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IN THE SUPERIOR COURT OF JUDICATURE

IN THE HIGH COURT OF JUSTICE HELD IN ACCRA ON FRIDAY DAY,

THE 15^TH DAY OF MAY, 2009 BEFORE HIS LORDSHIP MR. JUSTICE

S.H. OCRAN.

SUIT NO. BL211/2009

                      _______________________________________________________

EMMA OKWESIE

 VRS

  E. O. ADJETEY

________________________________________________________

J U D G M E N T

The plaintiff by her writ of summons filed on 31^st January 2005 claimed the following:

1. Declaration of title to all that piece or parcel of land measuring 0.27 of an acre in extent registered as No. GA. 16774 in Land Register Volume 12 Folio 502.

2. General damages for trespass.

3. Recovery of possession

4. Perpetual injunction restraining the Defendant, his servants, agents, assigns and anybody claiming through him from further trespassing on the land in dispute.

The statement of claim that accompanied the writ of summons traced the plaintiff’s root of title from one Elizabeth Chardey Yartey who held land Title certificate number

 GA 4548, which certificate has now been transferred to the plaintiff and been registered as No. GA 16774. The plaintiff also pleaded that she acquired the land through an Estate Agent called Mr. Debrah.

The defendant filed a statement of Defence and stated that he acquired the land from Elizabeth Chardey Yartey and a deed dated 3^rd November, 2000 was executed in his favour. The defendant stated that he acquired the land after he had assisted the family in a litigation over the land.  He then counter- claimed for the following:

1. A declaration of title to all that piece or parcel of land measuring about 0.27 of an acre and popularly referred to as plot No. 109, Adzoate Street, North East Christianborg, Osu, Accra.

2. An order cancelling the land certificate No. GA16774 issued by the Land Title Registry to Plaintiff on grounds of fraud and or mistake.

3. Perpetual injunction restraining the plaintiff, her assigns, workmen, servants and agents from interfering with the said land.

The issues set down for determination on 2-3-06 were as follows:

1. Whether or not the plaintiff acquired the land in dispute from the late Elizabeth Chardey Yartey, whose title was registered as Land Certificate No. GA14548.

2. Whether or not the plaintiff went into possession of the land on acquiring same.

3. Whether or not the plaintiff’s acquisition of the land was fraudulent.

4. Whether or not the Defendant is a trespasser on the land in dispute.

5. Whether or not the plaintiff is entitled to her claim.

6. Whether or not the Defendant is entitled to his counter- claim.

7. Whether or not the signature of the late Elizabeth Chardey Yartey appearing on the indenture of the plaintiff is a forgery.

The plaintiff led evidence through an Estate Agent, Mr. Ernest Debrah, who was given power of attorney and was tendered and admitted as exhibit ‘A’.

Mr. Ernest Debrah led evidence that he bought the land for the plaintiff from Madam Elizabeth Chardey Yartey who was then living at Sakumono. He negotiated the price with Madam Elizabeth Chardey Yartey and Henry Obido Ofori and agreed on

¢130, 000,000.00 now GH¢13, 000.00. He was then given the Land Title Certificate of Madam Elizabeth Chardey Yartey with which the plot was registered in the name of the plaintiff, as the 4^th entry affecting that land. On Exhibit ‘C’ the date of the instrument is 8^th December 2000 and the date of Registration was 24^th July, 2001. Exhibit 3 is the land title certificate of Elizabeth Chardey Yartey and it is the 3^rd entry affecting that land.

That instrument was dated 4^th June, 1976 but was registered on 17^th March, 1999. Since the land stands in the name of Elizabeth Chardey Yartey, the plaintiff was right in dealing with her. In the case of Brown vrs Quarshigah (2003-04) SCGLR 930, the Supreme Court held that

‘under sections 43 (1) – (4) and 48 of the land title registration law 1986 (PNDC L152), a certificate issued under that law creates a right which is indefeasible and shall be held by the proprietor together with all privileges and appurtenances attaching thereto free from all other interests and claim whatsoever.  ’An indefeasible title meant a complete answer to all adverse claims on mere production of the certificate’.

The defendant attempted to prove that the land was family property and that Elizabeth Chardey Yartey was holding it in trust for the family since the land belonged to her father. D.W.1 however, gave her father’s name to be Mr. Rudolf Nelson Ofori Kofi but from exhibit 2 it is stated that the site Marked ‘A’ is affected by partition dated 30^th January, 1979 from S.H. Obido Ofori to Elizabeth C. Yartey. This exhibit shows that either D.W.1 is not a sister to Madam Elizabeth Chardey Yartey or that the land never belonged to her father. If S.H. Obido Ofori is the father of Elizabeth C. Yartey, then it meant the land was partitioned and given to her, as it stands in her name. 

By her land title certificate she became the owner.  The defendant in cross- examining the plaintiff put up a case that it was Henry Obido Ofori who sold the land to the plaintiff and this was denied.  He went further that this Henry Obido Ofori made an undertaking to refund the money involved to the plaintiff but this the attorney said he was not aware.

Again, the defendant argued that since Elizabeth Chardey Yartey died on 8^th February 2001, but the land title certificate was issued in July 2001, Elizabeth Yartey cannot be the person who executed the document of transfer.  Exhibit ‘C’ shows that the instrument was executed on 8^th December, 2000.

The attorney also gave evidence that when he paid the contract price Elizabeth Chardey Yartey gave her land title certificate to him and he used same in registering. 

D.W.1 also gave evidence that money was sent to Elizabeth Chardey Yartey but she said it should be taken away. These pieces of evidence suggest that the transaction took place before the death of Elizabeth Chardey Yartey on 8^th February 2001.

I therefore hold that the plaintiff acquired the land in dispute from Elizabeth Chardey Yartey before she died.  It also follows that the acquisition by the plaintiff was not fraudulent since Elizabeth Chardey Yartey was not dead by 8^th December 2000 when the instrument was executed, as the defendant pleaded in paragraph 9 (a ) of the particulars of fraud.  

The next issue to consider is whether or not the signature of Elizabeth Chardey Yartey was forged, as was pleaded in paragraph 9 (b) of the statement of defence.  Since it is the defendant who alleged this fraud he should have proved it.  The defendant did not however tender any document with the accepted signature of Elizabeth Chardey Yartey, not even the document that he alleged was signed by Elizabeth Chardey Yartey for him.  Since the defendant who alleged the forgery has failed to proof it, I dismiss the claim of forged signature of Elizabeth Chardey Yartey, since it is well established that a finding of fraud is not to be made without clear and cogent evidence - ref. Boateng No. 2 Vrs Manu No. 2 & another (2007-08) SCGLR 1117. 

Again in Fenuku & Another Vrs John Teye and Another (2001-02) SC GLR 985, it was held that the law regarding proof of forgery or any allegation of a criminal act in a civil trial was governed by section 13(1) of the Evidence Decree 1975 (NRCD 323) which provided that the burden of persuasion required proof beyond reasonable doubt ……..).

   The case of the defendant is that he acquired the land from the family of Elizabeth Chardey Yartey, as he negotiated with Ofori Kofi who is the same as Henry Obido Ofori and Mary Ofori.  The defendant tendered exhibits 1, 1a, 1b, and 1c, which were admitted on condition that they are stamped as evidence of payment.  To date, these exhibits have not been stamped and need not be considered.  I however, decided to carefully study these exhibits i.e. 1, 1a, 1b, and 1c.

 I saw that it was not Elizabeth Chardey Yartey who received the monies mentioned.  There was also no indication that those persons collected any money on behalf of Elizabeth Chardey Yartey.   Exhibit 1 has an endorsement to the effect that one Godfred Nii Boi Ofori Cofie has taken one million cedis from Mr Adjetey as an advance from a plot sold to him at Osu. 

It was dated 5^th January, 2000.   On the same exhibit 1, there is another endorsement that ¢500,000.00 paid to Mary Odoi on 17^th January, 2000 bringing the total cost paid (excluding drink money, transport, etc) to ¢3,000,000.00.   This has not been signed.   There is yet another endorsement on exhibit 1, to the effect that ¢2.5 million was collected on 29^th March, 2000.    On exhibit 1A it is stated as follows “I Godfred Nii Boi Ofori Coffie on this day 25^th July, 2000 has collected an amount of ¢1, 000,000.00 (one million cedis) from Mr Adjetey, through Miss Vivian Abbey being an advance payment of an amount to be given me”. 

It is dated 28^th July, 2000.  From these pieces of evidence, I hold that the defendant did not deal with Madam Elizabeth Chardey Yartey, but with other persons in a transaction that has nothing to do with the plot in issue.  I do not believe that Elizabeth Cardey Yartey executed any document for the defendant on 3^rd November, 2000 as stated on exhibit 4.  So far as the ownership of the plot in dispute is concerned exhibit 5 the building permit cannot be of any importance.  

The defendant admitted under cross examination that exhibits was prepared in his own office and signed by one of his staff in January, 2005.  At that time he knew Elizabeth Chardey Yartey was dead.  It was on 7^th June, 2005 that Accra Metropolitan Assembly received it.  It was on 15^th July, 2005 that approval was given for a house to be built on the land.

This writ was issued on 31^st January, 2005.  Before then various letters had been written to the defendant asking him to vacate from the land.  Exhibit D is dated 17^th December, 2004 and reference was made to another letter dated June 2003, a copy of which was attached to exhibit ‘F’, which is an affidavit in opposition filed by the defendant.

Since the land had as at 8^th December, 2000 been sold to the Plaintiff and Registered in her name on 23^rd July, 2001, she the plaintiff became the legal owner and therefore the person in occupation. 

In Akoto Vrs Gyamfi-Addo and Another (2005-06) SCGLR 1018, it was held that “In land law possession was used not in the popular sense of physical occupation of the land but it included receipts of rents and profits or the right to receive same ….). The defendant therefore had no right to occupy the land from that date without the consent of the plaintiff.

The defendant therefore became a trespasser from the time he received the letter dated 11^th June, 2003, being the letter the defendant attached to exhibit ‘F’ as its exhibit ‘B’.

The defendant has also argued that since he was in occupation, the Plaintiff should not have acquired the land.

The Plaintiff however counteracted this by arguing that the defendant was originally not in occupation, and that the walls on the land were constructed by neighbours but not by the defendant.   The defendant admitted that two of the walls were not constructed by him, but only one of them was constructed by him.

  Since exhibit 5 indicates that at the time that defendant applied for the building permit, the Plaintiff was the legal owner, and the defendant as an Architect knows that without a building permit one cannot legally undertake any development on a building plot, I accepted the Plaintiff’s case that the defendant was not on the land at the time that she acquired the land, but only went unto the land after the Plaintiff had acquired same and registered it in her name.

Since by the authority of Akoto Vrs Gyamfi – Addo and Another (supra) possession does not mean physical possession, but include right to receive rent and profit, I enter Judgement for the Plaintiff on all her reliefs as follows:

1. The plaintiff is declared owner to all that piece or parcel of land, measuring 0.27 of an acre in extent and registered as No. GA. 16774 in Land Register Volume 12 Folio 502.

2. GH¢5,000.00 damages for trespassing unto the land.

3. Recovery of possession of any portion of the land in dispute in possession of the defendant or any agent of his.

4. The defendant, his agents, servants, privies, etc are perpetually restrained from further trespassing on the land in dispute.

The defendant’s counter- claim is dismissed.

The order of Interlocutory Injunction imposed on the parties is hereby set aside.

Cost:- The plaintiff is awarded cost of GH¢4,000.00.

Counsel:                   Dr. Philip Anderson with Yaw Adjei Afram holding S. K. Amoah’s brief for Plaintiff

                                    Mr. Sarfo Boaben for Defendant

                                                                                    (SGD)MR.S. H. OCRAN J.

            JUSTICE OF THE HIGH COURT