Land –
Ownership – Contract of sale -
Deed of Registration - Claim of
title - Non-compliance with
provisions of the Stamp Act and
Public Records and Archives
Administration Act, (Act 535) of
1997 - Whether or not members of
the plaintiff, had alienated
portions of the land, which
land, the subject matter of the
present suit - Whether or not
they had the capacity to
alienate the land - Whether or
not the land was given to the
Defendant’s ancestor to
cultivate coconut - whether or
not the defendant had
perpetrated fraud
HEADNOTES
The defendant
while admitting the prior
ownership of the plaintiff’s
family pleaded a grant from the
family to his predecessors in
title on September 22, 1944. The
said transaction of sale on
which the defendant relied was
covered by a deed that was
registered as No 273A/1945. The
relevant pleadings of the
defendant on how they came to be
possessed of the disputed land
was averred to in the statement
of defence, which provided the
plaintiff with what we consider
to be a full and frank
disclosure of the reason why
their claim of title to the land
was being resisted, the learned
trial judge accepted the
defendant’s version of the
matter in preference to that of
the plaintiff. the learned
judges of the Court of Appeal by
dismissing the appeal - section
130(2) of the Evidence Act, NRCD
323
HELD
On
the appeal generally, we have
observed that the grounds of
appeal to this court that is
contained at page 240 0f the
record of appeal is a repetition
of those that were previously
filed in the Court of Appeal at
page 168 of the record of appeal
before the Court of Appeal save
that where there was in the
previous notice a reference to
the trial court in the new one
the words “Court of Appeal” have
been substituted. Having come
to the view that the decision on
appeal to us was right, we think
this is sufficient to dispose of
the instant appeal for the
reasons above.
The result is
that the appeal herein is
dismissed and we proceed to
affirm the decision of the Court
of Appeal.
STATUTES
REFERRED TO IN JUDGMENT
Evidence Act,
NRCD 323
Archives
Administration Act, (Act 535) of
1997
Stamp Act
2005 (Act 689)
CASES
REFERRED TO IN JUDGMENT
Achoro v
Akanfela [1996-1997] SCGLR 209
Jass Co Ltd v
Appau [2009] SCGLR 208
BOOKS
REFERRED TO IN JUDGMENT
DELIVERING
THE LEADING JUDGMENT
GBADEGBE JSC:
COUNSEL
MAXWELL HALM
REPRESENTS THE APPELLANT.
HANRY WILLIAM
KOBINA RESPONDENT PRESENT.
JOHN MERCER
(WITH COSMOS ANDOH) FOR THE
APPELLANT.
MICHAEL
ARTHUR-DADZIE FOR RESPONDENT
____________________________________________________________________
J U D G M E N
T
____________________________________________________________________
GBADEGBE JSC:
This is an
appeal from the decision of the
Court of Appeal that affirmed
the decision of the High Court,
Cape Coast in an action that
turned on the
ownership
of a piece or parcel of land
situate at Momofra Akyenim in
the Central Region. It appears
from the judgment of the Court
of Appeal that the leaned judges
accepted the determination of
the trial High court. Delivering
the judgment of the court,
Piesare JA (as he then was) said
by way of a comment on the
appeal before them as follows:
“At the end
of the day, the trial judge gave
a straightforward and
comprehensive judgment
dismissing the
plaintiff-appellant’s claim, and
entered judgment in favour of
the defendant on his
counterclaim. We have carefully
examined the judgment, and we
have no good reason to disturb
that judgment.”
In our view
the facts that led to the issue
of the writ of summons herein in
the trial court were as said by
the learned judge of the Court
of Appeal whose pronouncement
has just been quoted relatively
simple and turned on the
question as to who owned the
disputed land that on the
admitted evidence was first
acquired by the plaintiff’s
family by purchase.
The
defendant while admitting the
prior ownership of the
plaintiff’s family pleaded a
grant from the family to his
predecessors in title on
September 22, 1944. The said
transaction of sale on which the
defendant relied was covered by
a deed that was registered as No
273A/1945. The relevant
pleadings of the defendant on
how they came to be possessed of
the disputed land was averred to
in paragraphs 7–10 of the
statement of defence, which in
our view provided the plaintiff
with what we consider to be a
full and frank disclosure of the
reason why their claim of title
to the land was being
resisted. Reference is made
shortly afterward in this
delivery to the relevant
pleadings for a better
appreciation of the very narrow
compass within which the action
ought to have been contested in
the trial court having regard to
the case put forward by the
parties. Since the defendant
admitted the prior ownership of
the plaintiff but relied on a
purchase by his ancestors from
the plaintiff’s predecessors in
title, we think that the right
to begin at the trial rested on
the defendant and accordingly in
considering the pleadings filed
on their behalf in the trial
Court, we commence with that of
the defendant. The relevant
pleadings of the defendant that
answer the plaintiff’s
averment as to title that is
asserted in paragraph 4 of the
statement of claim is contained
in the following paragraphs.
“7. In answer
to paragraph 4 of the statement
of claim, Defendant says that
his great grand fathers; Atekye
Panyin, Nana Amba Kainbah and
John Braham all Atekyem Quarters
and members of the Anona family
of Elmina acquired the land in
dispute from Jacobus Vanderpuye
Neizer and Elizabeth Ackon alias
Essi Kubil of Elmina.
8. Defendant
further says that the said
Jacobus Vanderpuye Neizer and
Elizabeth Ackon alias Essi Kubil
acted for and on behalf of the
late Kwamina Amissah, Anona
family of Elmina.
9. Defendant
further says that his
(Defendant) great grandfathers
aforementioned in consideration
of the land in dispute paid
(twenty six pounds), a receipt
for which was issued by the
vendors and a deed of conveyance
was then executed on September
22, 1944 to the purchasers and
registered as No 273A / 1945.
10. Defendant
says that the land in dispute
after its acquisition by the
purchaser in 1944 became the
property of the Nana Egyei Foah
Anona family of Elmina and the
family has since exercised
uninterrupted right and control
over same.”
Paragraph 4
of the statement of claim to
which the above pleadings refer
was expressed as follows:
“The said
land was acquired in the late 19th
century by plaintiff’s ancestor
George Emissang aka Kwamina
Amissah who was a lawyer by
profession.”
In our
thinking at the close of the
pleadings the crucial issues for
determination were correctly
set out by the learned trial
judge in the course of his
judgment at page 164-165 of the
record of appeal. We make
reference in this regard to page
164 where the learned judge
observed of the issues that
turned on the pleadings for his
determination as follows:
“Basically,
there are three issues, which
issues are
whether
or not Jacobus Vanderpuye Neizer
and Elizabeth Ackon @ Essi
Kubil, members of the plaintiff,
had alienated portions of the
land, which land, ie the subject
matter of the present suit.
If so
whether or not they had the
capacity to alienate the land.
Whether
or not the land was given to the
Defendant’s ancestor to
cultivate coconut thereon.
There is the issue
whether
or not the defendant had
perpetrated fraud.”
The learned
trial judge then mentioned other
issues for determination that
included that of estoppel by the
judgment in the case of Mary
Conduah v Adzaye that was placed
before him as part of the
plaintiff’s case. Clearly the
learned trial judge appreciated
the nature of the task before
him and we find no fault with
the manner in which he set out
to determine the issues for
trial. After what we consider to
be a careful evaluation of the
evidence
the learned trial judge accepted
the defendant’s version of the
matter in preference to that of
the plaintiff. The
evaluation to which we refer is
found at pages 164 to 167 of the
record of appeal. In particular,
at page 167 he observed by way
of his concluding remarks of the
respective cases of the parties
as follows:
“In this case
the plaintiff did not adequately
prove the boundaries of the land
he is claiming, neither has he
been able to show that his
ancestors gave the land to Kweku
Mensah to plant coconut. It is
not enough for a plaintiff to
make certain depositions of fact
in his statement of claim and
mount the witness box to repeat
those assertions without
evidence of any corroborative
evidence in proof of his
assertions. Consequently, I will
dismiss the plaintiff’s claim in
its entirety and therefore make
a declaration in favour of the
defendant to that entire piece
or parcel of land situate lying
between Mboframa and Akwandah,
the boundaries of which are in
exhibit 2. The defendants are
already in possession of the
land so there is no need to make
an order of recovery of
possession.”
We think that
the
learned judges of the Court of
Appeal came to the right
conclusion on the evidence by
dismissing the appeal.
Having alleged by way of answer
to the defendant’s claim to have
acquired the land fraudulently,
in the face of the due execution
of the deed of conveyance and
its proof before the Registrar
of the Divisional Court, Cape
Coast on 27 September 1944, we
think that his failure to
introduce any evidence to
sustain the said crucial
averment fractured his denial of
the purchase on which the
defendant relied and rendered
his adversary’s case more
probable than that which he
asserted before the trial
court. It appears that on the
evidence and the recent acts of
possession that were exercised
on the land by the defendant,
which acts were traceable to the
purchase that they relied on the
entire evidence pointed hugely
in the direction of a verdict in
favour of the defendant. It is
observed that the document on
which the defendant relied
having been in existence for
more than twenty years and acted
upon by the possession of the
defendant rendered it a document
that comes within the
designation of an ancient
document under
section
130(2) of the Evidence Act, NRCD
323 which provides thus:
“Evidence of a hearsay statement
that is not made inadmissible by
section 117 if the statement is
contained in a writing more than
20 years old and the statement
has since been acted upon as
true by persons having an
interest in the matter.”
We are of
the opinion from the admitted
evidence that the defendant’s
family have been on the land for
several years consequent upon
the grant to them by the
predecessors in title of the
plaintiff and this must explain
why the plaintiff was unable to
call any evidence to support his
allegation that their family had
granted the land to a member of
the family of the defendant to
cultivate coconut thereon as a
tenant. It is surprising from
the evidence that the
plaintiff was unable to call
any other evidence to support
his claim that the coconut
plantation was made on their
land and that there was at the
date he testified in the matter
arrears of ground rent owing to
their family in respect of the
farm.
Then there is
the issue relating to the fact
that the decision on appeal to
us is one in which the Court of
Appeal had affirmed the trial
Court on findings of fact that
turned on the pleadings. In line
with settled judicial
pronouncements, to succeed
before us the plaintiff is
required to satisfy us that the
decision of the Court of Appeal
that confirmed that of the trial
court on issues of fact was one
that contained an error or
blunder resulting in a
miscarriage of justice. We
refer in this regard to the case
of Achoro
v Akanfela [1996-1997] SCGLR 209
per Acquah JSC (as he then
was) at page 212 as well as
Jass Co
Ltd v Appau [2009] SCGLR 208.We
have carefully read the
statement of case submitted to
us by the plaintiff on the
grounds contained in the notice
of appeal that originated these
proceedings and have come to the
opinion after considering the
record of appeal that there is
no error or blunder that has the
slightest effect of a
miscarriage of justice. On the
whole, we are satisfied with the
decision of the Court of Appeal
in the matter herein.
We say in
regard to the purely legal
ground of appeal that is
numbered as one in the notice
of appeal, which seeks to call
in question the court’s reliance
on exhibits 1 and 2, the receipt
for the purchase of the land and
the deed of conveyance that the
substance of the complaint that
touches and concerns the
non-compliance with provisions
of the
Stamp Act
as well as the
Public
Records and Archives
Administration Act, (Act 535) of
1997 that the issues raised
by the said points were
correctly expounded by the Court
of Appeal and accordingly we
shall spend no further time in
considering them. We add that
the document having been in
existence before the coming into
being of the two statutes, the
presumption against statutory
retroactivity applies to them.
On the appeal
generally, we have observed that
the grounds of appeal to this
court that is contained at page
240 0f the re cord of appeal is
a repetition of those that were
previously filed in the Court of
Appeal at page 168 of the record
of appeal before the Court of
Appeal save that where there was
in the previous notice a
reference to the trial court in
the new one the words “Court of
Appeal” have been substituted.
Having come to the view that the
decision on appeal to us was
right, we think this is
sufficient to dispose of the
instant appeal for the reasons
above.
The result is
that the appeal herein is
dismissed and we proceed to
affirm the decision of the Court
of Appeal.
[SGD]
S. GBADEGBE J.S.C
JUSTICE OF THE SUPREME COURT
ANIN YEBOAH
JSC:
I am unable
to sit with my colleagues in
this case as I have to travel to
Kumasi to
Attend to
other “judicial” matters. I,
however, agree with the opinion
of my learned brother Justice
Gbadegbe that the appeal be
dismissed.
[SGD]
ANIN YEBOAH
JUSTICE OF THE
SUPREME COURT
[SGD] W. A. ATUGUBA
JUSTICE OF THE SUPREME COURT
[SGD]
S. A.
B. AKUFFO (MS.)
JUSTICE OF THE SUPREME
COURT
[SGD] V. AKOTO-BAMFO
JUSTICE OF THE SUPREME COURT
COUNSEL:
MAXWELL HALM
REPRESENTS THE APPELLANT.
HANRY WILLIAM
KOBINA RESPONDENT PRESENT.
JOHN MERCER
(WITH COSMOS ANDOH) FOR THE
APPELLANT.
MICHAEL
ARTHUR-DADZIE FOR RESPONDENT |