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Land - Ownership - Declaration
of title - Damages for
trespass - Land Title
Certificate - Wether or not the
said certificate was tainted by
fraud - Identity of the disputed
land -
HEADNOTES
The respondent averred that, he
acquired the disputed land from
the Asere Mantse Nii Akramah II
in 1964 and was given a
document. He also acquired a
Land Title Certificate in 1992.
The appellant commenced building
on the said land and the
respondent reported the
appellant’s alleged unlawful
building to the Accra
Metropolitan Assembly and the
Land Title Registry. The
appellant however continued
building, and the respondent
sued the appellant in 1996 in
the Circuit Court Accra
According to the appellant, he
acquired the land from the
allodial owners of the land
initially from the Asere Mantse
and when he was challenged, he
then obtained a deed of lease
from the acting head of the
Nikoi Olai Stool family of Asere
Djorshei in 1986. The appellant
alleged that he had been in
effective possession since 1972
and that the respondent was
aware of the appellant’s said
possession and registration of
his interest before he allegedly
registered his own at the Land
Title Registry. The appellant
explained further that he
actually acquired the land in
1972 from the Asere Mantse Nii
Akramah II, but no document was
issued to him even though he was
immediately placed in
possession. It was further
alleged that in 1974, in the
absence of the substantive
Mantse, the appellant was
directed to the then Asere
elders of the stool, who
executed an indenture in favour
of the appellant in respect of
the land. In 1986 the appellant
was challenged by the Nikoi Olai
family which claimed ownership
of the entire area. The
appellant thus obtained a fresh
conveyance of the land from the
said family and registered the
indenture at the lands
department, The trial Circuit
Court entered judgment for the
appellant, on his counterclaim,
whilst the respondent’s claim
was dismissed. An appeal by the
Respondent, therein appellant to
the Court of Appeal resulted
into the setting aside of the
Circuit Court judgment and entry
of judgment for the respondent.
The appellant felt aggrieved
with the decision of the Court
of Appeal which reversed the
judgment of the trial Circuit
Court and was granted special
leave by this court to appeal
against the Court of Appeal
decision.
HELD :-
Under these circumstances, I
think it is prudent for this
court to determine whether in
truth and in fact, the parties
are really disputing over the
same parcel of land. It is only
when this matter has been
determined scientifically that
the other issues of priority and
or the “nemodat quod non
habet principle” and the
other provisions concerning the
Land Title Registration Law
would be considered. This will
help prevent a total failure of
justice. In that respect, I am
of the opinion that in order to
do justice to the parties, this
court should order a survey plan
with clear instructions to the
parties to file survey
instructions using their
respective land documents.
STATUTES REFERRED TO IN JUDGMENT
Courts Act, 1993 Act 459
Land Title
Registration Act, 1986 (PNDCL
152)
CASES REFERRED TO IN JUDGMENT
Okpareke v Egbuoho, 7 WACA
page 53
Sah v Darku [1987-88] I
GLR 123 CA,
Adwubeng v Domfeh
[1996-97] SCGLR 660
Effisah v Ansah
[2005-2006] SCGLR 943
Tuakwa v Bosom [2001-2002]
SCGLR 61
Dexter Johnson v Republic
[2011] 2 SCGLR at 601
Charles Lawrence Quist,
substituted by Diana Quist v
Ahmed Danawi , Suit No. CA
J4/63/2013 dated 28th
November 2014
Isaac KwasiOwusu
substituted by AduBafour v
KwabenaOfori& others Suit
No.J4/22/13 dated 23rd
December 2014.
BOOKS REFERRED TO IN JUDGMENT
DELIVERING THE LEADING JUDGMENT
DOTSE JSC:
COUNSEL
GEORGE ESHUN ESQ. FOR THE
DEFENDANT/RESPONDENT/APPELLANT.
SAM WOOD ESQ. FOR THE
PLAINTIFF/ APPELLANT/RESPONDENT
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JUDGMENT
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DOTSE JSC:
This is an appeal by the
Defendant/Respondent/Appellant,
hereinafter referred to as the
Appellant, who initially
obtained judgment at the trial
Circuit Court but which judgment
was reversed by the Court of
Appeal following an appeal by
the
plaintiff/Appellant/Respondent,
hereinafter referred to as the
Respondent.
FACTS OF THE CASE
The respondent averred that, he
acquired the disputed land from
the Asere Mantse Nii Akramah II
in 1964 and was given a
document. He also acquired a
Land Title Certificate in 1992.
The appellant commenced building
on the said land and the
respondent reported the
appellant’s alleged unlawful
building to the Accra
Metropolitan Assembly and the
Land Title Registry. The
appellant however continued
building, and the respondent
sued the appellant in 1996 in
the Circuit Court Accra for a
declaration of title to land,
damages for trespass, an
injunction restraining the
appellant from interfering with
the land and recovery of
possession of the disputed land.
The appellant on the other hand
denied the respondent’s claims
and challenged the validity of
the title certificate,
alleging that the said
certificate was tainted by
fraud. According to the
appellant, he acquired the land
from the allodial owners of the
land initially from the Asere
Mantse and when he was
challenged, he then obtained a
deed of lease from the acting
head of the Nikoi Olai Stool
family of Asere Djorshei in
1986. The appellant alleged that
he had been in effective
possession since 1972 and that
the respondent was aware of the
appellant’s said possession and
registration of his interest
before he allegedly registered
his own at the Land Title
Registry.
The appellant explained further
that he actually acquired the
land in 1972 from the Asere
Mantse Nii Akramah II, but no
document was issued to him even
though he was immediately placed
in possession. It was further
alleged that in 1974, in the
absence of the substantive
Mantse, the appellant was
directed to the then Asere
elders of the stool, who
executed an indenture in favour
of the appellant in respect of
the land. In 1986 the appellant
was challenged by the Nikoi Olai
family which claimed ownership
of the entire area.
The appellant thus obtained a
fresh conveyance of the land
from the said family and
registered the indenture at the
lands department.
The appellant thus
counterclaimed for a declaration
of title to the land, an order
that the respondent’s land title
certificate was obtained by
fraud, an order for the
cancellation of the respondent’s
certificate and damages for
trespass.
The trial Circuit
Court entered judgment for the
appellant, on his counterclaim,
whilst the respondent’s claim
was dismissed. An appeal by the
Respondent, therein appellant to
the Court of Appeal resulted
into the setting aside of the
Circuit Court judgment and entry
of judgment for the respondent.
The appellant felt aggrieved
with the decision of the Court
of Appeal which reversed the
judgment of the trial Circuit
Court and was granted special
leave by this court on the 5th
day of April 2011 to appeal
against the Court of Appeal
decision.
It is instructive to note that,
in granting the appellant
special leave to appeal, the
Supreme Court stated the
following as the reasons why it
granted the special leave to
appeal:
“It is our view that the issues
sought to be raised by the
Applicant’s appeal concerning
the provisions of the Land Title
Registration Act merit
authoritative consideration and
determination by the court.
Consequently, we are inclined to
grant the application for
special leave to appeal and we
hereby do so.”
Following the grant of the
special leave, the appellant
filed the following grounds of
appeal against the Court of
Appeal judgment.
Grounds of Appeal
1. The Court of Appeal
erred in not considering the
effect of the Lease made between
the Nikoi Olai Stool Family of
Asere and the
Defendant/Respondent/Appellant
herein dated 8th
March 1986.
2. The Court of Appeal
erred in not considering the
provisions of sections 13 and 46
(1) (f) of the Land Title
Registration Act, 1986 (PNDCL
152) which required the
preparation of a list of all
registered interests in land and
required the Chief Registrar of
Land to inquire from the Lands
Commission, about transactions
on lands he intends to register
prior to the issuance of Land
Certificates.
3. The Court of Appeal
did not adequately consider the
long period of
occupation/possession of the
Applicant herein.
IDENTITY OF DISPUTED LAND
Having stated the grounds of
appeal, I deem it expedient to
comment on how the Court of
Appeal dealt with the resolution
of the issue of the identity of
the land and consider how that
issue affects the resolution of
the instant appeal.
On the identity of the land, the
Court of Appeal, speaking
through Kusi-AppiahJ.A, in a
unanimous decision of the Court,
delivered on 20th May
2010, stated as follows:-
“On the issue of whether the
plaintiff (herein respondent)
succeeded in proving the
identity of the disputed land,
it appears to me that the
position taken by the trial
Judge was that on the peculiar
facts of the case (i.e. proving
the identity of the
subject-matter as well as
establishing all boundaries),
the identity of the land was not
in dispute. This explains why
the trial Judge delivered
himself in paragraph 2 of this
judgment at page 182 of the
record as follows:-
“I must say that the
description of the land as
depicted in Exhibit “B” appears
to be sufficient enough to
absolve the plaintiff from the
evidential duty of showing
positively the dimensions and
indeed the identity of his land
especially when he claims to be
entitled to declaration of title
and an injunction against the
defendant.”
I am in agreement
with the learned trial Judge
that the identity of the subject
matter was not in dispute.
Indeed paragraph 1 to 4 of the
amended claim were specifically
answered by paragraph 2, 3, 4,
5, 6, 7 and 8 of the amended
defence. And the clear
implication is that the
plaintiff and defendant were “ad
idem” as to the identity of the
land in dispute.”
Continuing further, and basing
themselves on a WACA case
Okpareke v Egbuoho, 7 WACA page
53 and Sah v Darku
[1987-88] I GLR 123 CA, the
C/A stated as follows:-
Guided by this
authority, I find the identity
of the disputed land was one of
agreed fact. It was agreed upon
by both parties in their
evidence at the trial.
Consequently, the trial court
was bound by law to have
accepted this agreed fact as
established without any proof.”
I have verified the above
statements and references
attributed to the learned trial
Judge, and I have found them to
be correct as per the record. I
have also verified the averments
contained in the statement of
claim and defence referred to by
the Court of Appeal.
In those averments, the
appellant appeared certain that
the disputed land is one and the
same land that he was disputing
with the respondent. It is
therefore clear that the parties
were “adidem” as to the identity
of the land.
Concluding their observations on
this issue of identity of the
land, the Court of Appeal, per
Kusi-Appiah J.A delivered
themselves thus:-
“Admittedly, the courts have
consistently refused to declare
title in any claim for land when
the land cannot or has not been
clearly identified. But as a
matter of fact, the contention
that a party must prove the
identity of the land in a land
suit with certainty to enable a
court decree title does not
mean mathematical identity or
precision. See JASS Co. Ltd &
Another v Appau & Another.
In the instant appeal, we hold
that the trial Judge having held
earlier on in his judgment that
the identity of the land between
the parties was not in dispute
(see page 181 of the record
supra), it did not lie in his
mouth to resurrect an issue
which by his own findings was
dead and buried (i.e. the
plaintiff’s original Indenture
and the Land Title Certificates
– Exhibits “A” & “B”
respectively) and hold otherwise
as he did.”
Learned counsel for the
appellant, in his written
statement of case, spent a
considerable time on the issue
of the required standard of
proof in a civil case, such as
the instant land suit. Learned
counsel referred to the Supreme
Court cases of Adwubeng v
Domfeh [1996-97] SCGLR 660
and Effisah v Ansah
[2005-2006] SCGLR 943 in
which the Supreme Court held
that proof in all civil actions
without exception, is proof by a
preponderance of probabilities,
and not proof beyond reasonable
doubt.
Based on the above principle,
learned counsel for the
appellant contended that since
both parties did not call their
respective vendors, it was
incumbent on the Court to
critically examine the documents
of title upon which the parties
relied.
In respect of the respondent, he
relied on exhibits “A” and “B”
whilst the appellant relied on
exhibits “3” and “4”
respectively.
Learned counsel for the
appellant then argued
strenuously that, it was
therefore incumbent upon the
learned trial Circuit Judge to
have examined the respective
documents of the parties to find
out whether the parties are
litigating over the same parcel
of land or not. This matter
appears to me to be very
critical in the resolution of
this appeal.
In my opinion, it was perfectly
legitimate for the learned trial
Judge to have embarked upon such
an exercise. However, at the
point when he discovered that it
appeared the respondent’s land
documents did not correspond
with the land documents of the
appellant, he ought to have
amended his findings in respect
of the identity of the disputed
land stated supra.
I believe that it was this
difficulty that led the Court of
Appeal to conclude thus:-
“It is significant to note that
the two documentary conveyances
from Nii Akramah II, Asere
Mantse and Nikoi Olai stool
family of Asere as Exhibit “3”
and “4” respectively without
further evidence makes it
difficult for the court to
ascertain which of the two
grantors was the real owner of
the land in dispute.
In the absence of any
cogent and credible evidence to
ascertain which of the two
grantors was the real owner of
the subject property, the court
will be compelled to accept the
first in point of time as the
real grantor who happened to be
Nii Akramah II, the Asere Mantse.
Having found that the parties
have a common grantor, the only
consideration for the court is
which of the two grantees must
have title to the land. It
should be who got the land first.”
Learned counsel for the
appellant, described the above
observations by the Court of
Appeal as erroneous. Instead,
learned counsel preferred the
layman approach of the learned
trial Judge who without any
scientific observations
concluded that the documents of
the respondent i.e. exhibits A &
B did not support and complement
each other hence was of the view
that the appellant must succeed
on his counterclaim.
SURVEY PLAN
I am of the considered opinion
that, the learned trial Judge
should have ordered a survey
plan of the disputed land with a
further order for the parties to
file survey instructions. This
would have afforded the parties
the opportunity to surrender
their respective site plans file
survey instructions and have
their site plans superimposed on
the land in dispute. This would
have shown whether the
respective land documents will
fall on the land on the ground,
which would have indicated
whether the respondent’s and or
appellant’s lands are indeed one
and the same land and therefore
the disputed land.
The question that comes to my
find is whether it is too late
in the day for that procedure to
be used? It is generally
accepted that an appeal is by
substance a rehearing of the
case. See Tuakwa v Bosom
[2001-2002] SCGLR 61 and
Dexter Johnson v Republic
[2011] 2 SCGLR at 601,
holding 3 thereof.
I am further strengthened in the
position I have taken by article
129 (4) of the Constitution
which provides as follows:-
“For the purposes of hearing and
determining a matter within its
jurisdiction and the amendment,
execution or the enforcement of
a judgment or order made on any
matter, and for the purposes of
any other authority, expressly
or by necessary implication
given to the Supreme Court by
this Constitution or any other
law, the Supreme Court shall
have all the powers, authority
and jurisdiction vested in any
court established by this
Constitution or any other law.”
See also section 2 (4) of the
Courts Act, 1993 Act 459 and
also Rule 23 (1) & (3) of
Supreme Court Rules 1996 C. I.
16
This court is then to be
considered as being clothed with
the powers of the trial court.
In that respect, what the
learned trial Judge should have
done by ordering a survey plan
of the land in dispute in order
to determine whether in reality
the site plans of the parties
really touch and concern the
disputed land ought to be done
by this court instead of
reverting it to the trial court.
This will provide for judicial
economy as has been done
recently by this court in the
following unreported Supreme
Court cases.
1.
Charles Lawrence Quist,
substituted by Diana Quist v
Ahmed Danawi , Suit No. CA
J4/63/2013 dated 28th
November 2014
2.
Isaac KwasiOwusu substituted by
AduBafour v KwabenaOfori& others
Suit No.J4/22/13 dated 23rd
December 2014.
Under these circumstances, I
think it is prudent for this
court to determine whether in
truth and in fact, the parties
are really disputing over the
same parcel of land. It is only
when this matter has been
determined scientifically that
the other issues of priority and
or the “nemodat quod non
habet principle” and the
other provisions concerning the
Land Title Registration Law
would be considered. This will
help prevent a total failure of
justice.
In that respect, I am of the
opinion that in order to do
justice to the parties, this
court should order a survey plan
with clear instructions to the
parties to file survey
instructions using their
respective land documents.
(SGD) V. J. M DOTSE
JUSTICE OF THE
SUPREME COURT
(SGD) G. T. WOOD (MRS.)
CHIEF JUSTICE
(SGD) J. ANSAH
JUSTICE OF THE SUPREME
COURT
(SGD) ANIN
YEBOAH
JUSTICE OF THE SUPREME COURT
(SGD) A. A. BENIN
JUSTICE
OF THE SUPREME COURT
COUNSEL
GEORGE ESHUN ESQ. FOR THE
DEFENDANT/RESPONDENT/APPELLANT.
SAM WOOD
ESQ. FOR THE PLAINTIFF/
APPELLANT/RESPONDENT .
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