties as to the position of this feature; in fact it is admitted by them on the pleadings and on the evidence that the boundary between the two stools reaches there and ends there. Now if the boundary line is to run from Abotumtum to Adoji to Deduase and to Tokuroano as pointed out and claimed by the plaintiff, the plan shows that there will certainly be land to the left and right of this boundary line from Abotumtum to Tokuroano and at Tokuroano, and in my view that would appear to be consistent with the judgment in exhibit C. On the other hand, if the boundary line is to run from Abotumtum to Adoji to Deduase and to Tokuroano as pointed out and claimed by the defendant, the plan shows that that boundary line must stop the plaintiff’s land at Deduase, because from that point (i.e. Deduase) to Tokuroano—according to exhibit A—the boundary line is shown to run between the land of the defendant’s stool and that of either the Ahamansu stool or the Papase stool. If the boundary line therefore as claimed by the defendant is accepted, it must make nonsense of the judgment contained in exhibit C because on the defendant’s showing, there cannot be a boundary between the defendant’s stool land and that of the plaintiff ‘s stool at Tokuroano. This is the point and the crucial point indeed which counsel for the defendant was unable to get over and that is why I feel bound to reject the feature claimed by the defendant and to conclude and uphold that the true boundary line must run along the features Abotumtum and Adoji and Deduase to Tokuroano as pointed out and claimed by plaintiff, but not necessarily along the cut line pointed out by plaintiff as shown on plan.”
In exhibit C, the boundary line was not declared and until declared an action for trespass cannot be maintained; and indeed, the subject-matter of the action being in the air, no injunction could be granted thereon. I am satisfied from the record of the proceedings that satisfactory evidence has not been given to determine the real controversy between the parties, and this must be necessarily resolved. In my considered opinion, therefore, I am satisfied in the circumstances that, although it is in the interest of the state and all concerned that litigation should be brought to an end, the justice of this case will be met by nonsuiting the respondent with liberty to bring any other action if so advised.
In the result, I would allow the appeal and set aside the judgment from which the appeal has been brought together with the order as to costs. In lieu thereof I would substitute a non-suit with liberty to bring any other action if so advised; and in my view, all consequential orders made under and by virtue of the said judgment should also be set aside and vacated and all moneys paid to the respondent or withdrawn from the court below and the local court at Jasikan by the respondent should be refunded to the appellant; and all costs and damages if paid should also be refunded.
I would give the appellant his costs in this court fixed at £G120 4s. 9d. and in the court below to be taxed with counsel’s costs allowed at 200 guineas.
JUDGEMENT OF MILLS-ODOI JSC
This appeal is against the decision of the High Court, Ho, dated 17 July 1962 whereby judgment was delivered for the plaintiff-respondent (hereinafter referred to as the respondent) for a declaration of title to the piece or parcel of land claimed by him on his writ, £G150 damages for trespass, and perpetual injunction restraining the defendant-appellant (hereinafter referred to as the appellant) his agents and servants from committing trespass on the said land.
The respondent in his capacity as ohene of Dapaa brought an action against the appellant claiming for himself and on behalf of the stool of Dapaa:
“a declaration for all that piece or parcel of land known and called Amanta, situate lying and being at Dapaa bounded towards the south by Ahamansu stool land, towards the east Pampawie stool land and towards the west from Abotumtum to Sarekeseso and across the Adoji stream to Onyina Kese and from there to Deduase and then to Tokuroano.”
In the statement filed on behalf of the respondent the following material averments were made:
“(3) The plaintiff’s stool has been in lawful and peaceful occupation of the land herein from time immemorial.
(4) The defendant’s ancestors originally migrated from the then French Territory of Togoland with permission and licence settled with the plaintiff’s ancestors and with the ancestors of the neighbouring stools, of Breniase and Kunda.
(5) The defendant is now wrongfully claiming portions of the plaintiff ‘s stool land as their property and have been selling portions of the said land.”
By his statement of defence, the appellant denied the respondent’s title and claimed to be owner in possession of the land described by the respondent in his writ. He then made the following averments which are material to this appeal:
“(4) The defendant says that in 1937 the stool of Dapaa sued the stool of Dodo in the Krachi Native Authority Court for declaration of title to land described as follows: from Abotumtum to Akwakom, Akum and Tokuroano. Judgment was in favour of the stool of Dodo confirming the boundary between the two stools as follows: from Abotumtum to Adoji to Deduase to Tokuroano. The plaintiff stool did not appeal against this judgment dated 16 September 1937.
(5) The defendant says that the land in dispute is the same as the land which was disputed in 1937, and the defendant will contend that the present suit is res judicata, and the plaintiff is thereby estopped from bringing this present action.”
In his reply to the appellant’s statement of defence the respondent admitted the fact that his stool brought an action against the appellant’s stool in the Krachi Native Authority Court in 1937, and lost the action; but he pleaded that the present action “is based on the declaratory judgment of the Krachiwura dated 16 September 1937.” He however denied that the present suit is res judicata, his contention being that that judgment merely defined the boundary between his stool and that of the defendant as starting from Abotumtum to Adoji to Deduase and to Tokuroano; but “the defendant has failed or refused to accept the boundary as defined and has trespassed on the plaintiff’s land.”
It is abundantly clear that the averments made by respondent in his reply to the appellant’s statement of defence constitute a complete departure from the facts he had previously pleaded in his statement of claim. It is therefore difficult to surmise, at this stage, whether the respondent was claiming declaration of title to the “Amanta” land with Sarekeseso, Adoji stream and Onyina Kese as forming the western boundary, or, whether, as categorically pleaded by him in his reply that the present action is based on the 1937 judgment, his claim was limited to the features mentioned in that judgment with Adoji and Deduase as forming the western boundary between them. There is nothing on the face of the record to show, at any
stage of the pleadings, that the respondent amended his claim, which, as it stood, was entirely different from his reply; and this he is forbidden to do in view of the provisions of the Supreme [High] Court (Civil Procedure) Rules, 1954,1 Order 19, r. 17, that: “No pleading, . . . shall, except by way of amendment, raise any new ground of claim or contain any allegation of fact inconsistent with the previous pleadings of the party pleading the same.”
It is necessary that the pleadings in order not to be embarrassing to the defendant, should state facts which will put the defendant on his guard and tell him what he has to meet at the trial.
However, in due course the parties agreed upon and the learned judge accepted the following as the issues for trial:
“(1) Whether or not the land in dispute herein belongs to the plaintiff’s stool, or, whether or not the said land belongs to the defendant.
(2) Whether or not the claim in this suit is res judicata.
(3) Whether or not the defendant’s ancestors were the original settlers on the land in dispute.”
In respect of the first issue, it is to be observed that the stool of Dodo, the appellant’s stool, had not counterclaimed for ownership, so that strictly speaking the real issue for trial was whether the land in dispute belongs to, or is owned by, the respondent’s stool or not. The question which has to be resolved at this stage is, what was the area of “land in dispute” to which the respondent’s claim relates and in respect of which the court was called upon to make an order for a declaration of title? Did it relate to that piece or parcel of land called Amanta, or, is it in respect of the land referred to by the respondent in the 1937 judgment of the Krachi Native Authority Court? In order to be certain as to the indentity of the land in dispute, a surveyor was appointed by an order of the trial court who went on the land with both parties and later tendered in evidence a plan, exhibit A, showing the extent of the land pointed to him by the
respondent in respect of which he sought the declaration of title. It is edged pink. The area pointed by the appellant to him as owned by the appellant’s stool is edged green and the land in dispute is edged green-pink.
It is obvious, on the face of exhibit A, that in this action the respondent purports to claim a declaration of title to the whole land south of Breniase stool lands, i.e. the land south of the line edged pink, from Abotumtum on the north-west and stretching in a north-westerly direction to a point where the line meets the Asukorkor river on the west, thus regarding the Asukorkor river as forming the western boundary between both parties. Shortly put, the respondent is laying claim to the whole of Amanta or Dapaa stool land. And this is confirmed by the evidence of the respondent’s first witness, Okyeame Emmanuel Kwadjo, linguist for the respondent’s stool, who stated clearly that the lands south of the Breniase stool land referred to supra, in respect of which a declaration of title is sought by the respondent, and which is edged green-pink as the land in dispute, is known and called “Amanta” or “Dapaa stool lands.” His evidence contained the following material passage:
“I know the land the subject-matter in dispute. I also know the whole of Dapaa stool land. The boundaries of Dapaa stool land are as follows: On the north—it forms boundary with the Breniase stool land from a point known as Abotumtum stretching north-west where the boundary line meets the Asukorkor river. On the west, the boundary continues with the Breniase stool land from that meeting point with the Asukorkor, and along the course of that river Asukorkor up to a point known as Dapaa Nkwanta. That is the point where the boundary between Dapaa stool and Breniase stool ends. From Dapaa Nkwanta, and along the course of
Asukorkor river up to Tokuroano, the Dapaa stool land forms boundary by the Asukorkor river—with the Kuma stool lands. On the south, the Dapaa stool land forms boundary with the Ahamansu stool land. On the east the Dapaa stool land forms boundary with Pampawie stool land. The Dapaa stool land is really called manta land.”
Continuing his evidence the linguist further stated:
“Later on, some of the Dodo people crossed the Asukorkor river and entered into the Dapaa stool land and they started selling portions of Dapaa stool land to the strangers who had come there. As a result of those acts, the Dapaa stool brought an action against the Dodohene by name Yaw Sabewie … Judgment was delivered in favour of the defendant the Dodo people but the court declared that certain features should constitute the boundary between the Dapaa stool and the Dodo stool. The features mentioned in that judgment were Abotumtum and Adoji and Deduase and Tokuroano.”
According to exhibit C the western boundary between the two stools is marked by the features “Adoji and Deduase.” The respondent’s stool did not appeal against that judgment; the respondent is therefore precluded from re-opening the matter all over again by asserting a claim for a declaration of title to lands lying west of the features Adoji and Deduase. He is estopped by exhibit C from regarding the Asukorkor river as forming the western boundary between his stool and that of the appellant.
On the other hand, if the respondent limits his claim to the features referred to in exhibit C as relating to the area of the land in dispute, an area ostensibly smaller in size than that edged green-pink by the surveyor in exhibit A, he would be asking the court to make an order for a declaration of title to land the description and extent of which materially differs from those set out in his writ. By that writ, as already stated supra, the respondent sought declaration of title to “Amanta” land, “situate lying and being at Dapaa bounded towards the west from Abotumtum to Sarekeseso and across the Adoji stream to Onyina Kese and from there to
Deduase and then to Tokuroano.” It is apparent on the face of exhibit A that “Sarekeseso,” a feature referred to supra in the writ as forming the western boundary from Abotumtum, is situated very close to the Asukorkor river and is completely outside the features set out in the declaratory judgment—exhibit C. Whichever way the respondent’s claim is looked at, it is obvious that the respondent has failed to identify the extent of the area of the land in respect of which his action is brought. He is also estopped from laying any claim to lands lying west of the features “Adoji and Deduase.”
It is trite law that in a claim for a declaration of title, or damages for trespass, the evidence led by the plaintiff must be of a standard and quality giving sufficient particulars of the identity and extent of the area of the land in respect of which the action is brought. The evidence of identity should be such that the defendant must know exactly what land he is defending and the court must be certain of the exact area and extent of land any order it makes might affect.
In his judgment, which is the subject of criticism in this court, the learned judge gave judgment for the respondent “for a declaration of title to the land claimed by him on his writ, the boundary to the west of which shall be along the features claimed by him and shown on plan, that is to say from Abotumtum to Adoji to Deduase and to Tokuroano, but such boundary should run in a straight line.” In my opinion the learned judge was wrong in giving judgment for the respondent. The area of land claimed by the respondent on his writ extends towards the west from Abotumtum to Sarekeseso and across the Adoji stream to Onyina Kese, an area wider than the extent of the area of land in respect of which the learned judge, without justification, purported to grant declaration of title to the respondent. It is obvious that the
learned judge rejected the case put forward by the respondent that “Sarekeseso,” the “Adoji stream” and “Onyina Kese” form the western boundary between the two stools. Differently put, the respondent’s description of the boundary between his stool and that of the defendant was not accepted by the trial judge. It follows that the respondent has failed to show to the court, clearly and unequivocally, the area of the land in respect of which his action was brought.
In the case of Baruwa v. Ogunshola2 the following principle was enunciated, “it is the first duty of a plaintiff who comes to Court to claim a declaration of title to show the Court clearly the area of land to which his claim relates.” The respondent was unable to establish conclusively the area of the land to which his claim relates; he has therefore failed to discharge his first duty and the proper order which the learned judge should have made was to have dismissed his claim and to have given judgment for the appellants—see Kodilinye v. Odu3 and Ababio v. Darkwa.4
In view of the decision I have arrived at, I do not consider it necessary to expatiate at length on the issue, “whether or not the defendant’s ancestors were the original settlers on the land in dispute.” The matter can be quickly disposed of by saying that as the onus was on the respondent to show the court the area of land in respect of which his claim for declaration to title relates (and he must succeed on the strength of his own case), and since be has failed to discharge that duty, it is difficult, if not impossible to identify the land upon which the appellants are alleged to have settled.
In the result, I would allow the appeal and it is hereby allowed. The judgment of the trial court is set aside and there will be judgment for the appellant with costs.
JUDGMENT OF AKAINYAH JSC
I read the judgment of my lord the Chief Justice and agreed with him that the appeal should be allowed but expressed the view in a draft judgment that rather than entering a non-suit, the respondent’s claim should be dismissed and judgment be entered for the appellant. I showed the said draft judgment and that of the Chief Justice to my brother Mills-Odoi for his perusal and comments. A few days later, he showed me the judgment which he has just read. Although he embodied therein, some of the points raised by me and came to the same conclusion that the appeal should be allowed and judgment be entered for the appellant, my brother Mills-Odoi did not consider it necessary to deal with other aspects of the case. For that reason, I wish to deal with the matter a bit more exhaustively. I do not think that in doing so, I am infringing any judicial precedent. In the superior courts in England, it is a common practice for the judges
to write separate judgments in certain cases even though, in the final analysis, the result is the same.
The history of this litigation is that, the respondent and the appellant are neighbouring chiefs and occupying adjoining lands attached to their respective stools. During the year 1937, the respondent’s predecessor instituted an action against the appellant’s predecessor in the erstwhile Krachi Native Authority Court and claimed as follows:
“Plaintiff claims from defendant the sum of £G50 being damages for trespass in violation of the oath sworn on defendant five years ago to wit: Encroaching on plaintiff’s pieces or parcels of land situated and lying at Abotumtum, Akwakom, Akum and Tokuroano whereby as a result of such trespass, the plaintiff’s subjects have been circumscribed or deprived from extending their food farms.”
In his evidence in support of that action, the respondent’s predecessor said inter alia:
“The defendant was not known at all on the land by our great grand fathers and I am claiming lands as from Abotumtum to Akwakom, Akum and Tokuroano all the lands east of Abotumtum. Our land is bounded as follows: In the north from Abotumtum (all the land north of Abotumtum to Asukorkor belongs to Breniase). From Abotumtum to a point on the Dapaa-Dodo road where the stream Akwakom crosses that road a little to the west of the path called Suntwinikesie, and west of Abotansi. From Akwakom stream to a point where the Akum stream joins Kantanka river. We claim all land east of this line. From Akum-Kantanka junction, along
the Kantanka river towards Asukorkor river as far as an unmarked spot in Akum and then in a south westerly direction to a place in Tokuroano lands somewhere west of Dodo Papase Road; thence in a southerly direction running between the Dodo Papase road and the river Asukorkor. We claim all the land south and on the east of this line.”
The appellant’s predecessor did not counterclaim for a declaration of title but made the following averments:
“We do not admit the claim of the plaintiff and we will show that: Abotansi, our ancient settlement, is included in the land claimed by the plaintiff. And that where we were at Abotansi and the Dapaa were being at Amanta, our boundary mark was Adoji. And that when we left Abotansi and were at Awurontia and the Dapaas had left Amanta and gone to Pampawie our boundary was Abotumtum. And that Dodo people have been living on the land claimed for 13 to 14 years and that Dodohene made a village at Akwamu about 22 years ago. And that in previous litigation over this boundary the Dapaas have never mentioned that Akwakom was part of their boundary. And that when Mr. Spooner was recently making his district boundary
we only had boundary with Kwasi Nyako west of Deduase and finally that our boundary goes from Abotumtum to Adoji, to Deduase and thence to Tokuroano.”
On 16 September 1937 the said Krachi Native Authority Court gave judgment for the appellant and defined the boundary between Dapaa and Dodo to be from Abotumtum to Adoji to Deduase to Tokuroano. This judgment was tendered in evidence by the respondent herein and marked exhibit C in these proceedings. It establishes the incontrovertible fact that in the 1937 action, the Krachi Native Authority Court accepted the boundary shown by the appellant’s predecessor and rejected the respondent’s predecessor’s case.
The respondent’s said predecessor did not appeal against the said judgment. Twenty years later (i.e., in 1957) the respondents herein sued the appellant herein in the Buem Krachi Native Court A which had then taken the place of the abolished Krachi Native Authority Court for a declaration of title to the same piece or parcel of land, this time, described as follows:
“(1) The plaintiff’s claim against the defendant is declaration, possession, occupation and title to ownership of all that piece or parcel of land with cocoa trees or farms, palm trees, coffee trees and odum trees thereon, with virgin forest, situate, lying and being at a place commonly known and called ‘Amanta’ land being Dapaa, bounded on the north by the stool land of Breniase, on the east by river Asukorkor and on the south by Papase stool land on which land defendant did unlawfully commit trespass and gave plaintiff ‘s said stool land to tenants who cultivated some into cocoa farms, coffee plantations, uprooting palm trees, felling Odum trees and some was shared into ‘Abusa’ system (tripartite) with such tenants and defendant without the knowledge and consent of plaintiff who is the rightful owner of the land which is repugnant to natural justice, equity and custom.
(2) Plaintiff further claims from the defendant £G100 (hundred pounds) compensatory damages as to why defendant did cut and demarcate a surveyed line through the middle of plaintiff’s said ‘Amanta’ stool land and fixed some pillars on such line without the knowledge and consent of plaintiff.”
During the pendency of the said action, the said Buem Krachi Native Court A was itself abolished and the suit came before the Buem Krachi Local Court. As the new local court was not clothed with the necessary jurisdiction, the respondent was compelled by the changes brought about by operation of law to withdraw the said suit, which he did.
In the year 1961, the respondent instituted the action herein against the appellant and claimed as follows:
“(a) A declaration of title to all that piece or parcel of land known and called Amanta, situate, lying and being at Dapaa bounded towards the north by Breniase stool land, towards the south by Ahamasu stool land, towards the east by Pampawie stool land towards the west from Abotumtum to Sarekeseso and across the Adoji stream to Onyina Kese and from there to Deduase and then to Tokuroano.
(b) £G200 damages.
(c) Perpetual injunction to restrain the defendant his servants or agents from entering upon the plaintiff’s land.”
The relative statement of claim is as follows:
“(1) The plaintiff is the ohene of Dapaa and brings this action for and on behalf of the stool of Dapaa; the defendant is the ohene of Dodo.
(2) The land described in the writ of summons is the land of the plaintiff ‘s stool.
(3) The plaintiff’s stool has been in lawful and peaceful occupation of the land herein from time immemorial.
(4) The defendant’s ancestors originally migrated from the then French Territory of Togoland with permission and hence settled with the plaintiff’s ancestors and with the ancestors of the neighbouring stools of Beniase and Kunda.
(5) The defendants are now wrongfully claiming portions of the plaintiff ‘s stool land as their property and have been selling portions of the said land.”
On the face of the writ and the statement of claim, it looks as though, the respondent’s claim relates to some land other than the land—the subject-matter of the 1937 action; but in his statement of defence, the appellant pleaded that the suit is res judicata, in that, the land claimed by the respondent is the same piece or parcel of land over which they litigated in the 1937 action which ended in his favour. The appellant again did not counter-claim but, averred that he was the owner in possession of the said land and pleaded that the respondent is estopped by the said 1937 judgment from re-litigating the issue of title.
By his reply the respondent admitted the facts and the judgment pleaded by the appellant but denied that the suit herein was res judicata. He then averred that his claim is based on the said 1937 judgment. As far as I understand that reply, the respondent who sued for a declaration of title to a large tract of land known and called “Amanta” which forms boundary with the lands of the stools of Breniase, Ahamasu and Pampawie and from Abotumtum to Sarekeseso to Onyina Kese now says his claim related only to a piece of land from Abotumtum to Adoji to Deduase to Tokuroano.
It is obvious that the respondent realised at that early stage, that with the said judgment of 1937 staring him in the face, he could not succeed on his claim to the vast area of land and decided therefore, to depart from his previous averments contained in his statement of claim and to rely on the boundary as defined in the said judgment. This, he could do, if he amended his claim, but there is nothing on the record showing that the respondent ever amended his claim, which as it stood, was clearly inconsistent with his reply.
Order 19, r. 17 of the Supreme [High] Court (Civil Procedure) Rules, 1954, provides that:
“No pleading, not being a petition or summons, shall, except by way of amendment, raise any new ground of claim or contain any allegation of fact inconsistent with the previous pleadings of the party pleading the same.”
In spite of the apparent change of the nature of the claim from one of a declaration of title to “Amanta” land to one for demarcation of the boundary as defined in the 1937 judgment, the respondent evinced a clear intention to abandon the plea that the action was based on the said 1937 judgment because, in settling the issues for trial, he again put in issue the question of title to the land as follows:
“(1) Whether or not the land in dispute herein belongs to the plaintiff’s stool, or whether or not the said land belongs to the defendant.
(2) Whether or not the claim in this suit is res judicata.
(3) Whether or not the defendant’s ancestors were the original settlers on the land in dispute.”
In respect of the third issue, I think, it is pertinent to quote a portion of the 1937 judgment; because it disposes of it in no uncertain terms:
“One more point with regard to the tradition. The plaintiff has continually laid stress on the statement that the Dodos are strangers who settled on the plaintiff’s land. Pawia the elder has now pointed out, and we all agree, that, if this statement were true, then it is most unlikely that the Dapaas would have sworn an oath before the attempted demarcation of the boundary saying that, even if the boundary were cut to very town of Dapaa they would accept it and let Dodo have the land. We may expect oaths like that in disputes between brothers: not between strangers. Out OF ALL this diversity of evidence, only two points stand out as undisputed, and worthy of acceptance without hesitation; first, that Abutansi was the ancient settlement of
the Dodos; and second, that Abotumtum has always been a boundary of Dapaa land from the earliest times. The evidence of each side shows that Abotumtum has hitherto been and is now, recognised as the boundary between Dapaa and Dodo land, and, throughout all the changes of the different settlements, this place appears always to have remained an undisputed boundary.”
In my view, the respondent placed himself in a dilemma. If his case is taken as a claim for a declaration of title to “Amanta” land then it is his duty to show the court clearly the extent of the land which he claims. In Baruwa v. Ogunshola (Supra) it was held that: “it is the first duty of a plaintiff who comes to Court to claim a declaration of title to show the Court clearly the area of land to which his claim relates.”5
In that case, the plaintiff claimed (as the plaintiff herein claims) a declaration of title against four defendants. The first two resisted the claim but the last two did not. The claim against all was dismissed by the trial court. On appeal, the West African Court of Appeal said6:
“. . . we think that the learned trial Judge exercised a proper discretion in dismissing the claim rather than in entering a non-suit. . . . As regards the third and fourth defendants, since they have never disputed the plaintiff’s claim, we think that the proper Order would have been one of non-suit rather than dismissal.”
In the instant case, the appellant resisted the claim and averred that he was in possession. The
respondent’s endeavour to show the area of the land to which his claim related came to naught when the trial judge found as a fact, and quite rightly too, that his land did not extend to Sarekeseso. Having failed to discharge his first duty, namely, to show clearly the area of the land to which his claim related, the respondent’s claim should have been dismissed.
Upon a careful perusal of the record, there is ample evidence that the appellant was in possession of the land west of the boundary defined in the 1937 judgment and was still in possession at the time of the trial of the action. In the course of his evidence the appellant said inter alia:
“I made some of the farms on the land about 40 years ago. Apart from the farms on the north, I have others on the west towards Tokuroano. I am the only Kwaku Bissah at Dodo. The farms there were made about 35 years ago. Other Dodo citizens who have farms on the land are Kweku Addai and several others. Some of the purchasers of land in the disputed area: Tafo Kudame, Joe Nanstu, Atipoe, Mensa Fori, Kpakpovi.”
That piece of evidence was not challenged by the respondent. The only relevant question put to him was this: “Do you not admit that this litigation started as a result of Atipoe being placed on the land that brought about this litigation which originated in the native court?” to which the defendant answered, “No it is not so.” The evidence clearly establishes the fact that the defendant was not only in possession by himself and his stool subjects but had been exercising acts of ownership by alienating portions of the said land to strangers.
In the 1937 judgment, the Krachi Native Authority Court said among other things that:
“One year later, the Krachiwura himself in the company of the district commissioner and Adontenhene, Kwasi Doba, Bruwie, and Kyeame Kwame Wusu visited the Dodo-Dapaa area, re-opened the case and on 29 April 1937 gave judgment in favour of Dodo, confirming the boundary from Adoji to Deduase and demarcating the remaining line from Adoji to Abotumtum . . . Again, we believe it to be true that certain of the Dapaa farmers, whose land was left on the Dodo side of the Adoji-Deduase line, did pay tribute to Dodo as is contended by the defendant.”
In my view, that finding indicates that, the Dapaas did not own the land on the Dodo side of the
Adoji-Deduase line.
It is true that the appellant’s predecessor did not counterclaim for a declaration of title in the 1937 action, therefore, that judgment cannot, operate as estoppel per rem judicatam against the whole world; but as between the same parties and their privies, it is my view that it estops either of them from re-opening the matter.
In Ohene Ababio v. Ohene Kanga,7 Deane C.J. said:
“. . . the first requisite in a case of this kind is to be clear about our terminology. Estoppel per rem judicatam is the rule that a final decision of a Court of competent jurisdiction once pronounced between parties cannot be contradicted by any one of such parties as against any other of such parties in any subsequent litigation between them respecting the same subject matter.”
I hold, therefore, that the plea of res judicata was applicable and that the learned trial judge was wrong in holding that it did not apply.
On the other hand, if the plaintiff’s action is based on the 1937 judgment, and is essentially a claim for demarcation of the boundary between the two stools of Dapaa and Dodo as was defined by the Krachi Native Authority Court, then the learned trial judge erred in law by giving judgment for the plaintiff: “for a declaration of title to the land claimed by him on his writ, the boundary to the west of which shall be along the features claimed by him and shown on plan that is to say from Abotumtum to Adoji to Deduase and to Tokuroano, but such boundary to run in a straight line.” This is because he himself rejected the boundary line cut and pointed by the plaintiff.
In the course of the judgment, the learned judge continued:
“It is my view that since the native court had declared the boundary line between the parties it had decided that the plaintiff ‘s stool was entitled to the land to the cast of the dividing line and since the defendant knew and ought to have known the dividing line as declared in exhibit C and occupied any portion of the disputed land, the action in trespass against him is maintainable. In this regard therefore I am of the view that the cases cited by counsel for the defendant cannot apply nor can the plea of res judicata. On these conclusions, I hold that the features Abotumtum to Adoji to Deduase to Tokuroano which according to exhibit C should constitute the boundary between the plaintiff ‘s land and the defendant’s land are those pointed out and claimed by the plaintiff and shown on the plan to the west of the disputed land, but since Sarekeseso was not also a feature mentioned in exhibit C I find that the dividing boundary line from Abotumtum to a point on the Adoji stream thence still in a straight line to Deduase and thence also in a straight line to Tokuroano.”
In my view, the learned judge rather begged the question. The dividing line is the bone of contention between the parties. They knew the boundary on paper but they did not agree on its exact location on the ground. Mr. Hagan, the surveyor, admitted that he saw concrete pillars marked KNA 6/37 along the boundary line shown by the defendant from Abotumtum to Deduase, a pillar at Adoji, and a government survey pillar marked KNA 6/37/20 but there were no pillars at all on the line cut and pointed by the plaintiff from Abotumtum to Tokruoano.
A judge is entitled to draw inference and come to a just conclusion upon proved facts but he is certainly not allowed to guess or speculate. I hold that it was not competent for the trial judge to hold, as he did, that the boundary line must run in a straight line when the respondent himself said it runs towards Sarekeseso. His plain duty was to decide which of the two lines shown by the parties was in accord with the boundary defined by the Krachi Native Authority Court in 1937. He was entitled to accept one and reject the other. If he felt unable to resolve the conflict and could not therefore accept either of the two conflicting stories then the plaintiff who is seeking relief must fail, because he has failed to discharge the onus of proof which was upon him.
In Awooner Renner v. Annan Deane C.J. said8:
“A trespass to land is an entry upon land or any direct and immediate interference with the possession of land. The comprehensive way of describing a trespass is to say that the defendant broke and entered the plaintiffs’ close and did damage, and it follows that in order to maintain an action for trespass the plaintiff must have a present possessory title—an owner of land who is legally entitled to possession not being competent to maintain an action for trespass before entry (Wallis v. Hands, 1893, 2 Ch. 75). Where indeed both parties are in a field claiming possession the possession being disputed, trespass will be at the suit of that one who can show that the title is in him.”
To succeed in his claim for damages for trespass the respondent must show that title to the land claimed is in him. This, he failed to do, because he was unable to point out the dividing line therefore he cannot maintain an action in trespass against the appellant who disputes his possession.
In his judgment the learned trial judge said also:
“The real issues therefore are as to:
(a) Ownership of or title to the intermediate area of land shown between the said two disputed boundary lines declared by the judgment of the Krachi Native Court of the 16 September 1937, and
(b) which of the two competing boundary lines claimed by the parties is the correct one as declared by the said judgment.”
I do not think that it is necessary for me to consider the alleged issues settled unilaterally by the trial judge and considered by him. In Madjoub v. Nkansah II,9 it was held that when issues are settled, as they were in this case under Order 24, r. 1 (now Order 19, r. 4) they must contain all material questions in controversy between the parties. A court cannot consider other material questions outside the settled issues.
It follows, therefore, that the issues before the court for determination were those set out in the summons for direction and agreed upon by the parties. That being so, the plaintiffs case was simply one for declaration of title. It is a recognised principle in land cases and it does not admit of any argument that the plaintiff when claiming a declaration of title must succeed on the strength of his case. Cobblah v. Gbeke,10 and Kodilinye v. Odu (supra).
In Ohene Ababio v. Ohene Kanga cited earlier in this judgment, Deane C.J. said11:
“. . . the admitted fact that the Kickam people were first on the land, coupled with the evidence that they have been and still are in possession, raises a strong presumption in their favour as being owners of the Agona lands. The plaintiff’s evidence is not sufficient, in my view, to rebut that presumption. I do not think, therefore, that this is a case which should be sent back for a new trial.”
In the instant case, the admitted fact that the appellant’s people were on the land prior to the 1937 action coupled with the evidence that they have been and still are in possession of the area claimed by the defendant as the boundary between this land and that of the respondent’s stool raise a strong presumption in their favour as being owners of that portion of the land in dispute. The trial judge found as a fact that the respondent’s evidence in respect of the boundary could not be true therefore, in my view, the respondent failed to rebut that presumption. I do not think that it is right for the respondent to be given another opportunity to sue again and point another boundary line.
In Renner v. Fanti Consolidated Mines Ltd.12 it was held that where there is a state of uncertainty as to boundaries possession is the only safe guide. I think the law is well established that the appeal court is not debarred from coming to its own conclusion on the facts where a judgment has been appealed from on the grounds of the weight of evidence. The appeal court can make its own mind on the evidence not disregarding the judgment appealed from but carefully weighing and considering it and not shrinking from overruling it if on full consideration it comes to the conclusion that the judgment is wrong.
After careful consideration of the evidence, I have come to the conclusion that there is ample evidence to support the boundary line shown by the appellant and marked on the plan exhibit A. Counsel for the respondent has seriously submitted that the boundary line pointed out by the appellant makes nonsense of the 1937 judgment. I am not impressed by that submission because, the respondent must succeed on the strength of his own case and not on the weakness of the defence. The boundary line cut and shown by the respondent from Abotumtum to Sarekeseso equally makes nonsense of the 1937 judgment and was properly rejected by the trial judge.
In my view, the parties having fought the battle, not only on the issue of ownership, but also as to the location of the boundary line, the respondent cannot, at some future date, properly commence an action for demarcation of the boundary because he could have led all his available evidence in respect of the boundary in the suit herein. If a plaintiff, without adequate reason given, fails to take the opportunity to put his case fully to the court, he will not be allowed to commence the suit all over again: see Assachere v. Dadiase13.
In the result I would allow the appeal. The judgment of the court bellow is set aside and there will be judgment for the appellant with costs.
DECISION
Appeal allowed.
S.A.B.
