|
Practice and Procedure –
Amendments -
Leave of the Court -
Additional grounds of appeal -
Breach of provisions of the
rules -
Relief against non-compliance
with the rules - Land –
Ownership - Declaration of title
- Capacity - Ejection from the
land - Perpetual injunction –
whether or not the identity of
the land in question was settled
at the time the court ruled
- Whether or not the judgment
was against the weight of
evidence – Whether or not the
court below erred in admitting
the notice of appeal filed on 26th
January 2016 and treating same
as an additional ground of
appeal - Whether or not the
court vested with the power to
determine an appeal outside the
grounds stated - Rule 9(1), (2)
and (3) of the Court of Appeal
Rules C.I. 19
HEADNOTES
Dora Boateng,
the plaintiff, the facts of her
case from the record reveal that
she bought a 20 acre plot of
land situate at Okorase near
Koforidua from Kwame Kissiedu
Kwaasi, who described himself as
the Head of Family and lawful
representative of the Kissiedu
Kwaasi Family of a section of
the Anonkore Clan. The deed to
the plot of land was executed
between the plaintiff and Kwame
Kissiedu Kwaasi in 2000 and
registered in 2014. The
plaintiff who is ordinarily
resident in Switzerland states
that she returned to the country
to find that her land was being
encroached on by persons she
could not identify. She put up
warnings and caused
announcements to be made within
the vicinity. Since she could
not trace the said persons, she
commenced an action at the
Circuit Court, Koforidua against
“The Developers” claiming
against them,
ejection
from the land and perpetual
injunction restraining the
defendant and its assigns from
interfering with the land. After
substituted service, Mckeown
Investment Ltd, the defendant,
entered appearance and contested
the case to its finality.
Mckeown Investment’s Limited
case is that it acquired a 46.98
acre land from Naggesten Farms.
Naggesten Farms in turn acquired
the plot of land from a family
at Larteh to which Kwame
Kissiedu Kwaasi, the plaintiff’s
grantor belongs and is its
secretary. This land is said to
include the 20 acres of land
claimed by the plaintiff and in
dispute in this appeal. The
defendant counterclaimed against
the plaintiff for the relief of
declaration of title to the
land as well as perpetual
injunction retraining the
plaintiff and her assigns from
interfering with the land. The
trial Circuit Court gave
judgment for the plaintiff on 30th
October 2015, holding that on
the balance of probabilities,
she was the rightful owner of
the land Dissatisfied with the
trial court’s decision, the
defendant lodged an appeal at
the Court of Appeal who reversed
the Circuit Court judgment,
allowed the appeal and ruled in
favour of the defendant
Dissatisfied also with the
decision of the Court of Appeal
which reversed the judgment
delivered in her favour, the
plaintiff sought special leave
of this court and subsequently
lodged a further appeal to this
court,
HELD
In the
peculiar facts of this case, the
plaintiff was in possession of
the land before the grant was
made of the same land to the
defendant. Though this fact
became known to the Kissiedu
Kwaasi, Danquah and Asona
families, they took not step
timeously to challenge the grant
made to her and to set it aside.
We are not prepared
to allow Kwame Kissiedu Kwaasi
or his immediate and wider
family to benefit from this
double sale of the land in
dispute. In as much as the
plaintiff’s possession is
earlier in time to that of the
defendant and on the
preponderance of probabilities,
the trial judge was right in
finding as a fact that the
plaintiff bought her land first.
The learned trial judge was also
right in holding that the
grantor of the plaintiff could
not six years after the sale to
her grant the same land to the
defendant’s grantor. We,
therefore, allow the appeal, set
aside the judgment of the Court
of Appeal and restore the
judgment of the trial Circuit
Court in favour of the
plaintiff.
STATUTES
REFERRED TO IN JUDGMENT
Court of Appeal Rules C.I. 19
Supreme Court
Rules, C.I. 16
High Court
Civil Procedure Rules C.I. 47
Land Registry Act, 1962 (Act
122).
CASES
REFERRED TO IN JUDGMENT
In Re Asamoah
(decd); Agyeiwaa & Others v Manu
[2013-2014] SCGLR 909
Republic v Judicial Committee of
the Central Regional House of
Chiefs; Ex parte
Aaba [2001-2002] SCGLR 545
Volta
Aluminium Co. Ltd v Akuffo
[2003-2005] 1 GLR 502
Kwan v Nyieni
[1959] GLR 67 CA and Dotwaah v
Afriyie [1965] GLR 257 SC
Malm v Lutterodt [1963] 1 GLR 1
Insilhea v. Simons
(1899) Sar. F.L.R. 104
Bayaidie v. Mensah Smith J.
(F.C.L. 150)
Atta v
Amissah [1970] CC 73
Ennin v Prah [1959] GLR 44
Manko & ors. v. Bonso & ors. (3
W.A.C.A. 62).
BOOKS
REFERRED TO IN JUDGMENT
DELIVERING
THE LEADING JUDGMENT
AMEGATCHER,
JSC:-
COUNSEL
K. AMOAKO
AGYEI FOR THE
PLAINTIFF/RESPONDENT/APPELLANT.
JOSEPH GYAMFI
FOR THE
DEFENDANT/APPELLANT/RESPONDENT
WITH HIM PATRICIA KOFIE.
AMEGATCHER,
JSC:-
The events
leading to this appeal which has
ended up at the apex court
started its journey from the
Circuit Court, Koforidua. Being
a civil case, its upward
movement was routed on appeal to
the Court of Appeal. The parties
wishing to take full advantage
of all the legal avenues open to
them did not end the journey at
the intermediate appellate
court. The fight continued by
invoking our appellate
jurisdiction as the final court
in the land, hopefully to give
this land dispute its quietus.
One gentleman called Kwame
Kissiedu Kwaasi is at the centre
of this
land dispute. The actual
role the said Kwame Kissiedu
Kwaasi played and his legal
capacity
will be a determinant factor in
this appeal.
For
Dora
Boateng, the plaintiff, the
facts of her case from the
record reveal that she bought a
20 acre plot of land situate at
Okorase near Koforidua from
Kwame Kissiedu Kwaasi, who
described himself as the Head of
Family and lawful representative
of the Kissiedu Kwaasi Family of
a section of the Anonkore Clan.
The deed to the plot of land was
executed between the plaintiff
and Kwame Kissiedu Kwaasi in
2000 and registered in 2014. The
plaintiff who is ordinarily
resident in Switzerland states
that she returned to the country
to find that her land was being
encroached on by persons she
could not identify. She put up
warnings and caused
announcements to be made within
the vicinity. Since she could
not trace the said persons, she
commenced an action at the
Circuit Court, Koforidua against
“The Developers” claiming
against them, ejection from the
land and perpetual injunction
restraining the defendant and
its assigns from interfering
with the land. After substituted
service, Mckeown Investment Ltd,
the defendant, entered
appearance and contested the
case to its finality.
Mckeown
Investment’s Limited case is
that it acquired a 46.98 acre
land from Naggesten Farms.
Naggesten Farms in turn acquired
the plot of land from a family
at Larteh to which Kwame
Kissiedu Kwaasi, the plaintiff’s
grantor belongs and is its
secretary. This land is said to
include the 20 acres of land
claimed by the plaintiff and in
dispute in this appeal. The
defendant counterclaimed against
the plaintiff for the relief of
declaration of title to the land
as well as perpetual injunction
retraining the plaintiff and her
assigns from interfering with
the land.
The trial
Circuit Court gave judgment for
the plaintiff on 30th
October 2015, holding that on
the balance of probabilities,
she was the rightful owner of
the land.
It applied the nemo dat quod
non habet rule, saying that
since Alfred Naggesten (of
Naggesten farms) claimed to have
acquired his parcel of land from
Kwame Kissiedu Kwaasi in 2006
(six years after the plaintiff),
Kwame Kissiedu Kwaasi had no
interest in the land to convey
to him after the first sale.
Dissatisfied
with the trial court’s decision,
the defendant lodged an appeal
at the Court of Appeal.
On 3rd May 2017, the
Court of Appeal
reversed
the Circuit Court judgment,
allowed the appeal and ruled in
favour of the defendant for
the reliefs endorsed on its
counterclaim. On the substance
of the matter, the Court of
Appeal relied on the recitals in
the deed of conveyance between
Kwame Kissiedu Kwaasi and the
plaintiff in which the former
was described as the “Head and
Lawful Representative of the
Kissiedu Kwaasi Family of a
section of the Anonkore Clan”.
The said family was said to be
granting the land with the
consent and concurrence of the
principal members of that
family. The Court of Appeal held
that since Kwame Kissiedu Kwaasi
was not the head of the section
of the Anonkore Clan of
Larteh-Akuapem, the grant was
void. The Court further held
that, assuming the grant had
been initiated by Kwame Kissiedu
Kwaasi’s mother (Madam Abena
Frimpomaa), the inability of
Kwame Kissiedu Kwaasi to take
Letters of Administration or
Probate after her death to
clothe him with capacity to
execute the transaction
invalidated the sale.
Dissatisfied
also with the decision of the
Court of Appeal which reversed
the judgment delivered in her
favour, the plaintiff sought
special leave of this court and
subsequently lodged a further
appeal to this court,
on three grounds:
i.
the judgment is against the
weight of evidence
ii.
the court below erred in
admitting the notice of appeal
filed on 26/01/2016 and treating
same as additional grounds of
appeal and
iii.
the court below erred in
applying the nemo dat quod
non habet principle against
the plaintiff when the evidence
on record confirmed that both
parties bought the land in
dispute from the same grantor.
Ground 2
raises a procedural matter. We
deem it appropriate to determine
this before proceeding with an
analysis of the grounds dealing
with the
ownership of the land in
dispute.
The plaintiff
had argued in the Court of
Appeal that the defendant, after
the trial court’s judgment,
filed a notice of appeal dated
13th November 2015 in
which the sole ground of appeal
was that
the judgment was against the
weight of evidence. However,
the defendant changed lawyers
and the new lawyer filed another
notice of appeal on 26th
January 2016 in which three
grounds of appeal were set out.
Admittedly these two notices
were all filed within the three
month period prescribed by the
rules for filing an appeal. The
plaintiff invited the Court of
Appeal to strike out the second
notice of appeal filed without
the leave of the court and to
limit itself in the
consideration of the appeal to
the first notice of appeal. In
its judgment dated 2nd
May 2017, the Court of Appeal
overruled the plaintiff and
decided to treat the second
notice of appeal as additional
grounds of appeal. It was the
position taken by the Court of
Appeal which prompted the
formulation of the second ground
of appeal in the current appeal
before us, i.e., that
the court
below erred in admitting the
notice of appeal filed on 26th
January 2016 and treating same
as an additional ground of
appeal.
Counsel for
the plaintiff has submitted to
us that the Court of Appeal
ignored the fact that an appeal
is a creature of statute whose
rules and procedures should be
strictly adhered to. According
to counsel, the Court of Appeal
in failing to do that committed
a fundamental jurisdictional
error. Counsel also submitted
that the Court of Appeal erred
in admitting the second notice
of appeal and therefore all
submissions founded on that
notice were inadmissible and
same should have been thrown
out. Counsel also submitted that
under the omnibus ground of
appeal, the Court of Appeal
erred in admitting ‘issues’
argued by the defendant as
grounds of appeal and that it
sinned against Rule 8(7) of C.I.
19 as well as the binding
decision of the Supreme Court in
the case of
In Re
Asamoah (decd); Agyeiwaa &
Others v Manu [2013-2014] SCGLR
909. Counsel for the
defendant supported the position
taken by the Court of Appeal and
insisted that the second notice
was valid because it was filed
within the time prescribed by
the rules.
Rule 9(1),
(2) and (3) of the Court of
Appeal Rules C.I. 19
provides as
follows:
9.
Time limits for appealing
(1)
Subject to any other enactment
for the time being in force, no
appeal shall be brought after
the expiration of-
(a)
twenty-one days in the case of
an appeal against an
interlocutory decision;
or
(b)
three
months in the case of an appeal
against a final decision unless
the court below or the Court
extends the time.
(2)
The prescribed period within
which an appeal may be brought
shall be calculated from the
date of the decision appealed
against.
(3)
An appeal is brought when the
notice of appeal has been filed
in the Registry of the court
below”
Also
Rule 8(7) and (8) of C.I. 19
provides that:
(7)
The appellant shall not, without
the leave of the Court, urge or
be heard in support of any
ground of objection not
mentioned in the notice of
appeal, but the Court may allow
the appellant to amend the
grounds of appeal upon such
terms as the Court may think
just.
(8)
Notwithstanding sub rules (4) to
(7) of this rule, the Court in
deciding the appeal shall not be
confined to the grounds set out
by the appellant but the Court
shall not rest its decision on
any ground not set out by the
appellant unless the respondent
has had sufficient opportunity
of contesting the case on that
ground.
The
equivalent of the rules quoted
above in the
Supreme
Court Rules, C.I. 16 is rule
6(6) and rule 8(1), (2) and (3).
Rule 6(6) The appellant shall
not, without the
leave of
the Court, argue or be heard
in support of any ground of
appeal that is not mentioned in
the notice of appeal.
(7) Notwithstanding sub rules
(1) to (6) of this rule the
Court-
(a) may grant an appellant leave
to amend the ground of appeal
upon such terms as the Court may
think fit; and
(b) shall not, in deciding the
appeal, confine itself to the
grounds set forth by the
appellant or be precluded from
resting its decision on a ground
not set forth by the appellant.
(8) Where
the Court intends to rest a
decision on a ground not set by
the appellant in his notice of
appeal or on any matter not
argued before it, the Court
shall afford the parties
reasonable opportunity to be
heard on the ground or matter
without re-opening the whole
appeal.
Rule 8(1)
Subject to the provisions of
any other enactment governing
appeals, a civil appeal shall be
lodged within-
(a) twenty-one days, in the
case of an appeal against an
interlocutory decision; or
(b) three months, in the case of
an appeal against a final
decision unless the court below
or the Court extends the period
within which an appeal may be
lodged.
(2) The periods
specified in sub-rule (1) shall-
(a) in the case of an appeal as
of right, be calculated from the
date of the decision appealed
against; and
(b) in any other case, be
calculated from the date on
which leave is granted.
(3) A civil
appeal is lodged on the date the
notice of appeal is filed.
The import of
rule 9 of C.I. 19 is that the
jurisdiction of the Court of
Appeal is invoked when a ‘notice
of appeal’ is filed in the
registry of the court. Only one
notice of appeal is contemplated
by the rule. After a valid
notice of appeal has been filed
any addition to the notice in
the form of additional grounds
or amendments must comply
strictly with rule 8(7). The
rule, however
vests the
Court with power to determine an
appeal outside the grounds
stated in the notice of
appeal but this is a discretion
granted to the court and not to
the parties. An appellate court,
therefore, should not without
leave of the court permit any
party to amend the grounds or
argue grounds of appeal not
stated in the notice of appeal.
The case of
Republic v Judicial Committee of
the Central Regional House of
Chiefs; Ex parte
Aaba [2001-2002] SCGLR 545
which
interpreted Rule 6 of C.I. 16, a
rule which bears similarity to
Rule 8(7) & (8) of C.I. 19 held
that:
“Rule 6 of the Supreme Court
Rules, 1996 (CI 16), did not
permit an appellant to argue a
ground of appeal that was not
set forth in his notice of
appeal. And rule 6(7)(b), which
enjoined the court not to “
confine itself to the grounds
set forth by the appellant or be
precluded from resting its
decision on a ground not set
forth by the appellant” was
subject to rule 6(8); that rule
meant no more than that the
decision to rely on a ground not
set forth by the appellant
rested solely with the court
when in any particular appeal
before it the justice of the
case required the court to rest
its decision on a ground not
relied on by the appellant in
his notice of appeal. Rule 6(8)
should not be taken as granting
the appellant a general licence
to abandon his obligations under
the rules.”
In the appeal
before us, after the judgment of
the trial court, the defendant
invoked the jurisdiction of the
Court of Appeal by filing a
notice of appeal dated 13th
November 2015 in which the sole
ground of appeal was that the
judgment was against the weight
of evidence, adding that further
grounds will be filed on receipt
of the record of proceedings. No
such further ground was filed.
However, the defendant changed
its lawyers and on 26th
January 2016, the new lawyer
filed another notice of appeal
in which three grounds of appeal
were set out. No leave of the
court was sought to amend the
notice of appeal or argue
additional grounds of appeal
in compliance with the rules.
The second notice of appeal
filed by the defendant is,
therefore, alien to the rules
and should have been struck out
by the Court of Appeal.
It is
important for counsel who wish
to pursue their advocacy career
in the appellate courts to be
conversant with the rules of
procedure and comply with its
provisions when representing
their clients. Failure to do
that may have adverse and far
reaching repercussions on the
client’s case as we have in this
appeal. The Court of Appeal’s
reasons for treating the second
notice of appeal as additional
grounds of appeal was that the
rules of court were supposed to
be interpreted purposively to
achieve speedy and effective
justice which avoids delays and
unnecessary expense to ensure
that disputes between the
parties may be effectively
determined. The Court then cited
the case of
Volta
Aluminium Co. Ltd v Akuffo
[2003-2005] 1 GLR 502
in support of its
decision.
We agree with
the provision in Order 1 Rule 1
of the
High Court Civil Procedure Rules
C.I. 47 that rules of court
are
to be interpreted and applied so
as to achieve speedy and
effective justice, avoid delays
and unnecessary expense, and
ensure that as far as possible,
all matters in dispute between
parties may be completely,
effectively and finally
determined and multiplicity of
proceedings concerning any of
such matters avoided. In fact,
this court in several decisions
where the justice of the case
required, has granted relief to
parties caught by the failure to
observe the rules. In the Valco
case (supra) referred to by the
Court of Appeal, this court
ignored additional grounds of
appeal filed without the leave
of the court. Dwelling on the
power vested in it by rule 6(7)
of C.I. 16 not to rest its
decisions solely on the grounds
contained in the notice of
appeal, the court exercised its
discretion to take account of
any of the void additional
grounds which it considered
helpful to the rehearing of the
appeal. In exercising that
discretion, the court relied on
the rules but did not lay down
any general rule that in all
cases where the rules were not
complied with, relief would come
to the defaulting party.
In the case of Republic v
Judicial Committee of the
Central Regional House of
Chiefs; Ex parte Aaba (supra)
the appellant failed to
exercise the right to file
additional grounds of appeal on
an issue before the Supreme
Court. When the appeal came on
for hearing, he invited the
Supreme Court to consider
grounds of appeal which were
argued in the Court of Appeal
but not repeated in the Supreme
Court. Adzoe JSC, responding to
the effect of
breach of
some provisions of the rules
such as those dealing with
appeals formulated the legal
position in the following words
at page 552:
“I find it difficult to accept
that invitation. The Rules of
the Supreme Court, 1996 (CI 16)
(and all other courts) are there
to be observed. They form an
important component in the
machinery of the administration
of justice, and the courts must
not, as a general rule, take
lightly any non-compliance with
them, even though technicalities
are not to be permitted to
undermine the need to do justice.”
It is our understanding that the
discretion given to the court to
grant
relief against non-compliance
with the rules should be
exercised on a case-by-case
basis having regard to the facts
of a particular case, the
conduct of the parties, the
wording of the rules breached
and the justice of the case.
There are some breaches of the
rules which the ever loving arms
of the saving grace provided in
the non-compliance provisions
will embrace. Other breaches
which are cardinal ought to be
strictly enforced to save the
rules from the danger of being
wiped off the statute books for
non-compliance. In the case
before us, the rules were
deliberately or recklessly
ignored by the defendant. The
approach adopted by the
defendant was not a breach of
the rules so to speak but a line
of action unknown to the rules.
The two are different. The ratio
in the Valco case cited by the
Court of Appeal and the present
appeal are different. We do not
think we should treat the two
alike. In our opinion, if the
defendant had exercised
diligence, it would have saved
itself from this predicament.
The Court of Appeal after
treating the second notice of
appeal as additional grounds of
appeal proceeded to determine
those grounds. A reproduction of
the grounds the Court of Appeal
treated as additional grounds
will bring to the fore the
arguments being presented by the
plaintiff regarding the
disparity between the grounds
stated in the notice of appeal
and the grounds argued in the
written submissions. The grounds
appearing in the second notice
were as follows:
a.
The judgment is against the
weight of evidence.
b.
The court erred when it
proceeded to give judgment even
though a site plan it had
ordered had not been presented
to the court by the Regional
Surveyor.
c.
The Court erred in awarding
judgment to the plaintiff on the
reliefs sought when the identity
of the land had not been
determined.
d.
Further grounds of appeal will
be filed on receipt of the
Record of Proceedings.
However, reading through the
written submissions filed by the
defendant in support of those
grounds, the defendant failed to
present any arguments in support
of the grounds. What the
defendant argued before the
Court of Appeal were described
as “issues” which counsel
couched as follows:
1.
The first issue is
whether
or not the identity of the land
in question was settled at the
time the court ruled.
2.
The second issue of our appeal
is whether or not Kwame Kissiedu
had capacity to alienate the
land.
3.
The third issue is whether or
not the land in question is
family land; if it is whether or
not it was legally sold to the
plaintiff when Kwame Kissiedu
alienated the land
single-handedly and without
recourse to the family Head and
the entire family.
4.
The fourth issue to be
considered in our opinion is
whether or not the Nemo Dat Quod
Non Habet rule cannot be
exercised in favour of our
client.
We wish to state for the benefit
of the legal profession that
issues for trial are set down in
a trial court to form the basis
of the matters the trial judge
is called upon to determine.
Issues have no place in the
appellate courts. In those
courts, submissions are made
based on each ground of appeal
stated in the notice of appeal
or additional grounds of appeal
permitted by the court. Apart
from the grounds in the notice
of appeal, an appellant cannot
argue any ground not listed in
the notice of appeal in
compliance with Rule 8(7) of
C.I. 19 and 6(7) of C.I. 16.
Such a default on the part of an
appellant cannot be cured by any
purposive interpretation of the
rules or the comfort granted by
the court in some cases of
non-compliance with provisions
of the rules.
In this court’s case of In Re
Asamoah (decd); Agyeiwaa & Ors v
Manu [2013-2014] 2 SCGLR 909
cited by counsel for plaintiff,
a notice of appeal to the
Supreme Court by the appellants
in that case stated as the
ground of appeal the omnibus
ground that the judgment was
against the weight of evidence.
It further stated that the court
erred when it held that in the
absence of a counterclaim it
could not grant the appellant’s
relief. Then, finally, that
further grounds of appeal would
be filed upon receipt of the
record of proceedings. The
appellants in that case did not
apply for leave to argue
additional grounds of appeal on
receipt of the record of appeal
in compliance with Rule 6 of the
Supreme Court Rules, 1996, (C.I.
16), and none was filed.
However, in their arguments
contained in their statement of
case, the appellants on their
own initiative, abandoned the
grounds filed in their notice of
appeal and proceeded to argue
grounds fashioned as “issues
presented”.
This court speaking through
Akamba JSC at pages 916-917 held
as follows:
“the defendants appear to
have adopted a totally different
approach to arguing their appeal
than is prescribed by rule 6 of
the Supreme Court Rules, 1996
(CI 16). They appear to be
oblivious of the requirements of
CI 16 and, on their own
initiative, merely abandoned the
grounds filed in the notice of
appeal and then proceeded to
argue grounds fashioned as
‘issues presented’ in their
statement of case……. The
plaintiff refused to swallow the
bait evident in the defendants’
lapses which the plaintiff
described as a failure to
address the fundamental issues
raised in their appeal. There
being no record of any leave
having been sought by and
granted to the defendants to
argue any additional grounds of
appeal, the plaintiff also
refused to respond to those
grounds purportedly argued and
rightly so; this court has no
option than to strike out those
so-called ‘issues’ presented and
argued by the defendants, which
we hereby do.
The ratio in In Re Asamoah
(supra) bears resemblance to the
appeal before us. The sole
ground of appeal was the omnibus
ground. The other ground was
that further grounds would be
filed upon receipt of the record
of appeal. No leave was sought
to argue or file additional
grounds and none was given by
the court. What the defendant
purported to argue as additional
grounds were those contained in
the second notice of appeal
which were fashioned as ‘issues’
and very different from the
grounds specified in the second
notice of appeal. The purported
grounds of appeal argued by the
defendant in its written
submission not having complied
with rule 8(7) of C.I. 19 should
have been struck out by the
Court of Appeal. The failure to
strike the defendant’s
submissions and treating them as
additional grounds in its
judgment was delivered per
incuriam the decision of this
court in In Re Asamoah
(decd); Agyeiwaa & Ors v Manu
(supra) which was binding on
the Court of Appeal. We,
therefore, allow ground ‘b’ of
the plaintiff’s appeal and
strike out the second notice of
appeal dated 26th
January 2016 as well as the
submissions fashioned as
‘issues’ in the written
submission of the defendant
filed on 13th October
2016. The implication of this
order is that the defendant in
the Court of Appeal having
failed to put forward any
arguments in support of the only
ground filed, i.e., the judgment
against the weight of evidence
must fail in its bid to overturn
the judgment of the trial court.
This conclusion should have
disposed of this appeal.
However, because an appeal is by
way of rehearing and in view of
the fact that the plaintiff
further argued grounds 1 and 3
in the notice of appeal, we deem
it our duty to review the
evidence in this case and
determine whether the trial
court had any basis to arrive at
the conclusion it did. Was the
Court of Appeal justified in
reversing the findings made by
the trial court?
Grounds 1 and
3 will be considered together.
The disposal of one will
inevitably dispose of the other.
The kingpin in this whole
dispute as noted at the
beginning of this opinion is
Kwame Kissiedu Kwaasi. The
Circuit Court held that Kwame
Kissiedu Kwaasi after selling
the land to the plaintiff had no
other land to sell to the
defendant. Thus, by the
principle of nemo dat quod
non habet, the defendant did
not acquire any interest in that
land. The court found the
plaintiff to be the owner of the
land and granted her the reliefs
sought. This finding of the
trial court was reversed on
appeal by the Court of Appeal
which found that the land in
dispute was family land and
since Kwame Kissiedu Kwaasi was
not the head of family, he could
not validly alienate the land to
the plaintiff without lawful
authority of the family. In
allowing the appeal the Court of
Appeal also relied on the
principle of nemo dat quod
non habet against Kwame
Kissiedu Kwaasi. Both courts
therefore relied on the same
principle of law in coming to
different conclusions.
Counsel for
the parties referred this court
to pieces of evidence and case
law which justified the
conclusion reached by the court
which decided in their client’s
favour. This must be resolved by
this court one way or the other
in order to bring closure to
this litigation. Who owns the
land which is the subject matter
of dispute? Has Kwame Kissiedu
Kwaasi any role to play in the
disposal of the land?
In his
evidence before the Circuit
Court, Kwame Kissiedu Kwaasi who
testified on behalf of the
plaintiff stated that the land
is the self-acquired property of
his mother Madam Yaa Frimpomaa
Thompson. In the document,
exhibit A which is the indenture
Kwame Kissiedu Kwaasi executed
in favour of the plaintiff, he
described the land in dispute as
an ancestral land of Kissiedu
Kwaasi family of a section of
the Anonkore Clan of
Larteh-Akwapim and himself as
the head and lawful
representative. There was,
therefore, a clear conflict in
the testimony of Kwame Kissiedu
Kwaasi regarding the original
ownership of the property in
dispute. The Court of Appeal
after reviewing the evidence
concluded that since the oral
evidence of Kwame Kissiedu
Kwaasi conflicted with the
documentary evidence in exhibit
A, the court would prefer the
averments in the documentary
evidence to that of the oral
one. The court, therefore, found
that the property in dispute did
not belong to Kwame Kissiedu
Kwaasi’s mother but was family
property. Relying on the cases
of
Kwan v Nyieni [1959] GLR 67 CA
and Dotwaah v Afriyie [1965]
GLR 257 SC,
counsel for the respondent
justifying the Court of Appeal’s
ruling invited this court to
follow the holdings in the two
cases and dismiss the appeal.
In the case
of Kwan v Nyieni (supra)
after a purported removal of
Osei Kojo as head of family and
the appointment of Kojo Kwan as
the new head, Osei Kojo together
with one female member of family
mortgaged four cocoa farms
belonging to the family to Kwesi
Nyieni. Upon
Nyieni’s advertising the said
four farms for sale in exercise
of a power of sale under the
mortgage, Kojo Kwan, purporting
to act as head of the family,
instituted an action against
Osei Kojo and Nyieni. On appeal,
Van Lare Ag. CJ expounded the
principle that a deed of
conveyance, mortgage or lease of
family land which is on the face
of it executed by the head and
another member, upon proof
timeously made that its
execution was without the
knowledge and consent of all the
principal members of the family,
is null and void. The other
principle of law stated in this
case is the head of family’s
capacity to represent the family
in suits filed or brought
against the family and the
exceptions to that general
principle. Kwan’s cases did not
go into validity of grants made
by the family head without the
consent of the principal members
or grants made by the principal
members without the family head
or lastly grants by ordinary
members of the family without
the involvement of the head and
principal members.
However, in the case of
Dotwaah v Afriyie (supra), the
first defendant had mortgaged
land originally belonging to one
Addo, an Akan, who had died
intestate to the second
defendant, in spite of the
protests of the plaintiff who
claimed that she had been
appointed successor to the one
who had succeeded Addo and
therefore constituted the
immediate family of Addo. It was
the case of the plaintiff that
without her consent and
concurrence no valid transaction
with Addo's land could be
effected. She sued for a
declaration that the farm in
dispute was family property, and
that the mortgage of the farm
was void and sought an order for
recovery of possession.
On appeal, Ollennu JSC posited
as follows:
The law regulating dealings with
family property is well-settled,
and is as follows: The head of
the family or the successor is
an indispensable person in the
alienation of family land; and
alienation of family property
made by the head of the family
or a successor purporting to be
with the consent and concurrence
of the principal members of the
family is voidable at the
instance of the family if they
act timeously; but a conveyance
made by any other member without
the indispensable person, the
head of the family or the
successor as the case may be, is
void ab initio and confers no
interest or title in the land on
the purchaser or mortgagee.
We have no doubt about this
proposition of the law. It is
still valid in our
jurisprudence. We, however,
believe its proper application
must depend on peculiar facts
and the justice of a particular
case. Thus, in the case of
Malm v
Lutterodt [1963] 1 GLR 1,
the then head of the Lutterodt
family, with the concurrence of
the other principal elders of
the family, conveyed a portion
of the family land to R. L. in
1953. R. L. immediately took
possession of the land and
remained in undisturbed
possession thereof until 1960,
when C. M. entered the land,
removed R. L.'s pillars and
started to erect his own. When
challenged by R. L., C. M.
claimed that the land had been
sold in 1943 to his late father,
Peter Malm, by the Lutterodt
family, and that it had now
devolved upon himself and his
sister. R. L. sued C. M. and his
sister in the High Court, Accra.
On appeal Crabbe JSC (as he then
was) after reviewing the law
that there can be no valid
transfer of family property
except by the head of the family
acting with the consent and
concurrence of the principal
elders noted that in the instant
case the head of the Lutterodt
family and the principal members
did not know about this sale of
the family land. Crabbe JSC did
not nullify the sale based on
the general proposition of the
law, but qualified the legal
proposition that “The
principle here enunciated must
depend for its application on
the circumstances of each case.”
Crabbe JSC then cited with
approval Smith J’s dictum in
Insilhea
v. Simons
(1899) Sar. F.L.R. 104
which also gave judicial
blessing to the Court of Appeal
case of
Bayaidie v. Mensah Smith J.
(F.C.L. 150) which decided that
in situations such as this, the
sale is not void but capable of
being opened up at the instance
of the family, provided they
acted timeously, and upon the
revision of the contract, the
purchaser can be fully restored
to the position he stood before
the sale.
At the end of the day, Crabbe
JSC did not void the sale but
came to the conclusion that the
Lutterodt family had full
knowledge of the sale to Peter
Malm by their member in 1943 and
that by conduct adopted or
ratified the transaction.
What then are the peculiar facts
of this appeal which would
warrant the strict application
of the general principle
enunciated in Dotwaah v
Afriyie (supra), or Crabbe
JSC’s qualification in
Malm v Lutterodt [1963] 1 GLR
1? The
plaintiff
claims to have bought a parcel
of land at Okorase near
Koforidua in the year 2000 from
Kwame Kissiedu Kwaasi
representing the Kissiedu Kwaasi
family. She initially wanted to
purchase 50 acres, but due to
financial constraints, purchased
only 20 acres. Later, her
grantors informed her they had
sold the remaining 30 acres to
Naggesten Farms. When she
travelled outside the country
and returned, she realised that
portions of her land had been
encroached on. She put up
warnings and caused
announcements to be made within
the vicinity, and subsequently
commenced an action at the
Circuit Court against “The
Developers” since she could not
trace the said persons. After
substituted service, Mckeown
Investment Ltd., the defendant,
entered appearance and contested
the case to finality. The
defendant claims to have
acquired 46.96 acres of land
from their grantor, Naggesten
Farms, who themselves acquired
it from a family at Larteh to
which Kwame Kissiedu Kwaasi
belongs. The defendant’s land
includes the 20 acres already
sold to the plaintiff, hence the
dispute. The Court of Appeal
concluded that the land was a
family land and Kwame Kissiedu
Kwaasi not being a head of
family had no capacity to sell
the land to the plaintiff. The
Court of Appeal also faulted the
plaintiff for not exercising “due
diligence as the recitals in the
conveyance executed by her and
her grantor revealed that her
grantor styled himself as the
head of his family and she
should have investigated but
failed to do so.”
Is the
disputed land for a family and
if so which family? The
plaintiff in her evidence
contained in her title deed
tendered as exhibit ‘A’ stated
that the land in dispute
belonged to the Kissiedu Kwaasi
family of the Anonkore Clan of
Laterh. However, DW1 Stephen
Addo in his evidence at page 47
stated that the disputed land is
family land and at page 50
provided particulars of the
family Kwame Kissiedu Kwaasi and
DW1 belonged to as Asona. This
is confirmed in the title deeds,
Exhibit 3, executed in favour of
defendant’s grantors, Naggesten.
However, at page 53 line 9, DW1
changed his story on the
ownership of the disputed land
from the Asona family to the
Danquah family.
This court
has taken judicial notice of the
fact that in Ghanaian
traditional family practices, a
person could belong to multiple
family units with descriptions
such as Clans, lineage, wider
family, immediate family, etc.
Each of these family units have
their own heads and principal
members and own properties which
may be communal and permeate the
various branches. It is critical
in such disputes where family
land is an issue for the
evidence to state precisely
which unit within the family
claims or owns the land. The
case of
Atta v Amissah [1970] CC 73
is authority for the
multiple units of the family and
the need to identify which unit
owns property. In that case the
Court of Appeal held that:
“It is settled customary law
that upon the death of a person
intestate, although his
self-acquired property becomes
the property of the whole
family, the immediate and the
wider family together, the right
to the immediate or beneficial
enjoyment in it and to the
control, use and present
possession of it vests in the
immediate or branch family
alone. If the property is held
by tenants, the right to the
landlord’s benefits vests also
in the immediate family alone.
It is the immediate family, and
not the extended family, which
has the power to alienate the
property by virtue of its
possession of the right to the
beneficial enjoyment of the
property.”
Also in
Ennin v Prah [1959] GLR 44,
one of Kofi Nkum's nephews,
Isaac Ennin, was away in the
United Kingdom on scholarship
for higher studies when the
properties were sold, as he
said, without his knowledge. In
1957 Ennin instituted
proceedings against the
purchaser Prah in the Agona
Native Court "B" of Nsaba. His
main contention was that Kofi
Nkum's immediate family was
itself only one of four branches
of a larger Twidan family. Each
branch had its head, and there
was an over-all Head and Elders
of the whole Twidan family. The
sales had been without the
knowledge and consent of the
over-all Head and Elders, and
were therefore bad. Isaac Ennin
accordingly claimed a
declaration that the sales of
the farms were null and void,
and should be set aside, and
recovery of possession ordered
to him.
Adumuah-Bossman J (as he then
was), held that
“a claim to set aside the sale
of family property on the ground
that it was made without the
consents required by customary
law, must be made timeously, and
under circumstances in which,
upon the rescinding of the
bargain, the purchaser can be
fully restored to the position
in which he stood before the
sale.”
This rule was enunciated by the
Full Court in Bayaidie v. Mensah
(Supra), and has since been
applied in several cases,
notably
Manko & ors. v. Bonso & ors. (3
W.A.C.A. 62). It is clear
that a claim made in 1957 to set
aside sales made in 1941, 1942
and 1944 can hardly be said to
be a "timeous claim." It would
clearly be inequitable, and
contrary to the rule in Bayaidie
v. Mensah, to entertain and
allow such a claim.
The question
of identifying the family which
owns this disputed land is made
worse by the fact that two
official search results from the
Eastern Region Lands Commission
to determine the registration
and ownership status of the 50
acres of land tendered by the
plaintiff, exhibits B and D have
multiple grantors conveying
different plots and acres of the
land to prospective purchasers.
A quick glance at the search
results at page 116 would reveal
vendors of the 50 acres of land
between 1984 and 2014, mentioned
as Beatrice Afua Obuo & Cardina
Apparama, Emmanuel Kwabena
Larbi, Opanyin Emmanuel Amponsah
Atiemo, Benjamin Tetteh, Stephen
Alfred Tagoe, Evelyn Doku, Madam
Gladys Yirenkyiwah, Madam
Elizabeth Darkoa, Emmanuel Kwasi
Awuah, Emmanuel Owiredu
Yirenkyi, Nana Yaw Osiakwan II,
Kwame Kissiedu Kwaasi and Daniel
Addo Danquah all registered in
the records of the Land
Commission. In circumstances
like this, how will a
prospective purchaser know the
actual family which owns the
property except to rely on the
good faith of the prospective
grantors? We find it more
probable to believe that that
large tract of land is owned by
a large lineage from
Larteh-Akwapim and that branches
within the lineage could make
grants to prospective purchasers
as evidenced by majority of the
names of the vendors mentioned
above which bore semblance to
Akwapim names. Three families
are mentioned in this case. They
are the Kissiedu Kwaasi family
of the Anonkore Clan of Laterh,
the Asona family and the Danquah
family.
The challenges the courts
continue to face with accurate
maps, reports and data in
resolving land disputes bring to
the fore the unsatisfactory
nature of land administration in
this country. Twenty-Five years
after the passage of the Land
Title Registration Act, 1995,
PNDCL 152, only the Greater
Accra Region and Kumasi
metropolis have been declared
registrable districts for the
purposes of title registration
to land. The remaining fifteen
out of the sixteen regions in
the country continue to grapple
under the weaknesses of
registration of instruments
affecting land under the
Land
Registry Act, 1962 (Act 122).
Chief among these are
wasteful and unprofitable
litigation arising from
uncertainties regarding
interests in land by those who
hold them and the extent of
their interest.
The mischief the passage of the
Act was sought to cure i.e. “to
give certainty and facilitate
the proof of title; to render
dealings in land safe, simple
and cheap and prevent frauds on
purchasers and mortgagees”
continue to elude prospective
purchasers in almost all the
regions in the country.
Typically,
with registration under Act 122,
innocent purchasers for value no
matter how diligent their
inquiries are always susceptible
to falling victim to
unscrupulous members of families
or subjects of stools who
indulge in multiple sales of
land.
Section 34 of
Act 122 which makes it a second
degree felony for a person to
purport to make a grant of a
piece of land to which he has no
title or purport to make a grant
of a piece of land without
authority or makes conflicting
grants in respect of the same
piece of land to more than one
person, has hardly been utilized
to prosecute offenders in such
double land transactions to
deter them and others with like
minds from continuing with their
criminal activities.
Land represents the wealth of a
nation. It plays a significant
role in the economic
developments of a country. Where
a country’s land administration
is weak, it could have a
negative impact attracting
foreign investment. Investors,
especially, prefer certainty and
safe dealings in land. It is
about time our policy makers
came out with a comprehensive
policy regarding land ownership,
title and administration and
research into why land
transactions in some regions
like Ashanti appears to be safe
under Act 122. A second look
could also be made at the
current constitutional provision
reverting land in the Stools and
Families as against the pre-1969
land administration system where
the Presidential Trusteeship of
land was operational.
Apart from
the real identity of the family
which owned the land in dispute,
there were other thorny issues
worth considering. One piece of
evidence on record which caught
the eye of the trial judge but
escaped the scrutiny of the
Court of Appeal was the identity
of the vendor who granted the
land to the parties. It is
undisputed that the plaintiff
bought her land from Kwame
Kissiedu Kwaasi purporting to be
the head and lawful
representative of the Kissiedu
Kwaasi family of the Anonkore
clan of Larteh. This can be
found at paragraph 4 of her
Statement of Claim, paragraph 7
of her Reply and in her
evidence-in-chief.
In the case
of the defendant, it deposed in
paragraphs 5, 9 and 16 of its
Defence and Counterclaim that it
acquired the land from Naggasten
Farms who were the bona fide
owners of the land. On how
Naggasten Farms came by the
land, this is the testimony of
DW1 Stephen Addo reproduced at
pages 47-48 of the record:
“In 2004 I
had information that someone had
erected pillars around our land.
I went to Larteh to ask my uncle
about this development. My uncle
is Kwesi Danquah. He told me he
had not sold any land to
anybody. I then came to
Koforidua and asked my brothers
about it. They said they heard
Naggesten Company had bought the
land. I went to Naggesten
Company about whether he was the
one who had bought the land.
The Company admitted and it was
one Kwame Kissiedu who sold the
land to them. Naggesten said
he bought 47.8 acres for
GH50,000.00. I went back to
inform my uncle Kwasi Danquah.
Naggesten also said he had paid
GH27,000.00 as part payment to
Kwame Kissiedu. Kwasi Danquah
said he would not accept
GH50,000.00 for the large tract
of land. The family met with
Kwame Kissiedu and asked him to
refund the GH27,000.00 he had
collected. Kwame Kissiedu said
the money was not there. As a
result of this, we agreed to see
Naggesten for a top-up. We met
with Naggesten and we agreed to
collect GH30,000.00 in addition
to the GH50,000.00. Naggesten
agreed and paid the entire sum
in the presence of Kwame
Kissiedu. The land was sold
by Kwame Kissiedu.”
During
cross-examination of DW1 at page
51 of the record, the following
dialogue is recorded between him
and counsel for the plaintiff:
“Do
you agree that it was Kissiedu
who sold the land to Naggesten
A.
Yes
Q. I am
putting it to you that the
shaded portion as indicated on
the plan indicates the land you
sold to Naggesten.
A. It is not
correct. Kwame Kissiedu sold
the whole land to Naggesten.”
In the case
of DW2, Alfred Naggesten Tetteh,
the Director of the defendant’s
vendor, during his
cross-examination the following
dialogue ensued between him and
counsel for the plaintiff at
page 63 of the record:
“Q. You have told the Court you
bought your land from Kwame
Kissiedu. Is it correct?
A.
Yes, my Lord.
Q. And that
he sold 50 acres of land to you.
Is that correct?
A. Yes, about
50 acres
Q. I put it
to you that Kwame Kissiedu could
not have sold about 50 acres of
land to you because he had
earlier on sold 20 acres out of
the 50 acres in the year 2000 to
the Plaintiff.
A. I insist
that he sold 50 acres of land to
me.”
We have taken
pains to quote in extenso the
evidence of the defendant’s
witnesses not because we want to
shift the burden of proof on the
defendant in a land dispute. We
have done so because the
defendant having counterclaimed
for a declaration of title then
also equally bore the same
burden as the plaintiff to prove
its title. There is overwhelming
evidence on record that it was
Kwame Kissiedu Kwaasi, the
grantor of the 20 acres to the
plaintiff who sold the 50 acres
of land including that of the
plaintiff to the defendant’s
grantor. Before Naggesten was
given the legal title, the head
of the Asona family sourced for
a top up sum of Ghc30,000.00
before executing the documents.
This was paid in the presence of
Kwame Kissiedu Kwaasi before the
document of title was signed by
the head of the Asona family and
witnessed by Kwame Kissiedu
Kwaasi who is described as
secretary to the family. Kwame
Kissiedu Kwaasi, therefore,
conveyed the equitable title
while the head of the Asona
family executed the legal title.
The evidence
having been overwhelming that
Kwame Kissiedu Kwaasi sold the
property in dispute first to the
plaintiff in 2000 and later to
the defendant’s grantor in 2006,
the Court of Appeal erred in its
opinion that it was the Asona
family headed by Kwasi Danquah
who sold the land to the
defendant’s grantor and
therefore the defendant had its
title from the person with legal
authority to sell the land. Even
if we were to apply the legal
principle enunciated in
Dotwaah v Afriyie (supra),
the facts in this case reveal
that the grantor of the parties
held positions higher than a
principal member of the
immediate and wider lineage
which is said to own the land.
Thus, to avert any suspicion of
collusion on the part of the
family defrauding the plaintiff
in the grant earlier made to
her, this court will apply the
Dotwaah v Afriyie principle to
the peculiar facts of this case.
In our
opinion, it would be inequitable
to deny the plaintiff title to
the land she was granted by
Kwame Kissiedu Kwaasi. In the
case of Dotwaah, the grantor was
an ordinary member of the family
who mortgaged the land while in
the peculiar facts of this case
the grantor is first recorded as
the head of the Kissiedu Kwaasi
family and later in the
defendant’s grantor’s documents
described as the secretary to
the Asona family. In the
peculiar facts of this case, one
grantor conveyed the same land
to both the plaintiff and the
defendant’s grantor which was
not the case in the Dotwaah’s
case. Also, in the peculiar
facts of this case, the
plaintiff registered her land
before evidence was taken and
judgment delivered whereas the
defendant who had counterclaimed
had not registered his land.
Further,
in the peculiar facts of this
case, the plaintiff was in
possession of the land before
the grant was made of the same
land to the defendant. Though
this fact became known to the
Kissiedu Kwaasi, Danquah and
Asona families, they took not
step timeously to challenge the
grant made to her and to set it
aside.
We are not
prepared to allow Kwame Kissiedu
Kwaasi or his immediate and
wider family to benefit from
this double sale of the land in
dispute. In as much as the
plaintiff’s possession is
earlier in time to that of the
defendant and on the
preponderance of probabilities,
the trial judge was right in
finding as a fact that the
plaintiff bought her land first.
The learned trial judge was also
right in holding that the
grantor of the plaintiff could
not six years after the sale to
her grant the same land to the
defendant’s grantor. We,
therefore, allow the appeal, set
aside the judgment of the Court
of Appeal and restore the
judgment of the trial Circuit
Court in favour of the
plaintiff.
N. A. AMEGATCHER
(JUSTICE OF
THE SUPREME COURT)
J. ANSAH
(JUSTICE OF
THE SUPREME COURT)
V. J. M.
DOTSE
(JUSTICE OF
THE SUPREME COURT)
S. K.
MARFUL-SAU
(JUSTICE OF
THE SUPREME COURT)
A.
M. A. DORDZIE (MRS.)
(JUSTICE OF
THE SUPREME COURT)
COUNSEL
K. AMOAKO
AGYEI FOR THE
PLAINTIFF/RESPONDENT/APPELLANT.
JOSEPH GYAMFI
FOR THE
DEFENDANT/APPELLANT/RESPONDENT
WITH HIM PATRICIA KOFIE
|
