TACKlE vs. LAMPTEY [2001-2002] 2 GLR 186

CASE REFERRED TO:

(1) Dam v Addo [1962] 2 GLR 200, SC.

APPEAL by the plaintiff-appellant against the judgment of the trial High Court judge in a land dispute in which the parties agreed to have their site plans superimposed on a composite plan by the Regional Survey Department to help determine the identity of the land in dispute. The facts are sufficiently set out in the judgment of Twumasi JA.

G. Heward-Mills for Adumua-Bossman for applicant.

Nathaniel Myers for respondent.

Twumasi JA. By her statement of claim the appellant (hereinafter called the plaintiff) accused the respondent (hereinafter called the defendant) of committing acts of trespass upon the plaintiff’s property which consisted of a piece of land with building thereon which had reached lintel level. The defendant was alleged to have demolished part of the plaintiff’s said building. The plaintiff claimed ownership of the land by grant to her by the Nii Charbukwe family of Anyah in the Sempe Division of the Ga Traditional Area in 1986 and she held an indenture and a registration certificate from the Lands Secretariat and a building permit. The defendant, for her part, by paragraph (5) of her statement of defence vehemently denied the allegation of trespass averred in paragraph (8) of the plaintiff’s statement of claim and averred in answer to the plaintiffs claim that she became the owner of the same land way back in 1976 by a grant to her by Nikoi Olai stool family. While the plaintiff described the land as lying and situate at Anyah, Accra with specific measurements of its size as stated in the endorsement of her writ of summons, the defendant described the land as situate at North Odorkor. Awoshie and said it fell within the Mukose lands. The defendant did not state the division in her pleadings, though. However, the defendant also made a counter accusation of trespass against the plaintiff by alleging that the plaintiff demolished her wooden structure on the land and commenced building operations

[p.189] of [2001-2002] 2 GLR 186 despite warnings and protestation from the defendant and her husband. This confrontation ended up in a court action instituted by the plaintiff.

At the trial, after both parties had tendered their documents of title including site plans the need for a proper identification of the land became imperative. At this juncture the parties on either side with their legal advisers in full participation agreed that the situation demanded a superimposition of a composite site plan of the whole area with a view to locating the disputed land on the said composite plan. A consent order was accordingly made by the trial judge appointing the regional surveyor of the Survey Department to do the job and to testify in court about his finding.

In his judgment the learned judge summarised his finding of the work done by the regional surveyor in the record of appeal as follows:

“According to the representative who gave evidence as first court witness the parties submitted their site plans to him. They both accompanied him to the site. At the site Madam Koshie Lamptey pointed out her land and the land is shown edged blue on the composite plan. The land shown by Beatrice Tackie, the plaintiff, is edged pink. The surveyor also superimposed the site plan of the defendant and the site revealed by the superimposition is edged green. That of the plaintiff is edged yellow. The resultant composite plan produced by the surveyor shows that the land shown by the plaintiff and her site plan falls in the same place, that is the land in dispute. However, though the land pointed by the defendant falls within the land in dispute her site plan shows that the defendant’s land was somewhere else, in fact many yards away from the land in dispute.”

When he testified and answered questions in cross-examination no issue was raised against the Regional Survey Department representative for breach of any rule of natural justice or of any defect in the composite plan. Nor was any allegation of fraud or impropriety raised against any of the parties with regard to her document of title before the consent order was made. Fraud was never pleaded by any of parties. More specifically neither party alleged that there was any defect in her site plan. On the contrary, all the parties

[p.190] of [2001-2002] 2 GLR 186 agreed that they would submit their dispute to the test by means of a neutral composite plan. In fact what took place at the trial bore most if not all the essential attributes of a valid arbitration.

Perhaps I must perforce say in parenthesis that this appeal brings into sharp focus the importance of the procedure rules relating to the inspection of documents, discoveries and interrogatories. After the learned trial judge had committed himself to the procedure of a composite plan, he surprisingly reneged on the positive result of the composite plan. When it had become clear that the land claimed by the plaintiff was the same as the disputed land, counsel for the plaintiff applied to the court to enter judgment for the plaintiff under Order 40, rr 1-4 of the High Court (Civil Procedure) Rules, 1954 (LN 140A). Order 40, r 3 of LN 140A reads as follows:

“3. Where issues have been ordered to be tried, or issues or question of fact to be determined in any manner, the plaintiff may set down a motion for judgment as soon as such issues or question have been determined.”

The learned trial judge erred grievously when he rejected the plaintiff counsel’s motion for judgment under Order 40 of LN 140A because the composite plan which was directed by the judge himself with the consent of the parties settled or determined the issue of the identity of the land in dispute. At that stage the weight of the evidence was clearly in favour of the plaintiff. The learned trial judge therefore gave judgment against the weight of the evidence and accordingly ground (a) of the plaintiff’s grounds of appeal that the judgment was against the weight of the evidence succeeds.

It is trite law that in an action for declaration of title to land, as in the instant case, where each party claims a declaration, the plaintiff or the defendant who counterclaims must prove satisfactorily the identity of the land. In the instant case it was clear that there was a discrepancy between the land shown by the defendant and the one shown by her own site plan. In such a case the onus of proof lay on the defendant to show why such a situation should arise. I conceive it to be the duty of any person who acquires a piece of land to ensure that the document or site plan attached to her document of title actually delineates the land acquired by him or

[p.191] of [2001-2002] 2 GLR 186 her. In this regard the person concerned has to do serious homework at the Lands Registry Department so as to avoid the situation which has occurred in the instant case. The facts of this case show that before the commencement of legal proceedings, the parties had been disputing over the ownership of the land. This clearly must have sent signals for eventual litigation. The parties therefore had enough opportunity and time to do their homework with regard to their respective claims to the land, if they had not done so already. Again it is the duty of solicitors or counsel, when they are engaged to handle land cases, to do proper investigations and necessary searches at the Land Registry.

I am making these comments for obvious reasons, not least because when the learned trial judge found that the site plan of the defendant did not fall within the land in dispute despite the fact that she claimed she had been in possession of the land way back in 1976 as compared with the plaintiff’s relatively recent acquisition of the land in 1986, he took upon himself either out of sympathy for the defendant or ill-intention to deny the plaintiff her title to the land to find ways and means to come to the rescue of the defendant. Whichever hypothesis is the truth, it is a flagrant violation of the judicial oath of a judge to do justice without favour or ill-will, or affection for or against one party. Not only is this conduct contrary to the judicial oath but also breaches the rule in Dam v Addo [1962] 2 GLR 200, SC, holding 2 of the headnote which reads as follows:

“(2) A court must not substitute a case proprio motu, nor accept a case contrary to, or inconsistent with that which the party himself puts forward, whether he be the plaintiff or the defendant. Esso Petroleum Co. Ltd., v Southport Corporation [1956] A.C. 218, H.L.; Fischer and Co. v Thompson (1904) 1 Ren. 302; Akua Oye v Baddu (1924) DCt ’21–’25, 116 and Oloto v Williams (1944) 10 W.A.C.A. 23 applied.”

The corollary of this rule is also true, that is to say, it is not open to a trial judge or court to put forward for a party a case which the latter himself failed to put up. The learned trial judge had no power proprio motu to base his judgment on an alleged fraud of the appellant’s document when the defendant herself did not plead and

[p.192] of [2001-2002] 2 GLR 186 prove such fraud against the plaintiff. Again since the parties brazed themselves to fight the case on the relative strength of their site plans and indentures, it was not competent for the trial judge to add or subtract anything from the instruments by adducing extrinsic evidence to affect the contents of the instruments: see section 177 of the Evidence Decree, 1975 (NRCD 323) and page 130 of the Commentary on the Evidence Decree, 1975 (NRCD 323) where it is stated that: “Section 177 preserves that aspect of the former rule which bars the admission of evidence to contradict a term of a writing intended to be the final expression of that term.”

A site plan falls squarely within this rule and accordingly the learned judge erred in admitting extrinsic evidence most of which were speculative, eg that the surveyors made mistakes, when there was no such proof, or that the defendant was an illiterate and therefore her predicament with regard to her site plan must be excused. I therefore endorse the submissions and the numerous cases cited by counsel for the appellant on his grounds of appeal which attacked the learned trial judge’s admission of extrinsic and other evidence to contradict the result of the regional surveyor’s report.

Also it was not open to the trial judge to enter the arena of the duel to offer explanations as to why the defendant’s site plan totally failed the test agreed upon by both parties by saying that there was a discrepancy between the defendant’s site plan and the land on the ground. As I have already stated, the onus of explaining her failure lay upon the defendant, not the judge to carry that burden.

The learned trial judge’s holding that the defendant had been in possession of the land in dispute since 1976 was assailed in one of the grounds of appeal. If she had in fact been in possession, the question to ask is whether her occupation of the land could be justified in view of the report of the Regional Survey Department. The only logical conclusion is that she had been on land which is outside the one she actually acquired as per her site plan which she wittingly submitted to be superimposed on the regional survey plan.

The last ground of appeal was ground (d), that the learned trial judge erred in law by exceeding his jurisdiction when he declared that the land in dispute belonged to the Asere stool. There is substantial merit in this ground of appeal and the reason is simple. The issues before the court or the judge were the identity of the land [p.193] of [2001-2002] 2 GLR 186 and the ownership thereof as between the plaintiff and the defendant. No stool joined as a party although the parties mentioned that they acquired the land from stools. The learned judge should therefore have limited himself to the parties and not the stools because the law is quite clear that disputes between two stools fall within the jurisdiction of the Stool Lands Settlement Commission by virtue of section 4 of the Stool Lands Boundaries Settlement Decree, 1973 (NRCD 172). The Land is dispute must certainly fall within the jurisdiction of one stool or another, but this is not a matter for any court, not even the Supreme Court to determine. It was therefore presumptuous on the part of the trial judge to make such pronouncement on stool lands boundary. For the foregoing reasons, I would allow the appeal. Since there was no proof of damages that claim is dismissed but we award ¢200,000 for general damages. Costs of ¢1 million for the respondent.

Wood JA. I agree.

Aryeetey JA. I also agree.

Appeal allowed.

M A-G