MADAM COMFORT OFORI v. KWAME APPENTENG
2017
SUPREME COURT
CORAM
- DOTSE, JSC (PRESIDING)
- BAFFOE-BONNIE, JSC
- GBADEGBE, JSC
- BENIN, JSC
- APPAU, JSC
Areas of Law
- Property and Real Estate Law
- Evidence Law
- Civil Procedure
2017
SUPREME COURT
CORAM
AI Generated Summary
In this Ghanaian Supreme Court appeal, authored by A. A. Benin, JSC, the Court dismissed Mr. Appenteng’s challenge to a Court of Appeal decision that had reversed the Circuit Court, Accra, in a land dispute concerning a parcel at Bawaleshie. Comfort Ofori-Atta and her late husband acquired two adjoining plots from the Tsiquaye family in 1978; her acts of possession and subsequent events were corroborated by PW1 (David Osei Yeboah) and PW2 (Godfred Kwesi Nkansah Baah). The defendant’s admissions during encounters with PW1 and PW2—agreeing to demolition of an encroaching fence—undermined his claim. The Court rejected the court-appointed surveyor’s composite plan and testimony as unreliable, emphasizing that expert evidence does not bind a court under Section 3(2) of the Evidence Act and Phipson on Evidence. The defendant’s indenture (Exhibit 1) bore registration anomalies and was rejected. Finding the parties ad idem on the identity of the land (100 by 90 feet south of PW1’s lot), the Supreme Court upheld the Court of Appeal’s judgment in favor of the plaintiff and dismissed the appeal.
J U D G M E N T
BENIN, JSC:-
This is an appeal from the decision of the Court of Appeal, which had reversed a decision of the Circuit Court, Accra. The parties herein are disputing over a piece and parcel of land situate at a place in Accra called Bawaleshie. Both parties claim from the same grantor. Both parties claim to have registered their respective tract of land. Thus from the pleadings, the issue boiled down to the identity of the land and whether from their respective site plans contained in their indenture that they claim to have registered, either party has encroached on the other party’s land. This was the ultimate issue, which from the brief narration could have been resolved with a properly drawn up composite plan.
The trial judge took the right step by appointing a surveyor to draw up a composite plan with the aid of the documents, especially the site plans presented by the parties. The surveyor who did the assignment testified as CW1. Indeed his testimony leaves much to be desired; he made a mess of himself, and we wonder if he is truly a professional surveyor. In one breath, he said the plaintiff’s land lay some 100 feet away from the disputed land. In the next moment he said the distance was about 45 feet approximately. Yet in another breath he said the two parties showed the same piece of land. As if there was not much confusion already, he said the defendant had also exceeded his land, so only a part of the land in dispute falls within the defendant’s land. Indeed the defendant’s land overlaps the disputed area, according to the witness. He was specifically asked by counsel for the defendant this question:
“You admit that the areas covered by the site plan for Mr. Appenteng, the defendant which is marked yellow virtually covers the land in dispute.” And his answer was:
“No, there was an overlap”
It is clear the surveyor created more confusion than he was called upon to resolve. It is no wonder that at the end he could not tell the court exactly the position of the plaintiff’s land, as he himself had depicted on the composite plan. The following extract from his cross examination by counsel for the plaintiff is instructive:
“Q. So given the outcome of what you did and in accordance with the composite plan, could you confirm to the court where the plaintiff’s land is located?
A. If I compare the site plan and the ground situation, there is a shift of about 100 feet at the north-western part.
Q. So as a result of the shift, where w