|
J U D G M E N T
BROBBEY,
J.S.C.: This is an appeal
from the decision of the Court
of Appeal which had allowed an
earlier appeal from the judgment
of the Circuit Court at Tema.
The whole case concerned a piece
of land situated at Tema.
The facts
which gave rise to the
litigation were as follows: The
land in dispute belonged to the
Tema Development Corporation,
hereinafter referred to as the
TDC. The evidence on record
showed that it was leased to W.
C. Tandoh of West Coast Dying
Industries Ltd. He rented it to
the respondent who shall
hereafter be referred to as the
plaintiff. He later sold his
interest in the land to the
plaintiff. The plaintiff then
proceeded to register it at the
Lands Commission. The interest
of Tandoh dated from 1st
August 1974. Therefore, his
interest which he sold to the
plaintiff was dated from the
same 1st August 1974.
The land sold
to the plaintiff consisted of
three plots which were numbered
as LI 1, 2 and 3. The plaintiff
put up factories on two plots,
leaving the third plot for
future development. The
plaintiff later observed that
there were encroachments on his
land which he traced to the
appellants, who shall hereafter
be referred to as the
defendants. In fact the
defendants were constructing a
fence wall on the third plot.
When he did not succeed in
getting them to stop the
encroachments, he instituted
action in the Tema Circuit Court
claiming declaration of title to
the land and perpetual
injunction against the
defendants or their agents.
The Circuit
Court dismissed the plaintiff’s
action, entered judgment for the
defendants and added some other
reliefs that were not part of
those which the defendants
applied for. The plaintiff
appealed to the Court of Appeal
against the decision of the
Circuit Court. The Court of
Appeal allowed the appeal. It
was against the latter decision
that the defendants have
appealed to this court on the
following three grounds:
“(a) The
learned judges of the Court of
Appeal erred in failing to hold
that the respondent’s purported
acquisition of the land in
dispute was tainted with fraud.
(b) The
learned judges of the Court of
Appeal erred in relying on the
evidence of Thomas Aryitey (DW2)
which was conflicting in all
material particular.
© The
learned judgment is against the
weight of evidence.”
Counsel for
the defendants commenced their
case by arguing what he called
“additional grounds” which he
couched in the following terms:
“The learned justices of the
Court of Appeal erred by relying
on both the reply
and evidence
in chief of the
plaintiff/respondent which was
at variance and or
inconsistent with his statement
of claim.”
The points he
canvassed in support of that
contention were that in
paragraph 3 of the statement of
claim the plaintiff averred that
he acquired plots numbers 1, 2
and 3 from the TDC for a period
of 50 years from 1st
august 1974 and had same
registered as No 3061/1990.
However, in his reply to the
statement of defence, he
contended that the plots were
initially acquired by W. C.
Tandoh of West Coast Dying
Industries Ltd but he did not
obtain any lease from the TDC.
When the plots were sold to the
plaintiff, he prevailed upon the
TDC to prepare a lease in his
favour to cover them. For
referring to two different
sources of acquisition, counsel
for the defendants submitted
that there was inconsistency
which should have adversely
affected the case of the
plaintiff.
By all
indications, that was not a
serious argument. The DW2, a
witness called by the
defendants, was explicit that
the plots were first allocated
to W. C. Tandoh on 1st
August 1974. This fact was not
challenged by the defendants;
neither did they treat that
witness as a hostile witness.
There was no conflict whatsoever
in the evidence in so far that
the witness explained the
circumstances leading to the
initial acquisition by Tandoh
and eventual transfer to the
plaintiff. There was no merit in
that ground of appeal which is
consequently dismissed.
In support
of his submission, counsel for
the defendant referred to Odoi v
Hammond [1971] 1 GLR 375, R. T.
Briscoe v. Preko [1964] GLR 322,
S.C, Esso Petroleum Co. Ltd v
South Port Corp [1956] A.C. 218,
H.L. and Dam v Addo [1962] 2 GLR
200, SC. There is no doubt that
all the cases supported the
propositions of law for which
they were enunciated. They were
however irrelevant to the issues
for determination in the instant
case for the simple reason that
there was no conflict or
inconsistency on the record.
Even if W.C. Tandoh and the TDC
were not the same, the extent
that they affected the
acquisition was satisfactorily
explained by the defendants’ own
witness, the DW2.
The DW2 was
subpoenaed in his capacity as an
officer from the TDC: His
testimony therefore represented
the official position of the TDC
in respect of the disputed land.
It was next
argued on behalf of the
defendants that the Court of
Appeal erred in failing to hold
that the plaintiff’s acquisition
of the plots was tainted by
fraud. The basis of that
argument was that while the
documents of the plaintiff
referred to the fact that Tandoh
acquired the plots in 1974, the
plaintiff himself testified in
court that he first arrived in
Ghana in 1979 and therefore he
could not have acquired the plot
at a time when he was no where
near the shores of this country.
The answer
to that complaint was again
given by the evidence of the
defendants’ witness, the DW2. He
explained that the property was
first allocated to Tandoh. No
document was issued to evidence
the acquisition. When the
property was finally transferred
by Tandoh to the plaintiff, a
document was issued dating from
1974 to cover the period of
acquisition by Tandoh. What the
document sought to cover was the
period when Tandoh held the
property before he voluntarily
surrendered it to the plaintiff.
It was not a case of the TDC
giving the plots to a person who
was then non – existent in
Ghana. Tandoh, whose interest
was covered by the transfer
document, was in this country.
The TDC did not commit any fraud
in any shape or form. The
allegation of fraud was totally
baseless. The ground of appeal
based on fraud failed and is
dismissed.
The last
ground was that the judgment was
against the weight of evidence.
The law on this type of ground
of appeal is well settled to
require detailed elaboration
here. The defendants who relied
on that ground of appeal assumed
the onus of satisfying the
appellate court that the
evidence led in actual fact was
not strong enough to
substantiate the findings made
on it. This obviously required
examination of the entire record
in order to evaluate the
evidence in relation to the
conclusions of the court below.
In the
instant case, the undisputed
evidence was that the land was
first granted to W.C. Tandoh in
1974. It was in 1976 that the
defendants purported to have
acquired plot number three which
was part of that vast tract of
land. In terms of time, the
plaintiff’s acquisition predated
that of the defendants when
plaintiff’s acquisition was
traced from his immediate
grantor, W. C. Tandoh.
Secondly, the
evidence showed that the
plaintiff was granted three
plots, one of which was the plot
claimed by the defendants. When
the defendants started to
construct the fence wall around
the portion which they claimed
to have acquired from TDC, the
plaintiff was already in
occupation of the plots and had
constructed factories on the two
adjoining plots.. All these were
confirmed by the DW2, an
official from the TDC whom the
defendant called as their own
witness. Since the plaintiff’s
acquisition through Tandoh was
dated from 1974, at the time the
defendants claimed to have
acquired the third plot in 1976,
the TDC no longer had any plot
available and which could be
allocated to them. That was a
definite case of nemo dat quod
non habet.
The position
was clearly explained by the
evidence of the DW2 who told the
trial court in his testimony
that the allocation of plot
number three to the defendants
was an error. That was not just
an opinion. It was the factual
position in the office of the
TDC that was conveyed to the
court by the witness in his
official capacity. It is
incomprehensible that the
defendants would insist on
claiming that the TDC had given
the land to them and therefore
the court should decree title in
their favour when the
representative of the TDC itself
stated on oath that even if the
plot was allocated to the
defendants by an indenture, the
allocation was an error.
Significantly, he was not
challenged when he made that
assertion in the witness box and
therefore he did not have to
elaborate on it further. It was
quietly accepted by the
defendants.
Thirdly, the
defendants relied heavily on the
fact that demands were made for
the payment of ground rent which
the defendants duly paid. It was
then contended on their behalf
that payment of ground rent
evidenced the fact that the plot
was owned by them. There is no
doubt that on some occasions,
payment of ground rent may be
some evidence of ownership. It
is however not an invariable
rule that any payment of any
ground rent should be construed
as evidence of ownership. This
is because in this country,
caretakers and tenants can pay
ground rents and when that
happens, it will be wrong to
interpret the payment as
conclusive evidence of
ownership. The principle that
can be laid down on such
payments is that payment of
ground rent may in some
circumstances represent evidence
of occupation, control (by
caretakers) or in some cases
evidence of ownership (where
payment is by the landlord) but
it cannot be taken that payment
of any ground rent is conclusive
evidence of ownership. Such
payments merely raise a
presumption of ownership which
is rebuttable. The facts in this
case show without doubt that
even if demands were made by the
TDC on the defendants for ground
rents which were paid, the
demands and payments did not by
themselves establish ownership
in the defendants.
Lastly, the
defendants relied on the fact of
registration of the documents in
their favour to support their
claim that the property had been
transferred to them instead of
the plaintiff. This is one case
in which registration by the
defendants cannot not inure to
their benefit because at the
time of the registration, they
knew very well that the
plaintiff was already in
occupation and possession of the
three plots.
Whichever way
the facts are considered, the
decision of the Court of Appeal
was supported by the evidence on
record. The last ground of
appeal fails and is also
dismissed.
One point
that devastated the case of the
defendants was the evidence
given by their own witness, the
DW2. His testimony was clearly
against them to the extent that
he even described the
acquisition of the third plot to
them as an error. Rather, his
testimony supported the case of
the plaintiff. The law on this
issue is settled and it is this:
Where the evidence of a party
remains uncorroborated but that
of his opponent is corroborated
even by the witness of his
opponent, the court ought not to
accept the uncorroborated
version in preference to the
corroborated one. The only
exception to this rule is where
the court has or finds reason to
reject the corroborated
evidence. This principle was
first articulated by Ollennu J
(as he then was) in Tsrifo v Dua
Vlll [1959] GLR 63 at pages
64-65. It has been approved and
applied consistently in a number
of cases including Osei Yaw v
Domfeh [1965] GLR 418 at p 423,
a decision of the previous
Supreme Court. In the instant
case, there was no reason for
not preferring the corroborated
evidence in favour of the
plaintiff to the uncorroborated
evidence of the defendants.
The issues of
joinder and consolidation were
raised at the trial court.
Rulings were given on them.
There was no appeal against
rulings. They could not properly
have been discussed in the
appeal in the Court of appeal
because at that level, those
issues were res judicata.
This
litigation has been brought
about by the extreme
carelessness or recklessness of
the officials of the TDC. From
the evidence of the DW2, the TDC
officials who dealt with the
property on behalf of the
defendants knew that the
property had already been
allocated to W. C. Tandoh. Even
if they were not sure because
the file was missing, the
testimony of the DW2 indicated
that the officials could have
verified from Estate or other
Departments within the TDC to be
sure of the status of the
disputed plot before proceeding
to allocate same to the
defendants.
This is not
the first time that the conduct
of officials of the TDC has been
questioned in this court.
Counsel for the appellants
referred to instances in Tema
Development Corporation v Atta
Barfour [2005-2006] SCGLR 121
and Afordi v Ghana Publishing
Corporation [2005-2006] SCGLR
1104. It should by now be made
part of the operating rules that
whenever a file on a plot is not
traceable, the officials dealing
with the file should proceed
cautiously: Indeed, they should
examine all available records
before concluding that the land
is free and therefore can be
re-allocated to another person.
Proceeding without due
investigation where there is a
missing property file will only
give grounds for miscreant
officials to ensure the
disappearance of files so that
plots can conveniently be
re-allocated.
It appears
there is no end in sight of such
reckless behaviour in the
processing of documents. When
such reckless processing of plot
allocations results in
litigation or expenses, the TDC
should make it a policy to
surcharge the officers who
behaved that recklessly. That
may be some steps that may help
to halt the situations similar
to that which has resulted in
this litigation.
The trial
judge arrived at wrong
conclusions on the facts. The
Court of appeal was justified in
reversing his judgment and
orders. There is no merit in
this appeal and same is
dismissed accordingly.
S. A. BROBBEY
JUSTICE OF THE SUPREME COURT
MISS.
S. A. B. AKUFFO
JUSTICE OF THE SUPREME COURT
DR.
S. K. DATE-BAH
JUSTICE OF THE SUPREME COURT
J. ANSAH
JUSTICE
OF THE SUPREME COURT
MRS. SOPHIA O. A. ADINYIRA
JUSTICE OF THE
SUPREME COURT
COUNSEL
.Osafo
Buabeng for the appellant.
Kwame Ayeh
for the respondent.
|
