Penepah Vrs Azor & 2 Ors [2022] GHASC 50 (27 July 2022)

IN THE SUPERIOR COURT OF JUDICATURE IN THE SUPREME COURT ACCRA - A. D. 2022 CORAM: DORDZIE (MRS.) JSC (PRESIDING) PROF. KOTEY JSC OWUSU (MS.) JSC LOVELACE-JOHNSON (MS.) JSC PROF. MENSA-BONSU (MRS.) JSC CIVIL APPEAL NO. J4/155/2022 27TH JULY, 2022 FELIX PENEPAH …. PLAINTIFF/APPELLANT/RESPONDENT VRS AYINDENABA AZOR AYUOBI AZOR …. DEFENDANTS/RESPONDENTS/APPELLANTS AKALBILLA AZOR JUDGMENT DORDZIE (MRS.) JSC:- 1 | P a g e BACKGROUND In1997, the father of the defendants in this case, Azor Akaliga sued the plaintiff herein Felix Penepah in the High Court Tamale, claiming declaration of title to a piece of land described as Plot Number 35A Dagmew Residential Area Bolgatanga. An order for perpetual injunction, restraining the defendant Felix Penepah, his agents assigns successors or servants from interfering with plaintiff’s possession and use of plot number 35A; and General damages for trespass. The High Court in its judgment dated 10 February 1998 gave judgment in favour of the plaintiff, declared him the owner of plot number 35A Dagmew Residential Area Bolgatanga. The court declared the defendant a trespasser and granted the restraining order but limited it to the unoccupied portion of plot 35A. It was the court’s view that the defendant had already built on a portion of the land and was living there with his family. It would be unfair and unequitable to restrict him in respect of the entire plot of land. However, peace never prevailed between the parties; the defendant eventually built another house and moved out from No 35A Dagmew Residential Area. In 2011, the plaintiff Azor Akaliga passed. Several years after the High Court judgment, 18 years precisely, the defendant, in a writ filed on 9 August 2016, commenced a suit against the personal representatives of Akaliga Azor in the High Court Bolgatanga in respect of the same subject matter, 35A Dagmew Residential Area Bolgatanga. Facts I would reproduce the claims as endorsed on the writ of summons and the facts of the case as unfolded in the pleadings of the parties. The claims The Plaintiff's claim against the Defendants jointly and severally is for- 2 | P a g e 1. A declaration that, save that they have a common boundary, the plots of land numbered 35A and 35C Dagmew Residential Area, Bolgatanga are two separate and distinct plots of land one from the other. 2. A declaration that the storey building put up by the Defendants' predecessor (the late Azor Akaliga) is located on plot No. 35 A. 3. Declaration of title to plot, No. 35C which plot is bounded to the North by the Bolgatanga-Bawku Highway to the South by Plot No. 35A to the East by an unnamed road and to the West by Plot No. 35B and measuring in the aggregate 0.20 acre. 4. A declaration that the Plaintiff's residential building vandalized by the Defendants' predecessor (the late Azor Akaliga) is located on Plot No. 35C and not on Plot No. 35A or any part thereof. 5. An order of perpetual injunction restraining the Defendants whether they act by themselves or by their agents, workmen, heirs, successors, personal representatives, assigns, relatives and associates from trespassing upon Plot No. 35A Dagmew Residential Area, Bolgatanga or in any way howsoever described interfering with the Plaintiff's interest or interests therein. 6. Recovery of possession. 7. General damages for trespass The averment of facts supporting the above claims as contained in the accompanying statement of claim are as follows: 1. The Plaintiff is a carpenter residing and practicing his trade at Dagmew, Bolgatanga. 2. The Defendants are the personal representatives (Administrators of the estate) of the late Azor Akaliga (deceased) (hereinafter referred to as the late Azor) which Defendants are residing at H/No.113 Daporetindongo, a suburb of Bolgatanga. 3 | P a g e 3. The late Azor was during his life time the owner of a piece or parcel of land situate lying and being at a place commonly known as and called Dagmew, a suburb of Bolgatanga which parcel of land is marked Plot No. 35A. 4 The late Azor acquired Plot No. 35A by way of an assignment in 1980 from one Mallam Seidu Moshie who in his turn had acquired the same in 1977 from the Republic of Ghana which at the time held the same in trust for the people of Bolga Skin. 5. The late Azor constructed a storey building on Plot No. 35A wherein he lived with his family until his demise in January 2011. 6. Between 1977 and 1991, there was unoccupied land in front of Plot No. 35A which unoccupied land was, in 1997, demarcated and plotted to create a new plot which new plot was marked Plot No. 35C. 7. Title to Plot No. 35C was, upon its creation, vested in the Tindana of Daporetindongo who granted the same to the Plaintiff by way of a lease dated the 26th November 1991 and registered as No. UER/153/91. 8. The Plaintiff developed a portion of Plot No. 35C by constructing a residential building thereon and wherein he lived with his family. 9. The late Azor did, sometime in 1997 lay claim to the land then plotted into Plot No. 35C insisting that it was part of Plot No. 35A and pursuant to such claim trespassed upon a portion of Plot No. 35A and constructed a drinking bar thereon. 10. The late Azor did also, in 1997, institute legal action per Suit No. 8/97 intituled Azor Akaliga versus Felix Penepah whereby he claimed declaration of title to Plot No. 35A, perpetual injunction and general damages against the Plaintiff. 11. Judgment was, on the 20th February, 1998, delivered in Suit No. 8/97 whereby title to Plot No. 35A was declared to be in the late Azor. 4 | P a g e 12. The Plaintiff contends that, save that they have a common boundary, Plot No. 35 C is separate and distinct from Plot No. 35A and therefore the Judgment entered for the late Azor in Suit No. 8/97 did not and does not entitle the late Azor and persons claiming through him to interfere with the Plaintiff's interest in Plot No. 35C. 13. Notwithstanding the averments contained in paragraph 12 hereof, the late Azor mobilized his agents to vandalize the Plaintiff's residential building on Plot No. 35C and sacked the Plaintiff and his family therefrom in the wake of the Judgment aforesaid and his personal representatives (the Defendants herein) have since harassed the Plaintiff and interfered with his quiet and peaceable enjoyment of Plot No. 35C. 14. The Plaintiff avers that unless restrained by an order or orders of the Honourable Court, the Defendants will continue to harass the Plaintiff and generally interfere with the Plaintiff's quiet and peaceable enjoyment of Plot No. 35C, Dagmew Residential Area which land is the Plaintiff's bona fide property. 15. WHEREFORE, the Plaintiff claims as per the indorsement to his Writ of Summons. Statement of Defence In answer, the defendants averred in their statement of defence filed on 22 August 2016 the following facts: 1. Save as hereinafter expressly admitted Defendants deny each and every allegation of fact contained in the statement of claim as if the same were set out in extensor and denied seriatim. 2. Except that the Plaintiff is a carpenter, the Defendants do not admit paragraph 1 of the Statement of Claim. 3. Defendants admit paragraph 2 of the Statement of claim. 4. Defendants admit paragraphs 3, 4, and 5 of the statement of claim. 5 | P a g e 5. Defendants deny paragraph 6 and 7 of the Statement of claim. 6. In further answer to paragraph 6 and 7 of the Statement of Claim, Defendants say the so-called "unoccupied land" was part and parcel of Defendants Plot No. 35A and there was no land for which title could be vested in a Tindana or transferred to Plaintiff 7. Defendants say in answer to paragraph 8 of the statement of claim that Plaintiff developed a portion of Plot No. 35A and not 35C into a building of sorts but that was against the vehement protestations from the Defendants predecessor which protestations manifested in legal suit being taken by Defendants predecessor against the Plaintiff in the High Court, Bolgatanga. 8. Defendants say in answer to paragraph 9 and also in further answer to paragraphs 6 and 7 that the demarcation, plotting and creation of a new plot was contrary to approved procedure and the same being invalid. 9. Defendants admit paragraph 10 and 11 of the statement of claim and say they will contend at the trial that Plaintiff is estopped per rem judicata from re-litigating this suit and that Plaintiffs action is an abuse of the court process. 10 Defendants deny paragraph 12 of the statement of claim. The defendants counter-claimed for - Recovery of Possession of Defendants plot No. 35A which plot Plaintiff has trespass onto, A declaration that Plaintiff having built his own house no longer has any equitable interest in plot No. 35A. In a reply and defence to the counter-claim, the plaintiff denied that the defendants are entitled to any claims by way of counter-claim. 6 | P a g e The Trial High Court. Upon a full hearing, the High Court found that the plaintiff is estopped per rem judicatam from instituting this action. It dismissed the plaintiff’s claims and granted the defendants’ counter-claim. The reasoning of the court in dismissing the plaintiff’s action is worth quoting. “It is apparent that the judgment of Justice Kanyoke dealt with the status of plots 35A and 35C. As indicated again and again, the judgment said plot 35A was owned by defendant's predecessor; it also indicated that though the plaintiff herein holds a lease in respect of plot 35C, he has built on plot 35A. It was further held that the creation of plot 35C was an illegality. In the instant case, plaintiff prays for a declaration that the two plots are separate and distinct from each other though this issue was decided in the binding 1998 judgment. The judgment has not been appealed from and it remains valid and binding on the parties and their privies. The plaintiff, by the instant action, is seeking to re-litigate the same issues regarding the status of the plots that were examined and decided upon by Justice Kanyoke in the 1998 suit. I agree with Mr. Belieb that the judgment of 1998 bars the plaintiff from re-litigating the same matters previously considered and explicitly ruled upon in 1998. The primary purpose of the well-established principle is stated at pp. 304 to 305 of the Sweater and Socks case (supra) in the following words: It is in the interest of justice and the public at large that finality should attach to binding judgments and decisions of courts tribunals of competent jurisdictions. Also parties should not be vexed twice or more over the same matters of litigation... May it also be emphasised that the judgment of 1998 held that the creation of plot 35C was an illegality as the supposed revised layout of Dagmew Residential Area was not approved by the Regional Lands Commission. It is trite that no court will lend its support to a party who founds his cause of action upon an immoral or an illegal act.” In respect of the defendants’ counter claim the court made the following findings: 7 | P a g e “I agree with the opinion of the learned counsel for the defendants that though the 1998 judgment magnanimously allowed the plaintiff and his family to continue to live in the house he put up on plot 35A, the wording of the judgment made the plaintiff a licensee of defendants' predecessor, and by extension, the defendants, as his personal representatives. It is well settled that a licensee who claims title to his licensor's property, forfeits his or her interest in the subject property: see Antie & Adjuwuah v Ogbo (2005-2006) SCGLR 494, cited by counsel for the defendants in his written address. At page 543 of the report, Wood JSC, as she then was, said in this regard that: "The common law rule as to forfeiture by a licensee or tenant who challenges the title of his licensor or landlord has received statutory recognition under sections 27 and 28 of the Evidence Decree, 1975 (NRCD 323). The law is that a licensee or tenant who denies the title of his or her licensor or landlord, either by claiming that title to the subject matter is vested in himself or herself or someone else forfeits his or her interest. In view of the plaintiff's direct challenge to the defendants' lawful claim to ownership, he has forfeited his right to remain in the premises” Undoubtedly, the decision applies squarely in the instant case where the plaintiff, a licensee of the defendants has put up a challenge to the title of defendants over the disputed area of plot 35A. In these circumstances, he must forfeit whatever interest he held in the subject-property. I will not therefore hesitate to order recovery of possession in favour of the defendants of the proportion of plot 35A plaintiff trespassed unto and put up a house. I will also hold that having built a house on a different plot of land where he now resides with his family, the plaintiff no longer has any equitable title in plot 35A. It is only fair that plaintiff is given time to remove whatever property he may wish to take away from the land of the defendants. In this regard, I allow him thirty days from today, the date of judgment to do so.” 8 | P a g e The court granted the defendants’ prayer to recover plot 35A. The plaintiff dissatisfied appealed to the Court of Appeal. The Court of Appeal The Court below allowed the appeal in part. It affirmed the High Court decision dismissing the plaintiff’s suit but set aside the grant of the defendants’ counter-claim on the ground that the plaintiff has equitable interest in the portion of plot 35A where he put up his house; therefore the defendants’ cannot recover same. The defendants dissatisfied with this decision have appealed to this court Ground of appeal The defendants have appealed to this court on the sole ground that the judgment is against the weight of evidence Submissions by counsel Counsel for the plaintiff/respondent raised a preliminary legal point challenging the validity of the statement of case filed on behalf of the appellants. The plaintiff contended that the defendants changed their solicitor; it was not the same solicitor who filed the notice of appeal who filed the statement of case but the defendants failed to file a notice of change of solicitor as required by Order 75 rule 3 (1) of The High Court (Civil Procedure) Rules, 2004 C. I. 47. The notice was attached to the statement of case and does not bear the court registry stamp; this means it was not filed. The statement of case filed by the appellants therefore is incompetent and ought to be struck out. The effect is that the appellants have failed to file a statement of case as required by rule 15(1) (a) and 2 of The Supreme Court Rules 1996 C. I. 16. The appeal therefore must be struck out. In reply to the above submissions counsel for the appellants argued that he submitted his statement of case together with the notice of change of solicitor to the registry of the 9 | P a g e court. That the notice was not stamped and filed separately but was attached to the statement of case was the fault of the registry. This court should treat the omission as an irregularity and order the registrar to correct the situation. The omission is a mere technicality, which should not be allowed to override the merits of the case. Order 75 rules 1(1) and 3(1) of C. I. 47 provide as follows: 1. (1) “A party represented by a lawyer may, subject to rule 2, change the lawyer at any time. 3. (1) Where a party changes the party's representation under rule 1(1), (2) or (3), the party or the lawyer, if any, (a) shall file a notice of the change at the registry of the appropriate Court; which notice shall indicate the number and the date of the current practicing license of the lawyer; …” Rule 15 of sub rule (1) of C. I. 16 provides” 15. “Stating case (1) The appellant shall,- (a) within three weeks of being notified that the record is ready; or (b) within such time as the Court may upon such terms as it may determine,file with the Registrar a statement of his case based on the grounds of appeal as set out in the notice of appeal. 10 | P a g e (2) Where the appellant does not file the statement of his case in accordance with sub- rule (1) the Registrar shall certify this fact to the Court which may upon that order the appeal to be struck out. The procedural irregularity complained of by the respondent does not cause any injustice to the respondent. It is a type of non-compliance this court can exercise its discretion under rule 79 of C. I. 16 to waive. We do hereby waive the irregularity. The registrar of this court is hereby ordered to stamp the notice of change of solicitor submitted by counsel for the appellant. The said notice is hereby deemed to be properly filed In his argument supporting the appeal, counsel for the defendants submitted that the court of appeal unjustifiably interfered with the findings and orders of the trial court. Counsel took the position that by the pleadings and evidence of the plaintiff in this action he never sought to assert the equitable interest the 1998 judgment granted him in the land where his building stood. (That is, within the four corners of his building); rather he is claiming legal title to all that part of plot 35 A which he describes as 35C, despite the 1998 binding decision. This, according to counsel is a big challenge to the title of the defendants and not a side wind denial of defendants’ title as the Court of Appeal concluded in its judgment. Counsel further argued that in view of the evidence on record, it is wrong for the Court of Appeal to hold that plaintiff’s equitable interest in the property persists in perpetuity until the building is demolished or abandoned. At the time plaintiff instituted this action his equitable interest in the property was no longer existing; as such to hold that the equitable interest persists in perpetuity amounts to allowing the plaintiff’s equitable interest to defeat the defendants’ legal interest; equity follows the law therefore an equitable interest could not generally override a legal interest. Counsel further submitted that equitable remedies are discretionary, and equities in a case change with time. The equities at the time of the 1998 judgment 11 | P a g e suggested extreme hardship to the plaintiff and his family. In 2016 when he took out this suit, the evidence is that his situation had changed. His house on the disputed land had been vandalized and he had to abandon it. He had put up a new house where he lives with his family. The circumstances in which the court exercised its discretion to give him an equitable remedy no longer existed. It is unfair and unjust to refuse the defendants to recover possession of their property. It is counsel for the defendants’ further submission that the evidence on record is that plaintiff trespassed on plot 35A and built on it despite protest by the late Azor. The interest he created on the land was not validly created therefore such an interest cannot be declared irrevocable. The 1998 judgment allowed plaintiff to live in the house he put up so long as he acknowledged the title of the defendant. He was therefore, a licensee and where he had challenged the title of the true owner he ought to be thrown out. The findings of the High Court was therefore right and should not have been interfered with by the first appellate court. In reply, counsel for the plaintiff argued that the Court of Appeal did not make any findings of fact, which is unsupported by the evidence on record. It only disagreed with the trial court on the issue of equitable interest and licensee. No licensee relationship was created between the late Azor and the plaintiff. The plaintiff has a possessory heritable interest in the land where his building situates. That he had built elsewhere and moved does not mean he had abandon his building. Determination of the Appeal The decision of the Court of Appeal affirmed the trial court’s decision that the plaintiff is estopped from instituting this action and dismissed plaintiff’s claims. The subject matter of the appeal before this court is therefore limited to the defendants’ counter 12 | P a g e claim. What we would be considering in this appeal are issues arising from the defendants’ counter-claim. The ground of appeal being that, the judgment of the Court of Appeal is not supported by the evidence on record, we are obliged to follow the well-established principle that the court must review the entire record and come to its own conclusion based on the preponderance of probabilities. In a recent decision on this principle, this court held in the case of Adjetey Adjei & Others v Nmai Boi & Others [2013-2014]2 SCGLR 1474 (holding 1 page 1477) that, “it was incumbent on the Supreme Court, as a second appellate court, to analyse the whole record of appeal, take into account the testimonies and all documentary evidence adduced at the trial, so as to satisfy itself that on the balance of probability the conclusions of facts by the Court of Appeal were reasonably or amply supported by the evidence.” The issue arising for determination in the instant appeal is whether from the evidence on record the 1998 judgment of the High Court created an equitable interest in the property in dispute that runs in perpetuity. In layman’s language, did the 1998 judgment create an equitable interest in the disputed property in favour of the plaintiff that lasts forever? We will proceed by considering the evidence of the defendants in proof of their counter-claim. In his witness statement found at page 51 to 52 of the Record of Appeal, the first defendant made reference to the judgment of the High Court in 1998 (which is part of their exhibits); and said, though the court then found that the plaintiff in this suit had trespassed on their land, that is plot Number 35 A, the court nonetheless on humanitarian grounds did not make a restraining order restraining the plaintiff from living in the house he constructed. In the court’s view, it would have been harsh and unfair to deprive him of a place to lay his head. After the judgment however, peace did not prevail between the parties. The regional Peace Promotion Office in Bolgatanga had 13 | P a g e to take steps in to promote peace between the parties and avoid the breach of the peace in the community. At the Regional Peace Promotion Office, the plaintiff made it known that he had moved from the house he built on the disputed land. He had acquired another property and had relocated to that house; house N0 D159 Sawaba, Dagmew Residential Area, with his family. Plaintiff’s own evidence supports the evidence of the defendants. He said that since 1998, the defendants’ predecessor organized people and they destroyed his building; he was driven out and had ever since lived in a new house he built. The defendants’ further evidence is that the reason for which the court in the 1998 sympathized with the plaintiff does not exist anymore. Apart from that by the present action, the plaintiff has challenged their title to plot N0 35 A. They are therefore entitled to recover possession of their property. In the judgment on appeal the Court of Appeal put its own interpretation on the 1998 judgment of the High Court to maintained that, the said judgment gave the plaintiff equitable interest in the portion which plaintiff’s building stood and in the words of the Court of Appeal “It is an interest which persists in perpetuity, in the circumstances of this case, until the building is demolished or abandoned.” Based on this reasoning, the court went ahead to set aside the High Court’s decision, thereby denying the defendants recovery of possession of the rest of plot Number 35A. If the Court of Appeal’s own preposition is that the equitable interest the plaintiff had in plot N0 35A ceases when the building is demolished or abandoned then it was wrong on its part to set aside the defendant’s counter-claim because there is ample evidence on record supported by the plaintiff’s own pleadings and evidence that since the judgment was given in 1998, he with his family were driven out of the house he built on 35 A and the said house was vandalized by the late Azor. This means he abandoned the house 24 years ago. 14 | P a g e I hold the view that the interpretation the court below placed on the 1998 judgment of the High Court, upon which it drew its conclusion is wrong. The decision of the court below is not supported by any known legal authority. Rather it is contrary to the known basic principles around which the rules of equity have been developed. Some of these principles are ‘equity follows the law’ ‘equity acts on the conscience’. The 1998 judgment clearly stated that the portion of land the plaintiff called 35 C was illegally created and that it is part of 35 A, the late Azor’s property therefore, the plaintiff herein is a trespasser on the said land. To hold that the trespasser has perpetual interest in a portion of land he entered illegally amounts to the court supporting illegality. The circumstances that existed in 1998, which the High Court considered and in the exercise of its discretion permitted the plaintiff herein to remain on the property is clearly borne out by the evidence on record. Allowing the plaintiff herein to remain on the land was purely on humanitarian grounds and even then, a further comment by the court in the judgment suggests the court did not mean the interest to run in perpetuity as the court below held. For the High Court at the tail end of the 1998 judgment, commented that, defendant “is now confined strictly to the four corners of his building but even there he is not free for if the plaintiff insists on his pound of flesh there will be trouble for the defendant.” This fear expressed by the court, which could deprive the plaintiff of any right or interest in the building he put up on plot 35A actually materialized soon after the judgment. Per the plaintiff’s own pleadings, there was ‘trouble’ for him. In paragraph 13 of his pleadings he averred that “the late Azor mobilized his agents to vandalize the Plaintiff's residential building on Plot No. 35C and sacked the Plaintiff and his family therefrom in the wake of the Judgment aforesaid and his personal representatives (the Defendants herein) have since harassed the Plaintiff and interfered with his quiet and peaceable enjoyment of Plot No. 35C.” 15 | P a g e This means the defendants and their predecessor have always regarded plaintiff as a trespasser and vandalized his property making him abandon same and resettled elsewhere. For the plaintiff to come back to court 18 years after, praying the court to declare title in the property in him is not a candid act on his part. The 1998 judgment lamented that the plaintiff then, that is the defendants’ predecessor did not make recovery of possession part of his claims in the writ therefore that was not granted. This suit gave the defendants the opportunity to do so in a counter claim. They are entitled to recovery of possession of their property. The High court cannot be faulted in granting the counter claim. The Court of Appeal’s decision runs contrary to its own reasoning and it is not supported by the evidence on record. The appeal succeeds The decision of the Court of Appeal dated 25 June 2021 is hereby set aside. The defendants succeed on their counter-claim We order that the defendants recover possession of the portion of plot number 35 A where plaintiff is laying claim to. A. M. A. DORDZIE (MRS.) (JUSTICE OF THE SUPREME COURT) PROF. N. A. KOTEY (JUSTICE OF THE SUPREME COURT) 16 | P a g e M. OWUSU (MS.) (JUSTICE OF THE SUPREME COURT) A. LOVELACE-JOHNSON (MS.) (JUSTICE OF THE SUPREME COURT) PROF. H. J. A. N. MENSA-BONSU (MRS.) (JUSTICE OF THE SUPREME COURT) COUNSEL MOHAMMED ALHASSAN ESQ. FOR THE PLAINTIFF/APPELLANT/RESPONDENT. JAMES MARSHALL BELIEB ESQ. FOR THE DEFENDANTS/RESPONDENTS/APPELLANTS. 17 | P a g e