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Land -
Declaration of title - Ownership
- Recovery of possession -
Damages for trespass - Perpetual
injunction - Laches and
acquiescence - Whether or not
Land Title Certificate was
obtained by fraud and mistake -
Whether or not . Whether or not
the Plaintiffs’ action is
statute barred - Whether the
Defendants were in adverse
possession for a period of over
12 years -
HEADNOTES
This is an
appeal from the judgment of the
Court of Appeal, Accra dated 16
February2012. The
Plaintiffs/Respondent
/Respondent (Plaintiffs), began
an action before The High Court
Accra on 17 May 2007, against
the Defendants/ Appellants/
Appellants (Defendants) jointly
and severally for the following
reliefs A declaration of title
to all that piece or parcel of
land situate lying and being at
North Teshie and bounded on the
North by one Mr. A. Laryea’s
land measuring 900 feet more or
less on the South by A. Kanton’s
land measuring 900 feet more or
less on the East by the Vendor’s
land measuring 400 feet more or
less and on the Westby the
Vendor’s landmeasuring 900 feet
more or less and covering an
approximate area of 8.2
Acres.The Plaintiffs by their
pleadings claimed that the land
in dispute was acquired in their
names by their late father in
1961 from Nii Klu Din the then
acting Mankrado of Teshie and an
indenture evidencing the sale
was executed and registered as
No. 3825/1985. They claimed they
entered into possession and
exercised acts of ownership over
the land by fixing corner
pillars and constantly weeding
it and warding off trespassers.
The Plaintiffs stated further
that they applied for and
obtained a Land Title
Certificate from the Lands Title
Registry in 2007. They allege
the Defendants have wrongfully
entered portions of the land and
have put up unauthorized
structures and have refused to
quit. The Defendants denied the
claim and countered that the
land could not have been
purchased in 1961 in the
Plaintiffs’ name as two of them
were minors and one was unborn
then. The Defendants claimed
they acquired their lands from
the Tsie We Family of the Kle
Musum Quarter and they have been
in undisturbed possession for
periods over 12 years as a
result the Plaintiff action was
not maintainable by reason of
laches and acquiescence and the
Limitation Decree, NRCD 54.They
also pleaded that the Land Title
Certificate was obtained by
fraud and mistake. The
Plaintiffs in their Reply filed
on 12 December 2007 stated in
paragraph 4 that their late
father sued the Defendants
before the elders of the Kle
Musum Quarter and then before
the CDR in 1981 and in all these
cases it was found that the
Defendants have trespassed on
their land. The High Court
upheld the Plaintiffs’ claim and
granted all their reliefs. The
Defendants being dissatisfied
filed an appeal before the Court
of Appeal on the grounds that:
The Court of Appeal only
considered the first ground of
appeal and held in favour of the
Plaintiffs. The Court of Appeal
went on to hold that the appeal
was unmeritorious and having
come to that conclusion, it was
unnecessary to discuss any of
the other grounds of appeal. The
Plaintiffs have therefore filed
this further appeal to the
Supreme Court on the grounds
HELD
(1) we are of
the view that the trial judge
and the Court of Appeal erred in
failing to hold the Defendants
to be in adverse possession for
more than a period of 12 years
thus extinguishing the
Plaintiffs’ title if any in, the
land in dispute. From the
foregoing we hold that the
Plaintiffs’ action is statute
barred under Section 10(1) of
the Limitation Act,1972, NRCD
54. The appeal succeeds on this
ground.
(2) These
matters smacks of a fraudulent
manipulation of the process of
obtaining a registered title to
the land in dispute. The
Plaintiffs even claimed the
Plaintiffs father may have
facilitated the fraud as he
worked in the Lands Department
then, but no evidence was led on
that. From the forgoing it is
reasonable for this Court to
infer that Exhibit A was
obtained by fraud as the
document could not have been
executed in 1961 by the
Plaintiffs. Fraud is well known
to vitiate everything. Exhibit A
is therefore declared a nullity.
Accordingly the appeal succeeds
on this ground.
(3) From the
foregoing the Defendants are
entitled to their counterclaim,
accordingly the Court orders the
Land Registrar to cancel the
Land Title Certificate No. GA.
20047 From the foregoing the
appeal succeeds. The judgment
of the court of Appeal is
reversed. The Plaintiff ’s
action is dismissed. Judgment is
entered for the Defendants on
their counterclaim
STATUTES
REFERRED TO IN JUDGMENT
Limitation
Act, 1972, (NRCD 54)
National
Building Regulations 1995 L.
I. 1630
Land Title
Registration Act, 1986, PNDCL
152.
CASES
REFERRED TO IN JUDGMENT
Tuakwa v.
Bosom [2001-2002] SCGLR 61.
Majolagbe vs.
Labi [1959] GLR 190
Zabrama v.
Segbedzi [1991] 2GLR 221.
Treloar v.
Nute [1977] 1 All ER 230 at 234
Djin v. Musah
Baako [2007-2008] 1SCGLR 686
GIHOC
Refrigeration& Household
Products Limited vs. Hanna Assi
[2005-2006] SCGLR 459.
Klu v. Konadu
Apraku [2009] SCGLR 741
In re West
Coast Dyeing Industry LTD; Adams
v. Tandoh [1984-86] 2 GLR 561 a
Frimpong v. Nyarko [1999-2000]
1GLR 429 at 437.
Brown v.
Quarshigah [2003-2004] SCGLR 930
BOOKS
REFERRED TO IN JUDGMENT
DELIVERING
THE LEADING JUDGMENT
SOPHIA
ADINYIRA (MRS.) JSC:
COUNSEL
S. K. AMOAH
FOR THE DEFENDANTS/APPELLANTS/
APPELLANTS
.
SAM SETH
WOOD FOR THE PLAINTIFFS
/RESPONDENTS/RESPONDENTS.
SOPHIA
ADINYIRA (MRS.) JSC:
This is an
appeal from the judgment of the
Court of Appeal, Accra dated 16
February2012. The
Plaintiffs/Respondent
/Respondent (Plaintiffs), began
an action before The High Court
Accra on 17 May 2007, against
the Defendants/ Appellants/
Appellants (Defendants) jointly
and severally for the following
reliefs:
a)
A
declaration of title to all that
piece or parcel of land situate
lying and being at North Teshie
and bounded on the North by one
Mr. A. Laryea’s land measuring
900 feet more or less on the
South by A. Kanton’s land
measuring 900 feet more or less
on the East by the Vendor’s land
measuring 400 feet more or less
and on the Westby the Vendor’s
landmeasuring 900 feet more or
less and covering an approximate
area of 8.2 Acres.
b)
Recovery of possession
c)
Damages for trespass
d)
Perpetual injunction restraining
the Defendants, their servants,
agents, workmen and all those
claiming through them from
entering on to the land in
dispute and carrying out any
construction works on the land
or interfering with the land in
dispute in any manner
whatsoever.
The
Plaintiffs by their pleadings
claimed that the land in dispute
was acquired in their names by
their late father in 1961 from
Nii Klu Din the then acting
Mankrado of Teshie and an
indenture evidencing the sale
was executed and registered as
No. 3825/1985. They claimed they
entered into possession and
exercised acts of ownership over
the land by fixing corner
pillars and constantly weeding
it and warding off trespassers.
The
Plaintiffs stated further that
they applied for and obtained a
Land Title Certificate from the
Lands Title Registry in 2007.
They allege the Defendants have
wrongfully entered portions of
the land and have put up
unauthorized structures and have
refused to quit.
The
Defendants denied the claim and
countered that the land could
not have been purchased in 1961
in the Plaintiffs’ name as two
of them were minors and one was
unborn then. The Defendants
claimed they acquired their
lands from the Tsie We Family of
the Kle Musum Quarter and they
have been in undisturbed
possession for periods over 12
years as a result the Plaintiff
action was not maintainable by
reason of laches and
acquiescence and the Limitation
Decree, NRCD 54.They also
pleaded that the Land Title
Certificate was obtained by
fraud and mistake.
The
Plaintiffs in their Reply filed
on 12 December 2007 stated in
paragraph 4 that their late
father sued the Defendants
before the elders of the Kle
Musum Quarter and then before
the CDR in 1981 and in all these
cases it was found that the
Defendants have trespassed on
their land.
The High
Court upheld the Plaintiffs’
claim and granted all their
reliefs. The Defendants being
dissatisfied filed an appeal
before the Court of Appeal on
the grounds that:
i.
The
learned trial Judge erred in
failing to hold that the
Plaintiffs’ action is statute
barred,
ii.
The
learned trial Judge failed to
adequately consider the
Defendants’ case.
iii.
The
learned trial Judge erred in
upholding the Plaintiffs’ claim.
iv.
The
learned trial Judge erred in
failing to hold that the
Plaintiffs procured their Land
Certificate through fraud.
v.
The
Judgment is against the weight
of evidence.
The Court of
Appeal only considered the first
ground of appeal and held in
favour of the Plaintiffs. The
Court of Appeal went on to hold
that the appeal was
unmeritorious and having come to
that conclusion, it was
unnecessary to discuss any of
the other grounds of appeal.
The
Plaintiffs have therefore filed
this further appeal to the
Supreme Court on the grounds
that:
a)
The
Court of Appeal erred in holding
that the Plaintiffs
/Respondents’ action was not
barred by the Limitation Act,
NRCD54.
b)
The
Court of Appeal erred in failing
to make a determination on all
the other grounds of appeal
argued apart from the ground on
limitation.
c)
The
Court of Appeal erred in failing
to hold that the Plaintiffs
/Respondents procured their Land
Certificate through fraud.
d)
The
Judgment is against the weight
of evidence.
From the
grounds of appeal filed before
the Court Appeal and repeated
before us, as well as the
statement of case of the
parties, the salient issues that
arise for the determination of
the appeal before this Court
are:
1) Whether
the Defendants were in adverse
possession for a period of over
12 years and as a result the
Plaintiff’s action is caught by
the statute of limitation.
2) Whether
the Land Title Certificate was
obtained by fraud; and
3) Whether
the Defendants are entitled to
their counter claim.
The ground of
appeal relating to adverse
possession
Section 10of
the Limitation Decree, 1972,
NRCD 54 provides as follows:
“10.
Recovery of Land
(1) A person shall not
bring an action to recover a
land after the expiration of
twelve years from the date on
which the right of action
accrued to the person bringing
it or, if it first accrued to a
person through whom the first
mentioned claims to that person.
(2) A right
of action to recover land does
not accrue unless the land is in
the possession of a person in
whose favour the period of
limitation can run.
(3) Where a
right of action to recover land
has accrued, and before the
right of action is barred, the
land ceased to be in adverse
possession, the right of action
does not accrue until the land
is again taken into adverse
possession.
(4) For the
purpose of this Act, a person is
in possession of a land by
reason only of having made a
formal entry in the land.
(5) For the
purposes of this act, a
continual or any other claim on
or near a land does not preserve
a right of action to recover the
land.
(6) On the
expiration of the period fixed
by this Act for a person to
bring an action to recover land,
the title of that person to the
land is extinguished.
(7) For the
purpose of this section
“adverse possession” means
possession of a person in whose
favour the period of limitation
can run.”
The
Plaintiffs stated in Paragraph 5
of their statement of claim
that:
“5. The
Plaintiffs say that soon after
the purchase they entered into
possession and exercised overt
acts of ownership over this land
by fixing corner pillars
thereon, constantly keeping it
free of weeds and warding off
trespassers.”
The
Defendants in Paragraphs 4, 5,
and 6 of Amended Statement of
Defence stated:
“4. Defendants deny
paragraphs 5 of the statement of
claim and say that after they
had acquired their respective
parcels of land from the Tsie We
Family of the Kle Musum Quarter
they have in undisturbed
possession of same for periods
ranging from 12 years and above.
5. Defendants say in
further answer of the said
paragraph 5 that they have all
developed their lands without
any let or hindrance and have
been living thereon and have
been paying bills in respect of
same for several years on.
6. Defendants will
therefore contend that the
Plaintiffs’ action is not
maintainable by reason of laces
and acquiescence and the
Limitation Decree, NRCD 54.”
The
Plaintiffs in their Reply stated
in paragraphs 4 and 5 that:
“4. The Plaintiffs deny
paragraph 4 of the statement of
defence and in reply say that
during the lifetime of their
late father he sued the
Defendants in respect of this
land. First before the elders of
the Kle Musum Quarter and
secondly the C.D.R during the
time of the 1981 Revolution and
in all these cases they found
that their late father had a
valid registered document
covering the land and that the
defendants were trespassers and
should quit the land but they
failed to quit the land and
continued to stay there by
force.
5. The Plaintiffs say
further that the Kle Musum
Wulomo or Fetish head also gave
them notices to quit the land
but they again failed to quit.”
The Court of
Appeal in dealing with this
ground of appeal upheld the
Plaintiff’s plea of an
arbitration award binding on the
Defendants. The reasoning of
Kusi Appiah JA delivering the
judgment of the Court was:
“To resolve
the issue whether or not the
learned trial judge erred in law
when he failed to hold that the
Plaintiffs were caught by
Section 10(1), (5) and (6) of
the Limitation Act, I think it
is necessary to examine the
nature of the defendant’s
occupation on the disputed land.
The crucial question is: Can the
defendants’ occupation on the
disputed land amount to adverse
possession? In this case the
evidence on record indicates
that the defendants were sued by
the plaintiffs’ late father in
respect of the subject property
before the Elders of Kle Musum
Quarter and the CDR in 1981.
It is also
not in dispute that in both
cases the arbitrators found the
defendants to be trespassers and
ordered them to vacate the land
but they failed so to do and
continued to stay on the land by
force.
Such
occupation would not qualify as
adverse possession.
…Consequently we hold that the
legal rights the defendants were
seeking to be protected under
Section 10 (1) of the Limitation
Act supra did not really exist.
In the result, the contention of
the defendant that the
plaintiffs claim was statute
barred was grievously
misconceived and the trial judge
was right in holding so.”
It is true
that until by length of time the
Limitation Act shall have
conferred title on a squatter,
he may be turned out by a legal
process. It is therefore
incumbent on us 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
ourselves that on the balance of
probability the conclusions of
the court below was reasonable
or amply supported by the
evidence. See Tuakwa v. Bosom
[2001-2002] SCGLR 61.
The 2nd
Plaintiff, Layea Nmai Boi who
gave evidence for himself and on
behalf of his two siblings did
not give any evidence on the
arbitration that they pleaded.
It was David Nii Adjetey Adjei,
PW1, who during
cross-examination mentioned a
case before a CDR. At page 35 of
the record is the following
excerpt:
“Q. The
defendants have not trespassed
on plaintiffs land
A.
Plaintiffs’ father told me some
people had entered on his land
and sent them to the CDR
Q. Were you
present at the CDR
A. That is
what he told me
Q. The
defendants never appeared before
any CDR
A. That is
what the owner told me
Q. Did he
tell you these are the
defendants who[m] he sent to the
CDR
A. I don’t
know.
Q. Your
evidence is not true that the
land is for the plaintiff
A. It is
correct.”
On the part
of the Defendants, Sowah Nortey
Kumah, the 13th
Defendant who gave evidence for
himself and the 12 other
Defendants, denied being
summoned for any arbitration. He
said in his evidence in chief,
at page 43 of the record of
proceedings, categorically that:
“We have not
been summoned before by the Kle
Musum Quarter at (sic) CDR. No
motion to quit has been served
on us”
This piece of
evidence was unchallenged.
From the
above excerpts it is clear that
the Plaintiffs were unable to
lead the needed evidence to
prove the existence of a valid
arbitration between their father
and the defendants or their
privies concerning their
occupation of the land in
dispute. PW1’s account is mere
hearsay; he did not even know
whether the defendants were the
persons that the plaintiffs’
father said he sued before the
CDR.
We are
therefore surprised by the
conclusion reached by their
learned lordships on this issue.
What their Lordships referred to
in their judgment as evidence is
not evidence but the pleadings
by the Plaintiffs in paragraphs
4 and 5 of their Reply referred
to above; which even the
Plaintiffs by themselves did not
recite when giving evidence. It
is trite law that pleadings are
not evidence. To hold otherwise
negates the requirements of
proof as provided in the
Evidence Act and the well-known
cases of Majolagbe vs. Labi
[1959] GLR 190; and
Zabrama v. Segbedzi [1991] 2GLR
221.
The finding
by the Court of Appeal is not
supported by the evidence. In
the circumstances we hold that
the Court of Appeal erred in
holding that there was a valid
arbitration upon which they gave
judgment for the Plaintiffs. We
accordingly reverse that
finding.
Having
disposed of the issue on
arbitration we now turn to the
issue of adverse possession.
Adverse possession must be open,
visible and unchallenged so that
it gives notice to the
legal/paper owner that someone
is asserting a claim adverse to
his.
The
Defendants by their pleadings
and evidence said they were in
effective occupation of the land
in dispute. They have built
houses and structures on the
land in which they live and
carry on their businesses
respectively. They all claimed
they acquired their respective
parcel of land from the Tsie We
family of the Kle Musum Quarter
and have been in undisturbed
possession from periods ranging
from 12 years and above. DW1
Abraham Nmai Adjei gave evidence
that the Tsie We family of
Teshie gave the land to the
Defendants.
The
Defendants tendered some
indentures and receipts of
property rates and utility
bills. In our view the only
evidential value of the receipts
and utility bills is to
establish the residential
addresses and occupation by the
Defendants on the land in
dispute. The indentures were
also merely stamped and not
registered. Hence the Defendants
could not show any valid
document of title to the land,
except that they had customary
grants from the Tsie We family
and had been in uninterrupted
occupation ranging over a period
of 12 years.
The
Plaintiffs on the other hand
rely on an indenture Exhibit A
and a Land Title Certificate No.
GA. 20047, Exhibit B in proof of
their ownership of the land.
Even if, for purposes of
argument, the Plaintiffs
purchased the land in dispute in
1961, Exhibit A the indenture
covering the sale, became
effective when it was registered
in 1985 [The genuineness of
Exhibit A would be determined
later in the judgment] They were
not in effective occupation
apart from claiming they have
put corner pillars on the land
which they weeded at times and
warded off trespassers.PWI said
the land was bushy. From the
period 1985 until 2007 when the
Plaintiffs commenced their
action the evidence shows the
Defendants were in effective
uninterrupted possession of a
portion of the land in dispute.
Section 10 of
the Limitation Act reflects
substantially the provisions of
English Statutes of Limitation
and the common law. In
Treloar v. Nute [1977] 1 All ER
230 at 234 (cited by Atuguba
JSC in Djin v. Musah Baako
[2007-2008] 1SCGLR 686 at 699)
Sir John Pennycuick stated thus:
“It is in no doubt that
under the 1939 Act as under the
present law, the person claiming
by possession must show either
(1) discontinuance by the paper
owner followed by possession or
(2) dispossession or, or as it
is sometimes called ‘ouster’ of
paper owner. Clearly possession
concurrent with paper owner is
insufficient. On the other hand,
where the other person claiming
possession establishes
possession in the full sense of
exclusive possession that by
itself connotes absence of
possession on the part of the
paper owner and I doubt if there
is any real difference in the
concept of taking possession and
the concept of dispossession.
The law as we understand
it… is that if a squatter takes
possession of land belonging to
another and remains in
possession for 12 years to the
exclusion of the owner, that
represents adverse possession
and accordingly at the end of 12
years the title of the owner is
extinguished. That is the plain
meaning of the statutory
provisions, which I have quoted
and no authority has been cited
to us. The simple question is:
did the squatter acquire and
remain in exclusive possession?”
In the
circumstances assuming the
Defendants’ title is bad, their
adverse possession of the land
for a period of twelve years and
over confers on them possessory
rights by virtue of section 10
of the Limitation Act.
There is
another issue that we have to
deal with in relation to the
Plaintiffs’ contention that the
Defendants were not in adverse
possession. Counsel submitted
that the Defendants erected
their buildings on the land
without obtaining building
permits as required by
Regulation 1 of the National
Building Regulations 1995 L.
I. 1630 as such the Defendants
were in unlawful possession
which cannot be validated by a
defense under the Limitation
Act.
We do not
agree with this proposition as
the failure to obtain a building
permit before putting up a
building has its own sanctions
prescribed by law. On the facts
of this case, we think the
rights conferred by section 10
of the Limitation Act can be
enjoyed by a person who remains
in adverse possession of land
over a period of 12 years
irrespective of the fact that
they entered the land and
developed same without a
building permit. The title
conferred by the Limitation Act
is prescriptive and is usually
conferred on squatters who
obviously cannot and would not
apply for a building permit as
their initial entry on the land
is by way of trespass. Until by
length of time the Limitation
Act shall have confirmed his
title, the squatter may be
turned out by legal process.
In our view
the Plaintiffs were ‘paper
owners’ who have been
dispossessed by the Defendants
who had built houses and were in
effective and actual possession
of a portion of the land. Some
of the Defendants put up theirs
as far back as 1959, 1971 1977,
1982, without let or hindrance
from the plaintiffs. See page 39
of the record.
In terms of
sections section 10(1) and (6)
of the Limitation Act, 1972,
(NRCD 54) an adverse possessor
of land in relation to which the
original owner’s rights have
been extinguished, gains a title
equivalent to the title
extinguished. See GIHOC
Refrigeration& Household
Products Limited vs. Hanna Assi
[2005-2006] SCGLR 459.
Upon the
evidence we find that the
defendants having been in
undisturbed possession of the
land for a period of more than
12 years cannot be dispossessed
by the Plaintiffs whose title
has been extinguished by the
operation of the Limitation Act.
The Defendants are entitled to a
declaration of possessory title.
See GIHOC case supra.
We however
declare that the possessory
rights of the Defendants herein
are restricted to only the
portion that they have built on
and occupied.
The interest
acquired by prescription or the
Limitation Act is an
overridinginterest which is
further protected under the
Land Title Registration Act,
1986, PNDCL 152. See section
18of the Land Title Registration
Act which provides:
18.
Conclusiveness of the register.
1)
The
Land Register is conclusive
evidence of the title of the
proprietor of the land appearing
on the register
2)
Subsection (1) does not
affect a right or an
interest in land acquired under
the law relating to prescription
or the Limitation Act, 1972, but
where title to registered land
has been acquired under the law
relating to prescription or the
Limitation Act, 1972, the
registered proprietor shall hold
the land on trust for the person
who claim to have acquired that
title.[The emphasis mine]
Further,Section 46 (1) (f) and
(g) of the same Act provides;
(1)
Unless
the contrary is recorded in the
land register a land or an
interest in land registered
under this Act is subject to any
of the following overriding
interests whether or not they
are entered in the land register
as may from the time being
subsist and affect that land or
interest:
… … …
(g) rights, whether
acquired by customary law or
otherwise, of a person in actual
occupation of the land except
where enquiry is made of that
person and the rights are not
disclosed;
(f) subject to this
Act, rights acquired or in the
course of acquisition by
prescription or under the
Limitation Act. 1972.[The
emphasis mine]”
In Klu v.
Konadu Apraku [2009] SCGLR 741
at 746, the Supreme Court
held per Atuguba JSC that:
“The trial judge found
that it is the Plaintiff who put
up the outhouse on the said
land. In the circumstances,
assuming his title from Nii Odai
Ayiku IV the Nungua Manche is
bad, yet his adverse possession
of the said land for up to and
even over twelve years confers
on him possessory title by
reason of the provisions in
section 10 of the Limitation
Act, 1972, NRCD 54. It should be
noted that such acquisition of
title prevails against a
registered proprietor of land
under the Land Title
Registration Act, 1986, PNDCL
152, by virtue of section 18 (1)
and (2) thereof.”
Given the
evidence on record, , we are of
the view that the trial judge
and the Court of Appeal erred in
failing to hold the Defendants
to be in adverse possession for
more than a period of 12 years
thus extinguishing the
Plaintiffs’ title if any in, the
land in dispute.
From the
foregoing we hold that the
Plaintiffs’ action is statute
barred under Section 10(1) of
the Limitation Act,1972, NRCD
54. The appeal succeeds on this
ground.
The ground of
appeal relating to whether the
Plaintiffs procured their Land
Title Certificate by Fraud and
or mistake
Counsel
submits that the Court of Appeal
erred in failing to hold that
the Plaintiffs procured their
Land Certificate through fraud.
He did not refer to the
pleadings on mistake so we take
it that he has abandoned that.
The
Defendants pleaded in paragraphs
7, and 7(a) of their statement
of defence that:
7. Defendants
deny paragraphs 6, 11, 12, 13
and 14 of the statement of claim
and say that Plaintiffs’
application for registration of
their land at the Land Title
Registry and the Registration
were all fraudulent.
7(a)
PARTICULARS OF FRAUD
1)
Failing to disclose to the Land
Title Registry that the
Defendants were in adverse
possession of the land
Plaintiffs were seeking to
register.
2)
Supporting the application for
registration with a forged deed
of sale.
3)
Making
the Chief Registrar of Lands and
the Land Title Registry believe
that the Plaintiffs have a
registrable interest in the land
occupied by the Defendants when
indeed they have none.
Counsel
submits that the indenture,
Exhibit A that the Plaintiffs
hold in respect of the disputed
land that was used by them to
procure the Land Title
Certificate, Exhibit B. was a
forged document. His reason
being the Plaintiffs who on the
face of the indenture were said
to have executed the same on 22
December 1961 were either minors
or unborn as at the date the
said exhibit was executed.
Counsel for
the Plaintiffs did not answer
this point in his statement of
case. In fact he could not as
Laryea Nmai Boi, the 2rd
Plaintiff’s said in evidence
that he was unborn then. He was
born on 31 October 1964 and his
elder sister was older than him
by 5 years, so that the eldest
of the Plaintiffs was 2 or 3 at
the time Exhibit A was executed.
The evidence
of the Plaintiff and PW1 that
their father bought the land for
them was accepted by the trial
judge as an advance of a father
to his children. This finding is
an error in law, as on the face
of the indenture, Exhibit A, the
Plaintiffs were the purchasers
who in 1961 signed and executed
the document. Their father
Ebenezer Nmai Boye only signed
the jurat. This raises suspicion
as the 2nd Plaintiff
was not born and his siblings
were at best toddlers in 1961 as
according to his own evidence
his elder sister is older by him
by 5 years.
These matters
smacks of a fraudulent
manipulation of the process of
obtaining a registered title to
the land in dispute. The
Plaintiffs even claimed the
Plaintiffs father may have
facilitated the fraud as he
worked in the Lands Department
then, but no evidence was led on
that.
From the
forgoing it is reasonable for
this Court to infer that Exhibit
A was obtained by fraud as the
document could not have been
executed in 1961 by the
Plaintiffs. Fraud is well known
to vitiate everything. Exhibit A
is therefore declared a nullity.
Accordingly the appeal succeeds
on this ground.
The issue
raised n this appeal is whether
the Defendants are entitled to
their counterclaim.
The
Defendants in their amended
statement of defence
counterclaimed for: ‘An order
for the cancellation of Land
Certificate No. GA 20047 issued
in favour of the Plaintiffs by
the Land Title Registry.”
Counsel
submits that Exhibit A is
fraudulent because it was not
made by the Plaintiffs and as
such the same could not be used
to procure the Land Certificate.
Having made a
finding that Exhibit A was
obtained by fraud, this Court is
duty-bound to quash whatever had
been done on the strength of
that fraud. See In re West
Coast Dyeing Industry LTD; Adams
v. Tandoh [1984-86] 2 GLR 561 at
605; and Frimpong v.
Nyarko [1999-2000] 1GLR 429 at
437.
The Land
Certificate, Exhibit B that was
issued by the Land Title
Registry based upon Exhibit A,
is also tainted, andhas to be
set aside. See Brown v.
Quarshigah [2003-2004] SCGLR 930and
section 122(1) of the Land Title
Registration Act, which
provides:
122.
Rectification by Court
“(1) Subject to
sub-section (2), the Court may
order the rectification of the
land register by directing that
a registration where it is
satisfied the cancellation or
the amendment of the
registration has been obtained,
made or committed by fraud.”
From the
foregoing the Defendants are
entitled to their counterclaim,
accordingly the Court orders the
Land Registrar to cancel the
Land Title Certificate No. GA.
20047.
Obiter: By
virtue of Section 18(2) of the
Land Title Registration Act, had
the Land Title Certificate been
regularly acquired, the
Plaintiffs would have held in
trust for the Defendants the
areas affected by the Limitation
Act.
From the
foregoing the appeal succeeds.
The judgment
of the court of Appeal is
reversed. The Plaintiff ’s
action is dismissed. Judgment is
entered for the Defendants on
their counterclaim.
(SGD)
S. O. A. ADINYIRA (MRS)
JUSTICE OF THE SUPREME COURT
(SGD) W. A. ATUGUBA
JUSTICE OF THE SUPREME COURT
(SGD) ANIN
YEBOAH
JUSTICE OF THE SUPREME COURT
(SGD) N. S. GBADEGBE
JUSTICE OF THE SUPREME COURT
(SGD) V. AKOTO BAMFO
(MRS)
JUSTICE OF THE SUPREME COURT
COUNSEL
S. K. AMOAH
FOR THE DEFENDANTS/APPELLANTS/
APPELLANTS.
SAM SETH
WOOD FOR THE PLAINTIFFS
/RESPONDENTS/RESPONDENTS
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