HIGH COURT, CAPE COAST
Date: 2 JULY 1974
EDWARD WIREDU J
CASES REFERRED TO
(1) Adai v. Anane [1973] 1 G.L.R. 144.
(2) Asare v. Donkor and Serwah II [1962] 2 G.L.R. 176, S.C.
(3) R. v. Dogbe (1947) 12 W.A.C.A. 184.
(4) Boohene v. Ofei [1959] G.L.R. 101.
(5) Gblevi Family v. Amanie (Practice Note) [1961] G.L.R. 1, C.A.
(6) Kwami and Kofi v. Adzonu (Practice Note) [1961] G.L.R. 1, C.A.
(7) Anto v. Mensah (1957) 3 W.A.L.R. 218, C.A.
(8) Badoo v. Ampung (1949) 12 W.A.C.A. 439.
(9) Aworo v. Buor [1962] 2 G.L.R. 128, S.C.
(10) Nwizuk v. Eneyok (1953) 14 W.A.C.A. 354.
(11) Bimmah v. Brobbey, High Court, 13 December 1965, unreported; digested in (1966) C.C. 131.
(12) Barko v. Mustapha [1964] G.L.R. 78, S.C.
(13) Nanevie v. Agboyibor [1963] 1 G.L.R. 440, S.C.
(14) Nsowah v. Wusu-Ansah, Supreme Court, 21 May 1962, unreported.
NATURE OF PROCEEDINGS
APPEAL by the plaintiff against the judgment of a district court wherein the plaintiff s action for damages for trespass was dismissed and judgment entered for the defendant on her counterclaim for a declaration of title to an area abutting the common boundary of the parties’ lands. The facts are fully set out in the judgment.
COUNSEL
T. D. Brodie-Mends for the appellant.
Respondent in person.
JUDGMENT OF EDWARD WIREDU J
This is an appeal from the decision of the District Court Grade II, Dunkwa, dated 4 August 1972. That decision dismissed a trespass action by the plaintiff-appellant (hereafter referred to as the plaintiff) against the defendant-respondent (hereafter referred to as the defendant) and upheld a counterclaim by the defendant who was awarded 0100 damages against the plaintiff.
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A brief history of this case reveals that the parties to this suit are adjoining boundary owners. They both farm at a place called Nyamebekyere II on the Buabin stool land. The plaintiff acquired her portion of the land in her own right whilst the defendant has succeeded to her portion through her deceased mother. The evidence shows that both the plaintiff and the deceased mother of the defendant acquired their respective lands during the reign of Nana Bugyei an ex-Buabinhene. The controversy between them is about the exact location of their boundary line and even though the plaintiff s claim is worded in the form of a declaration of title the real issue between the parties as revealed by the evidence adduced is the usual boundary dispute between two adjoining boundary owners. The plaintiff did not put the whole of her land into dispute and neither did the defendant. It is clear from the record of proceedings that the trial magistrate very well appreciated this, and after collecting evidence from the parties and their witnesses and admitting a surveyed plan showing the respective farms of the parties in relation to the disputed area, he visited the locus in quo and acquainted himself with the situation on the land itself. His findings show that he was impressed with the evidence and the features testified to by the defendant as forming the boundary between her mother’s land and that of the plaintiff after visiting the locus in quo. He therefore expressed his satisfaction with the case brought by and on behalf of the defendant and preferred same as against that brought by and on behalf of the plaintiff. He therefore dismissed the plaintiff s claim and entered judgment for the defendant on her counterclaim.
It is from this decision that the present appeal has been brought to this court originally on one main ground, namely, that the judgment of the district court grade II is against the weight of evidence. On 21 May 1974, five more additional grounds were filed on behalf of the plaintiff and these read as follows:
“(1) Whereas the plaintiff gave evidence as to the boundaries of her land and established her ownership of the area in dispute as required by law, the defendant who counterclaimed, and was therefore as much a plaintiff as the appellant herein, did not even give evidence of the boundaries of her land, nor could she explain the presence of the plaintiff’s old cocoa farm in the area marked B on the plan even though the defendant claimed ownership to the whole area marked green on the plan containing the three farms A, B and C.
(2) The magistrate’s evaluation of the evidence of the plaintiff and her witness was perverse, as contrasted with that of the defendant and her only witness (the defendant’s own sister).
(3) The magistrate erred in law in placing the onus of proof solely on the plaintiff, whereas, as a defendant who had counterclaimed, the defendant-respondent had, in law, the same onus of proof imposed on her.
(4) The magistrate erred in law when he held that the plaintiff’s original acquisition of her property was ineffective because she did not go for it with a relative of hers.
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(5) Even though the inspection of the locus in quo was against the law, the magistrate allowed himself to be influenced by it in giving his judgment.”
Grounds (1) to (3) of the additional grounds and the original ground of appeal, which seems to make a similar complaint, were argued together under the first three additional grounds together. The arguments submitted on these grounds as I understood from the submissions of learned counsel for the plaintiff were an attack on the magistrate’s appreciation of the onus of proof in this case. It was submitted that it was wrong for the trial magistrate to have called upon the plaintiff to succeed on the strength of her own case without extending the same standard of proof to the defendant who was as much a plaintiff in respect of her counterclaim to the disputed area. Learned counsel submitted that the plaintiff called her vendor in the person of the present Buabinhene as her second witness to establish her root of title; she also called her first witness as the person who demarcated the land for her. She was supported by her first witness that it was he who demarcated the land for the defendant’s mother also. Counsel described both the first and second witnesses of the plaintiff as the only independent witnesses who testified in this case and wondered what better evidence the plaintiff could have produced to entitle her to succeed on her claim. He referred to the case for the defence and argued that apart from the defendant the only other witness who testified on her behalf was her own sister, she did not call her vendor. Founding himself on the case of Adai v. Anane [1973] 1 G.L.R. 144 at p. 149, he contended that it was wrong for the trial magistrate to have found for the defendant whose only witness was a relation of hers. Counsel further contended that on the authority of Asare v. Donkor and Serwah II [1962] 2 G.L.R. 176, S.C. the evidence of the plaintiff s first witness should not have been rejected since the evidence shows that he was a common demarcator of the respective lands of the parties. Counsel therefore contended that the case presented by the defendant for which judgment went in her favour fell short of the standard required of a party claiming title and should have failed for failing to call her vendor.
On ground (4) of the additional grounds learned counsel for the plaintiff attacked finding (3) at p. 35 of the record of proceedings and cited Ollennu’s Principles of Customary Land Law in Ghana and Bentsi Enchill’s Ghana Land Law to show what constituted a proper alienation of land under customary law and attacked the said finding as not having the support of the law. The next submission which was argued on behalf of the plaintiff with some force was based on ground (5) of the additional grounds. On this ground Mr. Brodie-Mends for the plaintiff made a forceful complaint that the procedure adopted by the trial court in regard to the visit to the locus in quo led the trial magistrate to place emphasis upon his findings there which was not justified by the evidence and that the failure to comply with the recommended practice as laid down in R. v. Dogbe (1947) 12 W.A.C.A. 184 vitiated the whole proceedings. Learned
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counsel also referred to the case of Boohene v. Ofei [1959] G.L.R. 101, and argued further that there was nothing to show on the face of the record that the parties were present at the locus in quo with their witnesses. He therefore contended that all this was contrary to law and vitiated the proceedings.
The defendant was not represented at the hearing of the appeal but appeared in person and her reply was partly a reiteration of her version of the case as testified in the court below and partly a reply to the attack by counsel on the visit to the locus in quo. She submitted that after taking evidence from the parties and their witnesses about their boundary features and admitting the plan in evidence the court visited the locus with the parties and their witnesses where they pointed out the various features forming the boundary between their respective lands and that it was after this that judgment was later given in her favour.
A careful and critical examination of the facts of this case reveals that the plaintiff s complaint which brought the parties to court was that the defendant had trespassed upon her land. She admits that her land is contiguous to that of the defendant’s predecessor (now in possession of the defendant) but contended that the defendant had crossed their common boundary and entered on her portion of the land. This clearly shows that the plaintiff did not put the title of her whole land into issue nor did she dispute the defendant’s title to the area which she admitted to be beyond the line she alleged to be the boundary between their two lands. The true issue was thus as to ownership, not of either the plaintiff s whole land or that of the defendant but of the area of land in the immediate vicinity of the alleged boundary line and the most effective way of resolving this issue was to find out the whereabouts of their common boundary. In this regard the evidence of a vendor or grantor of the land is not always necessary especially if all that was required of him was to establish merely the root of title and especially in the instant case where both parties have a common grantor who was called by one of the parties. This is especially so as the parties to this suit do not deny having lands abutting each other so that the type of evidence needed in this case is the evidence of eye-witnesses who can testify to the extent of forest land acquired by the parties. The present case as I see it is contrary to the general pattern where although the form of their claim was that of a declaration of title the true content of the claim was otherwise. It was therefore not fatal to the defendant’s claim that she did not call her vendor to prove her root of title as was contended by learned counsel for the appellant. It was also not fatal even if the plaintiff had not called her second witness on the particular facts of this case. The submissions therefore founded on this fails as a ground for impeaching the judgment appealed from. The question which falls to be decided is whether the trial magistrate did appreciate the real issue in controversy between the parties, whether he was able to resolve same one way or other and finally whether there is evidence to support his findings.
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As I have stated earlier in this judgment the trial magistrate did properly appreciate that, i.e. what the issue in this case called for a determination was the exact location of the common boundary between the parties and to find out on whose side the disputed area fell. The plaintiff s first witness testified that she demarcated the plaintiff s land for her and that of the defendant’s predecessor. The defendant joined issue with her firstly disputing that the plaintiff s first witness was permitted to allocate lands in the vicinity of the disputed area and contended that one Yaw Yeboah was the one who demarcated her mother’s land for her in the company of one Nkrumah, in her presence and that of her sister, the defendant’s first witness. The plaintiff s first witness also asserted that he demarcated the land for the defendant’s mother and that the defendant and her witness were not present. He said he went to see Nana Bugyei, the ex-Buabinhene, with the defendant’s mother unaccompanied by anyone else. All these issues are issues of fact depending on the credibility of the witnesses. The undisputed evidence shows that both Yeboah and Nkrumah are dead, so that the only eye witnesses to the demarcation as far as the defence was concerned, alive and capable of testifying as to the extent of the land acquired by her mother were herself and her sister who testified as the defendant’s first witness. This witness corroborated the defendant’s version of the story in all material details including the boundary features. Two rival stories were thus put up by the parties as to what features divide their two lands. The issue as to which of the rival stories was true is one of fact and this was resolved in favour of the defendant after collecting the necessary evidence and after the visit to the locus in quo. The trial magistrate appeared impressed by the evidence brought by and on behalf of the defendant and preferred same against that brought by and on behalf of the plaintiff. His finding is amply supported by the evidence on record. Nowhere in the judgment did he refer to any special onus on the plaintiff to succeed on the strength of her own case because he properly directed himself as to the real issue in controversy between the parties and resolved same. The evidence of the plaintiff as supported by the plaintiff s first witness that it was the plaintiff s first witness who demarcated the land for the defendant’s mother was rejected as untrue and so was the plaintiff s first witness’s unsupported evidence that he took the defendant’s mother to see the ex-Buabinhene (who though alive was not called). These findings based on the credibility of witnesses are primarily and principally a matter for the trial court. It is not permissible for an appeal court to differ from a trial court as to credibility, save for very good reasons, which must be set out in the appeal court’s judgment: see Boohene v. Ofei [1959] G.L.R. 101. The trial magistrate further found, rightly in my view, that the evidence of the plaintiff s second witness did not advance the case for the plaintiff because the plaintiff s second witness according to him was not on the stool at the time of the acquisition by either the plaintiff or the defendant’s mother so as to be seised with the knowledge as to who demarcated the land for the defendant’s mother or whether she went and acquired the land alone or not. I therefore reject as untenable the argument founded on Adai’s case (supra) against the
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testimony of the defendant’s first witness merely because of her relationship with the defendant. To say that the evidence of such a vital eye-witness to the demarcation especially in the instant case when all the other eyewitnesses to the demarcation are dead, should not carry any weight with the court under the peculiar circumstances of this case is not only to make it impossible for the defendant to make out her case but also to deny her justice.
I doubt whether Adai’s case cited by learned counsel for the plaintiff laid down any such general principle of law that it is incompetent to prove a fact in issue by calling a relation. If it did then it is respectfully submitted that it is a dangerous principle and should be rejected because the position of each witness must be determined on its own peculiar facts. Nothing has been successfully urged on behalf of the plaintiff that the trial court’s findings are wrong. There being ample evidence to support the finding by the trial court as to use and occupation of the disputed area by the defendant’s predecessor I have no alternative but to confirm the same.
Ground (4) was certainly misconceived as the trial magistrate did not attack the plaintiff s root of title in paragraph (3) of his findings at p. 35 of the record of proceedings as was contended by learned counsel. This ground therefore also fails.
This brings me to the most controversial point raised in this appeal and that is the submission founded on the procedure at the locus. I will however dismiss off hand the allegation that there appeared nothing on the face of the record that the parties accompanied the court when the court visited the locus. There is enough material in the record of proceedings to indicate that the parties and their witnesses must have been present because counsel for the plaintiff is recorded as having waived his request for a copy of the court’s report on the visit and if the visit to the locus was without the parties an objection would have been raised in the court below. The report on the visit which has been nutshelled as part of the judgment contains detailed materials and information which could not have come from any person other than the parties as was contended by the defendant. The more serious complaint made against the decision appealed from was the attack on the procedure at the locus in quo. Since the establishment of the erstwhile local courts in place of the old native courts, both of which were mainly manned by untrained lawyers as magistrates, different methods of procedure have been adopted by different magistrates in this regard and these methods have often been the objects of attack in appellate courts so that the need was felt more than before to recommend a practice direction in order to streamline and bring in uniformity in the procedure to be followed by these courts whenever the need arose that a view of the land in dispute be made.
Some of the notable cases which dealt with the matter are the cases of Gblevi Family v. Amanie (Practice Note) [1961] G.L.R. 1, C.A., Kwami and Kofi v. Adzonu (Practice Note) [1961] G.L.R. 1, C.A., Boohene v. Ofei [1959] G.L.R. 101 and Anto v. Mensah (1957) 3 W.A.L.R. 218, C.A. Then there was the earlier case of Badoo v. Ampung (1949) 12 W.A.C.A. 439
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which was discussed in some of the cases referred to above. The practice and procedure approved and recommended to be followed, however, do not seem to be uniform on the authorities as they stand now. In the Gblevi Family case (supra) the Court of Appeal laid down the following as the practice and procedure at pp. 1-2:
“The court should be accompanied by the parties and any relevant witnesses to the inspection. The parties or the witnesses there point out such places and things which are material to the case, etc. If certain other persons, who may assist the court in arriving at a decision in the matter are found on the land but who have not given evidence in court, are heard, those other persons should be asked to appear before the court when it re-assembles.
Then when the court re-assembles all the persons who were used at the view must be put into the witness box, and on oath state what part they took in the recent visit to the locus and what each did.
The parties, that is the plaintiff and the defendant are to be given an opportunity of cross-examining those witnesses who after the inspection are called by the court itself, and at that stage must be deemed to be witnesses called at the instance of the court.”
The earlier case of Badoo v. Ampung (1949) 12 W.A.C.A. 439 seems to conflict with the Gblevi Family case (supra) when it laid down at p. 440 that:
“A view of the locus in quo by Judge and jury is a common feature of trial by jury but it is not the practice to record anything more than the fact that there had been a view. In the absence of any native law and custom to the contrary I see no reason therefore why Native Courts should be required to go further in this regard than the Supreme Court.”
See further the cases of Aworo v. Buor [1962] 2 G.L.R. 128 at p. 129, S.C. and Nwizuk v. Eneyok (1953) 14 W.A.C.A. 354. In the case of Anto v. Mensah (supra) the Court of Appeal followed the case of Badoo v. Ampung quoted above. Then in the High Court case of Boohene v. Ofei (supra) the Ampung case was followed but the practice whereby members of the court mounted the witness-box to give evidence and be cross-examined on the inspection was considered improper and condemned: see Adzonu’s case (supra).
In the High Court case of Bimmah v. Brobbey, High Court, 13 December 1965, unreported; digested in (1966) C.C. 131, Baidoo J. attempted to reconcile the apparent conflicting decisions on inspection of the locus in quo. But it is doubtful whether he succeeded in doing this. He used the case of Barko v. Mustapha [1964] G.L.R. 78, S.C. and Nanevie v. Agboyibor [1963] 1 G.L.R. 440, S.C. in his attempt to explain away the apparent conflicts in the Gblevie Family case (supra) on the one hand and the Ampung case on the other hand. In the course of the judgment, Baidoo J., referring to the two former cases above, had this to say:
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“It is clear from these two cases that if during the inspection of the locus in quo persons who were no parties or witnesses in the case intervene and give the court some information material to the issues before the court then it becomes imperative that these extra persons be put in the witness box to repeat on oath what they stated and to be cross-examined by the parties before their evidence can be used or relied on to give judgment, otherwise what was stated at the locus is no evidence before the court to be used or discussed or relied on in the judgment. Also if at some stage of the inspection the parties themselves give some further information on their case not already stated in their evidence on oath to the court, e.g. if new objects like a dilapidated building or an old abandoned farm, or any object on the land which helps to prove the case, are pointed out, it becomes imperative that the parties be placed back in the witness box when the court resumes sitting for the extra information given at the locus to be stated on oath and to be cross-examined upon, otherwise the extra information given at the locus cannot be used by the court to give judgment because it is only the evidence given or tendered on oath before the court in course of the trial which can be considered by the trial court in arriving at its judgment.”
It is not clear from the above how the apparent conflict in the Gblevi Family case on the one hand and the Ampung case on the other hand was successfully shown to be non-existent. For the former emphatically stresses the need to call all witnesses used at the locus to testify on oath and be cross-examined as to what part each played there, whilst the latter held that it was not a necessary part of the procedure to record anything beyond the fact that there had been a view.
The situation becomes even more confused when Baidoo J. rejected the appellant counsel’s attack on the accuracy of the findings of fact made during the inspection at the locus which were not reduced into evidence by relying on the authority of Nsowah v. Wusu-Ansah, Supreme Court, 21 May 1962, unreported, where the Supreme Court observed:
“This court has often held that where a trial court after an inspection makes findings of fact such findings must be taken as a correct account of what took place at the inspection and therefore final: see the judgment of this court in Akua Abene v. Kojo Sunkwa, Supreme Court, 12 March 1962, citing Nwizuk v. Eneyok (1953) 14 W.A.C.A. 354 and also Boakye v. Baabu (1956) 2 W.A.L.R. 183, W.A.C.A.”
This case decided that findings of fact by trial courts at the locus are unimpeachable but it is doubtful whether such findings could accurately be described as findings of fact when they have not been reduced into evidence and their accuracy challenged in cross-examination. Perhaps the justification for this may be found in the authority elsewhere that a court does not cease to be a court when it goes on a visit to the locus in quo.
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Whatever view one takes of the decided cases on the practice and procedure to be followed during and after a visit to the locus in quo the one common view taken by appellate courts on this is that there is a tendency more towards saving the proceedings than declaring them a nullity. A close study of the majority, if not all the above cited cases show a general tendency on the part of the courts not to allow appeals solely on the ground of mere flaws in the practice and procedure adopted at the inspection. The general view has been to view the procedure as to whether it constituted:
(a) a fatal or material irregularity which had occasioned a miscarriage of justice such as was instanced in Boohene’s case (supra); or
(b) whether the procedure infringed or was in violation of any fundamental principle of the administration of justice.
In none of the cases was there a strict insistence on technicalities. Thus in the Boohene case (supra) the appeal was allowed because the court considered the procedure whereby a member of the court went into the witness-box and subjected himself to cross-examination as irregularly fatal. Contrast this with Adzonu’s case (supra).
In the case of Anto v. Mensah (supra) it was held as stated in the headnote at p. 220 that:
“Although a Native Court should not allow their impressions, gathered on a visit to the locus in quo in a dispute concerning land, to become a substitute for the evidence they have heard in court, yet this is not to say that they should not attach to those impressions whatever weight they think appropriate in the circumstances of the case. Where plans are not tendered in evidence, a visit to the locus in quo will frequently form an effective and acceptable substitute for such plans and in these circumstances the impressions gathered by the members of the Native Court can be treated on the same lines as the impressions gathered by them from the demeanour of witnesses in court.”
Even though the procedure adopted in the Anto case was undisputedly found not to be in conformity with the recommended practice, nevertheless the court did not hold the procedure as amounting to a material irregularity which vitiated the proceedings.
What I have been able to deduce from the line of authorities on the attitude of appellate courts to the practice and procedure followed at the inspection and after by trial courts are that:
(a) It is highly desirable that the procedure recommended be followed: the Gblevi Family case (supra).
(b) A departure from the recommended practice does not automatically vitiate proceedings thereby rendering it a nullity: see the Anto and Adzonu cases.
(c) To vitiate the proceedings the procedure adopted must be so materially irregular as to have occasioned a miscarriage of justice or it must be a violation of a fundamental rule of administration of justice: see the Boohene case.
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(d) Where it is intended to make use of material facts obtained at the locus in quo which are not already part of the evidence it is desirable to reduce them into evidence before being relied on. Otherwise a view of the land should be for the purpose of clarifying the evidence put in by the parties and should not be made a substitute for that evidence: see the Bimmah and Anto cases (supra).
(e) Where a party intends to object to the findings at the locus when no opportunity was offered him or her in the court below to examine the witnesses used, the objection should be taken in the appellate court by an application for a survey supported by an affidavit stating the grounds of the objection. This would mean that where the application is granted and the survey is ordered, the plan will be admitted in evidence as part of the record, each party having the opportunity to cross-examine on it: see the Anto case (supra).
With the above analysis as a guide I shall now examine the present case to see how far the case for the plaintiff is made out. In the instant case the court, after hearing what each party and their witnesses had to say, visited the locus in quo and the findings which form part of the judgment do not show that any new material, vital to the decision, was found other than what had already been testified to in court. Like some of the cases referred to above, especially the Anto case, I concede that the procedure adopted did not accord with the counsel of perfection that have been indicated in other cases like the Gblevi Family case (supra) but I am certain that it is not so irregular as to disturb the judgment of the court below. The procedure adopted by the trial court in the instant case did not violate any fundamental principle of the administration of justice and therefore it was not fatal to the decision.
The plaintiff not having been able to impeach the judgment appealed from successfully on any of the grounds urged on her behalf will have her appeal dismissed with costs assessed at 075.
DECISION
Appeal dismissed with costs.
S. E. K.
