THEODORE ADJEI OSAE (DR.) & ORS v. NUMO NORTEY ADJEIFIO & ORS

J U D G M E N T

BROBBEY, J.S.C: On 17th November 2000, Asare-Korang J (as he then was) entered judgement for the appellants who sued the first two respondents amongst others for a declaration of title to the Land, a description of which was endorsed on the writ of summons and perpetual Injunction restraining them, their servants, agents or assigns from having anything to do with the land. Dissatisfied with the judgment, the respondents appealed to the Court of Appeal which allowed the appeal and entered Judgement in their favour. The appellants then appealed to this court against the decision of the Court of Appeal.

Seven grounds of appeal were filed. The first three grounds are quite similar and raise identical issues. The first ground of appeal read as follows:

“The judgment of the Court of Appeal was against the weight of Evidence and that the court erred in not holding that, on the balance of probabilities the Plaintiffs/ Appellants discharged the burden of proof placed on them.”

In Akufo- Addo vs. Catheline [1992]1 GLR377 SC, in headnote 3, this Court held that ‘where the appellant exercised the right vested in him and appealed against the judgement on the general ground that the judgement was against the weight of evidence, the appellate Court had jurisdiction to examine the totality of the evidence before it and come to its own decision on the admitted and undisputed facts.

As an appeal is by way of rehearing, the Court of appeal was bound to consider comprehensively the entire evidence before coming to a conclusion on the matter. The burden of proof and persuasion remained on the appellants to prove conclusively, on a balance of probabilities, the boundaries of the Land to which they claimed a declaration of title and perpetual injunction. This burden hardly shifts. Unless and until the plaintiffs who are the appellants are able to produce evidence of relevant facts and circumstances from which it can be said that they have established a prima facie case, the burden remains on them. What then was the evidence adduced by the appellants in the current case?

In the oral evidence of 2nd appellant, he said that the land was bounded to the south towards the motorway by Adjiringano; on the west or left by Tessa, Bawaleshie and Mpehuasem and to the north by Madina town. The 1st appellant’s description was as follows; Tessa and Adjiringano to the south, on the north by Ogbojo village, on the west by Mpehuasem and on the east by Otano. To successfull