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Land - Declaration of title –
Trespass - acquision
of Land Title Certificate -
Report of an alleged unlawful
building to the Accra
Metropolitan Assembly and the
Land Title Registry -
Challenging the validity of the
title certificate, alleging that
the certificate was tainted by
fraud - TwoIndentures,a
conveyance from the Asere Stool
of Accra acting through Nii
Akramah II to the Defendant, and
another Indenture from the Nikoi
Olai Stool family apparently in
respect of the same 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 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 hilst
the Plaintiff relied basically
on exhibits A and B, which are
Indenture and Land Title
Certificates respectively, the
Defendant on the other hand
relied on exhibits 3 and 4 which
are Indentures, one dated 15thSeptember
1974 which is a conveyance from
the Asere Stool of Accra acting
through Nii Akramah II to the
Defendant, and exhibit 4 is
another Indenture dated 8th March
1986 from the Nikoi Olai Stool
family apparently in respect of
the same land. -
HELD :-
We therefore conclude that the
Defendant has committed trespass
on the Plaintiff’s land, and in
that respect, the appeal must
fail. n the premises, we dismiss
the appeal herein, and in its
place, we affirm the judgment of
the Court of Appeal dated 20th May
2010. We therefore enter
judgment for the plaintiff on
his claims against the Defendant
as per his writ of summons
endorsed in the trial court.
STATUTES
REFERRED TO IN JUDGMENT
CASES REFERRED TO IN JUDGMENT
BOOKS REFERRED TO IN JUDGMENT
Plan and report namely,
exhibits CE1 and CEB
Land Title Certificate No.
GA 3359, Plot Numbers 313 and
314
DELIVERING THE LEADING JUDGMENT
DOTSE JSC:-
COUNSEL.
GEORGE ESHUN FOR THE
DEFENDANT/RESPONDENT/APPELLANT
SAM WOOD FOR THE
PLAINTIFF/APPELLANT/ RESPONDENT
ญญญญญญญญญญญญญญญญญญญญญญญญญญญญญญญญญญญญญ
JUDGMENT
DOTSE JSC:-
On the 21st
October 2015, this court in the
course of delivering judgment,
made the following orders in
order to bring finality to the
real issues in controversy.
1.
The Regional Surveyor,
(Survey and Mapping Division of
the Land’s Commission, Accra) is
hereby appointed to carry out a
survey of the land in dispute,
and superimpose the position of
any of the said land documents
or site plans of the parties
herein in relation to the actual
position of the disputed land on
the ground.
2.
Her Ladyship the Chief
Justice shall appoint a Circuit
Court to be the trial Court for
the purposes of carrying out the
order of this court.
3.
The Circuit Court shall
hear, record and transmit to
this court the evidence of the
Regional Surveyor after he had
carried out the survey as
aforesaid.
4.
Within 14 days of the
service of the order on the
parties, they shall file their
survey instructions to the
Surveyor and submit all relevant
land documents of title, and
site plans that were used at the
trial court.
5.
Each party to pay an
initial deposit of ข1,000.00
within 14 days of this order,
the payment to be made to the
Registry of this Court.
6.
The Circuit Court shall
submit to this court a full
report on the state of the case
by 22/12/2015.
Due to delays on the part
of the parties, the Regional
Surveyor, both counsel as well
as the Circuit Court itself, the
order referred to supra could
not be executed within the time
frame anticipated by this court.
However, on the 1st
of March 2017 this court
satisfied itself that all the
parties had been given certified
true copies of all the evidence
and cross-examination of the
Regional Surveyor’s
representative on the survey
plan that had been prepared and
tendered as exhibits CE1 and CEB
the report on the plan.
We now proceed to bring
closure in this case, based on
the evidence contained in the
Plan and report namely, exhibits
CE1 and CEB, as well as the
appeal record and the statements
of case of all the parties filed
before this court.
Our Observations Based On
Exhibit CE1, The Survey Plan Are
As Follows:-
Indeed, from all
indications, the various land
documents given by the
Plaintiff/Appellant/Respondent,
hereafter Plaintiff, to the
Surveyor and plotted on the plan
indicate quite clearly that
those documents relate to the
actual land in dispute as
depicted on the ground. Refer to
Legends 1, 3, 4, and 5 as shown
and indicated in exhibits CE1
and CEB.
Furthermore, Plaintiff’s
Land Title Certificate No. GA
3359, Plot Numbers 313 and 314
had been plotted almost exactly
into the disputed land on the
ground.
Indeed, it is quite
apparent from the survey plan
and further explained by the
Surveyor in his evidence that
the
Defendant/Respondent/Appellant,
hereafter Defendant, put up his
building to cover the entire
land space as covered by Plot
Number 314 on the Survey Plan.
On the Defendant’s
position, even though the land
he showed and indicated to the
Surveyor is marked yellow on the
survey plan, which is the same
land covered by Plaintiff’s plot
Number 314, the only land
document produced by the
Defendant to the Surveyor is
marked Magenta.
This as can be seen and
verified on the Survey Plan,
exhibit CE1 is quite removed
from the disputed land and is
therefore different and separate
from the disputed land.
Whilst the Plaintiff
relied basically on exhibits A
and B, which are Indenture and
Land Title Certificates
respectively, the Defendant on
the other hand relied on
exhibits 3 and 4 which are
Indentures, one dated 15th
September 1974 which is a
conveyance from the Asere Stool
of Accra acting through Nii
Akramah II to the Defendant, and
exhibit 4 is another Indenture
dated 8th March 1986
from the Nikoi Olai Stool
family apparently in respect of
the same land.
It must also be noted
that, whilst exhibit 3, has no
site plan attached to this
Indenture, exhibit 4 has, and
this was the only site plan that
the Defendant produced to the
Surveyor for the purpose of the
survey.
Furthermore, whilst
Defendant’s land documents in
exhibit 3, is without a site
plan, the document has a
description of the land as
follows:-
On northwest by vendors
land measuring 100 feet, on the
South East by vendors land,
measuring 100 feet, on the North
East by a proposed road
measuring 70 feet and on the
South West by Methodist Church
Property measuring 70 feet more
or less. The Vendor mentioned
therein must be a reference to
the Asere Stool who incidentally
are the Plaintiff’s vendors as
well. It must be noted that the
land on which this Methodist
Church property stands belongs
to the Plaintiff herein.
On the other hand, the
description of the land as per
exhibit 4, which has a site plan
attached indicates that the land
shares boundary with the Nikoi
Olai family on 3 sides and a
proposed road as the 4th
side. Furthermore, the Methodist
Church property is visible as it
is indicated on this site plan,
but is far removed from the land
denoted, by the description.
This therefore confirms the
findings of the Surveyor that,
the Defendant’s land is where it
has been plotted as the
Magenta, which is quite some
distance from the Plaintiff’s
land (see page 204 of the appeal
record).
The effect of this is
that, if the evidence of the
Surveyor is to be believed and
accepted as an expert then it
means that the Defendant has
indeed trespassed and built on
portions of the Plaintiff’s land
on Plot No. 314.
We have warned ourselves
that we need not necessarily
endorse the expert opinion of
the Surveyor if there are indeed
any legal reasons why we should
not. However, there are no
compelling reasons why we should
not accept the opinion in this
case. We therefore endorse the
survey plan and it’s report
tendered into evidence before
the Circuit Court as authentic
and one that has brought closure
to the real identity of the land
in dispute.
We are further
strengthened in our decision by
the following pieces of evidence
in the proceedings taken before
the Circuit Court when the
Surveyor tendered the Plan
without any objection and
testified to the following
effect:
The Surveyor indicated
that, the documents of the
Plaintiff particularly his land
title certificate exhibit B and
Indenture, exhibit A, overlap,
even though they are not exactly
the same. We have looked at the
plan, and we have found this to
be correct.
“The Surveyor put the matters in
dispute beyond per adventure
when he stated thus:-
Q. However, using the GPS with
high level of accuracy the
defendant’s land per his old
plan was edged magenta.
A.
Yes
Q. As a matter of fact the area
of the defendants land edged
magenta is nowhere near the area
of dispute.
A. That is so”
With the above
authoritative answers, the issue
as to whether the Plaintiff is
entitled to the reliefs he
claims against the Defendants
has been established beyond any
shadow of doubt.
From our observations of
the Survey Plan and confirmed by
the Surveyor’s evidence, we are
convinced that the Defendant
erected his building on the
Plaintiff’s land as depicted by
his land title certificate plot
Number. 314.
We therefore conclude that
the Defendant has committed
trespass on the Plaintiff’s
land, and in that respect, the
appeal must fail.
In the premises, we
dismiss the appeal herein, and
in its place, we affirm the
judgment of the Court of Appeal
dated 20th May 2010.
We therefore enter judgment for
the plaintiff on his claims
against the Defendant as per his
writ of summons endorsed in the
trial court.
(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) A.
YEBOAH
(JUSTICE OF THE
SUPREME COURT)
(SGD)
A. A.
BENIN
(JUSTICE OF THE SUPREME COURT)
COUNSEL
GEORGE ESHUN FOR THE
DEFENDANT/RESPONDENT/APPELLANT
SAM WOOD FOR THE
PLAINTIFF/APPELLANT/ RESPONDENT
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