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JUDGMENT
1. By writ issued on
20/11/2003 the Plaintiff claims
from the Defendant as follows:
“(a). Declaration of title
to all that parcel of land
situated at New Ashongman
Residential Area, Accra and
measuring 0.39 acre.
(b). An injunction to
restrain the Defendant, his
agents assigns or servants from
entering into the land in
dispute or otherwise interfering
with the enjoyment of the
Plaintiff.
(c). Damages
for (Transfers) Trespass.
(d). Damages
for Fraud”.
2. In an accompanying
statement of claim the Plaintiff
described the land in terms of
the site plan attached to a deed
of lease dated 10th
October 1995 between one Iddrisu
Ayaa Tettey on the one hand as
lessor and the Plaintiff as
lessee which transaction was
registered at the Lands Registry
as No. 1469/1998.
3. The Plaintiff’s case
is that he has since exercised
rights of ownership by engaging
labourers to clear weeds on the
subject matter and has applied
for and was granted a building
permit to construct a dwelling
house thereon. Plaintiff alleged
that sometime in October 2003
Defendant and his workmen
wrongfully entered the subject
matter and started building on
same thereby committing
trespass. Plaintiff further
alleged that the Defendant made
false representations to the
Lands Commission with the view
to misleading the Commission to
make entries in their records to
the effect that Plaintiff has
agreed to transfer his interest
in the subject matter to the
Defendant. Having failed to
comply with Plaintiffs verbal
warnings to stop the acts of
trespass, the Plaintiff
constituted this action against
the Defendant for the reliefs
endorsed on the writ.
4. DEFENDANT’S CASE
Defendant’s case is that he is
only a caretaker to one Humu
Suleman Majeed his wife who
Defendant claims had purchased
the same subject matter from one
John Armah Mensah sometime in
1994 at a time when the land had
erected on it a small structure.
Defendant averred that after his
wife had also erected some
structures on the land he got
information that one Iddrisu
Ayaa Tettey (presumably
Plaintiff’s vendor) had won a
case with respect to the same
subject matter. Defendant claims
it was the said Iddrisu Ayaa
Tettey who resold the subject
matter to his wife which was
evidenced by indenture dated
4/6/96 stamped as LVB 8009/03
and plotted as AR6011A/96.
Defendant claims his wife had
been in possession of the
subject matter since acquisition
and had deposited sand and other
building materials intended for
the construction of a petrol
station thereon. Defendant
claims that it was in 1997 when
his wife decided to put up a
building on the land that the
Plaintiff emerged to claim
ownership of the land. The
Defendant denied the Plaintiff’s
allegation of fraud and
reiterates that the Plaintiff
has not suffered any loss since
the subject matter never belongs
to the Plaintiff in the first
place.
5. At the close of
pleadings the following issues
were set down for determination
by the Plaintiff.
“1. Whether or not the
Plaintiff is the owner of the
land described in the statement
of claim.
2. Whether or not the
Defendant has trespassed on the
land.
3. Whether
or not the Defendant is guilty
of fraud.
4. Whether or not the
Plaintiff is entitled to the
reliefs endorsed on the writ of
summons?
5. Any other
issues arising from the
pleadings”.
No additional issues were filed
by the Defendant for
determination at the trial.
6. DETERMINATION OF
ISSUES BY THE COURT
The issues to be determined
between the parties are both
factual and legal and in
determining those issues proof
of any allegation of fact
contained in the statement of
claim or defence is required on
any party who has the burden of
proof to the standard prescribed
by law. As Kpegah J. A. (as he
then was) had stated in the case
of ZABRAMA VRS. SEGBEDZI (1991)
GLR 221.
“a person who makes an
averment or assertion which is
denied by his opponent has a
burden to establish that his
averment or assertion is true.
And he does not discharge this
burden unless he leads
admissible and credible evidence
from which the fact or facts he
asserts can properly and safely
be inferred. The nature of each
averment or assertion determine
the degree and nature of the
burden”.
7. The standard of proof
required however is the standard
of proof in civil cases which is
one on the balance of the
probabilities as provided for
under sections 11(4) and 12 of
the Evidence Act 1975 NRCD
(323). In recent times the
Supreme Court has given judicial
confirmation of the standard of
proof in land cases when it held
in the case of EFFISAH VRS.
ANSAH (2005 – 2006) SCGLR 943
per Lartey JSC that the age old
principle in the case of
KODILIYNE VRS. ADU 1935 WACA 336
which was followed by the Court
of Appeal in the case of DUAH
VRS. YORKOAH (1993 – 94) 1GLR
217 and which had established
that the obligation or burden to
adduce evidence should be placed
on the Plaintiff because the
action being a land case, the
Plaintiff should have to succeed
on the strength of his own case
and not the weakness of the
Defendant’s case has been
drifted away by the courts and
has tilted towards the
requirement to prove on the
balance of probabilities in
actions of title to land.
8. It is in the context
of the standard required of the
Plaintiff as provided for by the
provisions of section 11(4) and
12 of the Evidence Act (NRCD
323) and by case law authority
referred to above, that I shall
examine the evidence of the
Plaintiff and evaluate same in
terms of the standard of proof
required.
9. PLAINTIFF’S
EVIDENCE
The Plaintiff gave evidence for
himself. He testified with
respect to the identity of the
land, as plot No. 270 its size,
his grantor and tendered Exhibit
‘A’ the registered deed of lease
between Plaintiff and his
grantor Iddrisu Ayaa Tettey. He
further testified that after
duly registering the subject
matter he applied to the Ga
District Assembly for building
permit Exhibits ‘B’ and ‘B1’ the
application and building permit
respectively. His testimony was
also that as he was in the
process of developing the
subject matter he was resisted
by a land guard called Labran
who claimed to have purchased
the land in dispute from the
chief of Kwabenya. Plaintiff
further testified that
subsequent to his confrontation
with Labran two other persons
who claimed to be acting on the
instructions of one Hajia who
had purchased the land from the
man referred to as Labran
confronted him but upon citing
his documents they were
convinced that the land did not
fall under the control of the
Kwabenya chief. The Plaintiff
denied the claim to ownership of
the subject matter as averred in
the Defendant’s statement of
Defence. He admitted that the
structure erected on the land
being claimed by the Defendant
and his wife was erected by the
said Labran.
10. Under cross
examination by Defendant’s
counsel the Plaintiff admitted
that at the time of his initial
entry into the subject matter
there was a structure thereon
though his vendor had informed
him the structure belonged to a
land guard and he had allowed
other persons to live there. The
Plaintiff denied a suggestion to
him that the structures he met
on the land belonged to the
Defendant and further denied a
suggestion that he is using
documents relating to a property
in which he lives proximate to
the subject matter as a ploy to
cover the subject matter. The
Plaintiff admitted knowing one
Korquaye Morkah a witness to the
lease created in Plaintiff’s
favour but denied a suggestion
from Defendant’s counsel that
the said woman ever reported him
to the Kwabenya police. To a
suggestion that Exhibit ‘A’ has
nothing to do with the subject
matter the Plaintiff rejected
the suggestion adding that
Exhibit ‘A’ has everything to do
with it. To a further a question
under cross examination, the
Plaintiff answered that he had
caused stone chippings and sand
to be deposited on the land
adding that he is in possession
of the subject matter legally.
In further answer to questions
under cross examination the
Plaintiff gave an account of how
an officer at the Lands
Commission had asked him if he
had transferred his land to
somebody else and that documents
shown to him at the Commission
had shown that he had
transferred his interest in the
land to the Defendant. The
Plaintiff attributed same to the
misrepresentation of the
Defendant to the officers of the
Land Commission.
11. The Plaintiff denied a
suggestion by Defendant’s
counsel that the plot in
contention is plot No 271
insisting that it is plot No.
270 registered in his name which
was trespassed upon by the
Defendant.
12. From the evidence of
the Plaintiff and answers to
questions under cross
examination, I find that his
evidence was largely unimpeached
by Defendant’s counsel nor was
he discredited as an untruthful
witness. The registered deed of
lease between Plaintiff and his
grantor admitted in evidence
without objection could not be
impeached in terms of its
relevance and probative value
while evidence of the
Plaintiff’s possession during
examination in chief was
confirmed by answers to
questions under cross
examination.
13. One Kobena Asante
‘PW1’ was called by the
Plaintiff to give evidence. His
evidence was that he used to do
construction work for the
Plaintiff and had been a
caretaker of the subject matter
on behalf of the Plaintiff. He
corroborated Plaintiff’s
evidence that a ‘landguard’ by
name Labran had put up some
structures on the land and had
put some persons in possession.
He testified that it was he who
called the Plaintiff when the
Defendant started laying claims
to ownership of the land.
14. Under cross
examination by Defendant’s
counsel, witness insisted that
it was the Plaintiff who put him
possession of the subject matter
as a caretaker and that he had
co – existed with the other
occupants who had been occupying
the other structures given to
them by the said Labran. To a
question whether by 1990 when
the witness claimed he and
others were putting up a
property for the Plaintiff near
the subject matter the witness
was taking care of the subject
matter, the witness answered in
the affirmative adding that the
Plaintiff had shown the land to
him. Answering further
questions, the witness denied a
suggestion that the occupied
structures on the land belonged
to the Defendant’s wife.
15. He further denied a
suggestion that he had never
weeded the subject matter on
Plaintiff’s behalf before and
further denied that the
occupants of the structures were
there on the authority of one
Larry. The witness also answered
to a question that there was an
occasion the Plaintiff and
Defendant met on the land
leading to a heated argument but
denied a suggestion that the
subject matter belonged to the
Defendant and not the
Plaintiff.
16. From the line of cross
examination of Defendant’s
counsel of ‘PW1’ I deduce that
the witness’s credibility was
never impeached. His evidence
largely corroborated the
Plaintiff’s evidence with
respect to the question of
possession. He had denied all
suggestions that any occupants
met on the subject matter were
put there by the Defendant.
17. By a process of
subpoena one Trevor Kwame Yamoah
Haizel an officer from the Lands
Commission testified for the
Plaintiff. He described himself
as a Chief Technical officer in
cartography. He produced to the
court record book on document
No. AR6011/96. He tendered in
evidence Exhibit ‘C’ which is an
extract from the presentation
ledger at the Lands Commission.
His testimony is that the
document bearing the number
AR6911/96 was entered in the
ledger book on 6/9/96 in the
name of Yaw Boakye under is a
lease dated 1/11/95 with respect
to land at Dunkona in favour of
a company called Alrotech Ltd.
The witness further testified
that the said document also
bears the number AR6011/96 which
coincidentally is the same
number borne by Exhibit ‘1’ the
indenture of lease said to have
been created in favour of the
Defendant by Iddrisu Ayaa Tettey
(also Plaintiff’s vendor) dated
4/6/1996.
18. In further testimony
‘PW2’ stated that it is
impossible for two documents to
bear the same ledger
identification number as Exhibit
‘1’ the Defendant’s document and
the entry of the transaction in
favour of Alrotech Ltd. clearly
demonstrates.
19. Under cross
examination ‘PW2’ agreed with
Defendant’s counsel that when a
document is presented to the
Lands Commission for processing
the date of presentation is
indicated. The witness added
that the stamp on Exhibit ‘1’
Defendant’s lease does not
conform with the particulars of
the ledger book from the Lands
Commission. He testified that
Exhibit ‘1’ has no property
number thereon adding that by
1996 the person whose signature
had appeared as having signed
Exhibit ‘1’ was not stationed in
Accra. He stated emphatically
that the signature purported to
be that of an officer of the
Lands Commission had been
forged. To a further question by
Defendant’s Counsel ‘PW2’ stated
that Exhibit ‘1’ had no sheet
number and no property number
embossed thereon.
20. In the course of cross
examination of ‘PW2’ by the
Defendant’s counsel the
following evidence was elicited.
“Q. Mr. Haizel can you
identify all the signatures of
officers of the Lands Commission
in Accra.
A. Yes my
Lord, I know a lot of officers.
Q. What about
1996.
A. My Lord in 1996 all
the officers signing the
plotting I know their signatures
and can also identify all.
Q. How long
have you been working there?
A. My Lord I
have been working there over 30
years.
Q. So around your time
you were one of the officers who
were signing documents?
A. Yes My
Lord.
Q. You said you were one
of the officers who were signing
plotted documents so have a look
at this document, Exhibit ‘A’
shown to the witness.
A. Yes My Lord. My Lord I
have my signature at the right
hand corner of the document.
Q. What does
your signature indicate?
A. My Lord I was at the
record section and then we sent
it for plotting.
Q. You were not the only
person who was signing you were
not the only person who check
against the documents at the
Lands Commission.
A. No, My
Lord I was not.
Q. I am suggesting to you
that Exhibit ‘1’ emanated from
your Lands Commission. It was
processed at the Lands
Commission.
A. My Lord
the number does not tally with
our records.
Q. I am
saying Mr. Haizel. It emanated
from your outfit?
A. My Lord I
donot know that.
Q. Now Mr. Haizel have a
look at Exhibit ‘1’ again.
Everything on the site plan
shows that the document has been
plotted. It is correct on the
face of the document that it has
been plotted?
A. My Lord it
has not been plotted.
Q. You would agree with
me that Exhibit ‘1’ has a
presentation number?
A. Yes My Lord. There is
a number but it is not in our
records”. My Lord, I am saying
that the document counsel is
holding has a presentation
number but the number in our
presentation ledge is not in
Exhibit ‘1’.
21. In my view, the effect
of the examination of ‘PW2’ by
Defendant’s counsel, only served
the purpose of insulating ‘PW2’
as an experienced public officer
and a credible witness who not
only identified the falsehold
Exhibit ‘1’ presents but has
impeached same beyond any
reasonable doubt to this court
as a document tainted with
fraud, not known to the Lands
Commission records as the
particulars on it purports to
suggest. I find the evidence of
‘PW2’ as truthful and
unimpeachable and consequently
safe as a basis on which to make
a finding of fact that Exhibit
‘1’ was forged for the purposes
of overreaching the Plaintiff
with respect to his title and
interest in the subject matter.
Therefore the onus is on the
Defendant to prove otherwise in
his defence since the Plaintiff
having proved that Exhibit ‘1’
is a useless document of no
probative value the burden now
shifts on the Defendant to prove
that it is not so, if the court
shall not determine one or more
of the issues set down for
determination in favour of the
Plaintiff.
22. Let me now deal with
the Defendant’s defence. As was
held by the Supreme Court in RE:
KRAMS (Deceased) YANKYERAH VRS.
OSEI – TUTU, (1989 – 90) 1GLR
638.
“In civil trials, although the
burden of proof lay on the one
who must succeed in the action
it shifted in the course of the
trial”.
23. The nature of the
Defendant’s burden in this suit
is more appropriately captured
by the words of Brobbey JSC IN
RE: ASHALLEY BOTWE LANDS ADJETEY
AGBOSO & ORS. VRS. KOTEY & ORS.
(2003 – 2004) SCGLR 420 where
the learned jurist said as
follows:
“The effect of sections 11(1)
and 14 and similar sections in
the Evidence Decree 1975 may be
described as follows: A litigant
who is a Defendant in a civil
case does not need to prove
anything. The Plaintiff who took
the Defendant to court has to
prove what he claims he is
entitled to from the Defendant.
At the same time, if the court
has to make a determination of
fact or of an issue, and that
the determination depends on the
evaluation of facts and
evidence, the Defendant must
realize that the determination
cannot be made on nothing. If
the Defendant desires the
determination to be made in his
favour, then he has a duty to
help his own cause or case by
adducing before the court such
facts or evidence that will
induce the determination in his
favour………….”
24. How did the Defendant
discharge himself in this
action?
THE EVIDENCE OF
THE DEFENDANT
The Defendant’s evidence is that
he purchased the land for his
wife by name Humu from one John
Mensah the Chief of Kwabenya.
His testimony was that at the
time of the purchase there was a
structure on the land before he
constructed two other rooms. The
Defendant further testified that
though he purchased the land
from John Mensah he discovered
subsequently that the documents
of the land bore the name of
Tettey Iddrisu (same vendor for
the Plaintiff herein).
The witness testified that it
was when he visited the Lands
Department (Lands Commission)
that they were informed that the
land does not fall under
Kwabenya but Ashongman and it
was subsequent to that
information the said Iddrisu
Tettey gave him documents on the
land. The said document referred
is Exhibit ‘1’. During
examination in chief the
following was elicited between
Defendant and his counsel.
“Q. You see the Plaintiff
pleaded and also told the court
that your documents that you
registered were done
fraudulently. What do you have
to say to this?
A. My Lord, I donot know
anything about that, I sent it
to Lands and it was registered.
Q. Now the Plaintiff also
said that he also acquired the
land from one Iddrisu are you
aware of this?
A. My Lord, I went with
the Plaintiff to Iddrisu and he
said he has not sold that
portion of the land to the
Plaintiff”.
25. From Defendant’s
answers to questions under
examination in chief alone,
three factual situations have
been confirmed by the evidence
adduced from Plaintiff and ‘PW2’
They are that:
(i). The assertion of the
Defendant that Exhibit ‘1’ is a
registered document is not
supported by the evidence within
the meaning and provisions of
the Land Registry Act (1962) Act
122
(ii). The evidence that
their common vendor had denied
selling the subject matter to
the Plaintiff is not consistent
with the documentary evidence as
contained in Exhibit ‘A’ the
deed of lease between Iddrisu
Ayaa Tettey and the plaintiff.
(iii). The Defendant has
failed to adduce evidence
qualitative enough to impeach
the evidence that the ledger
identification number on his
unregistered document is a
number already assigned to a
transaction in favour of a
company called ALROTECH LTD. and
his wife’s transaction not
having been duly entered in the
ledger book at the Lands
Commission was fraudulently
procured. All the Defendant said
during examination in chief was
that he sent the documents to
the Lands Commission and it was
registered.
26. During cross
examination by the Plaintiff’s
counsel, Defendant admitted that
he had at all material times
believed the subject matter in
dispute to belong to Kwabenya
but only got to know that it
belonged to Iddrisu Ayaa Tettey
of Ashongman (Plaintiff’s
vendor) when he attempted to
regularize the documents at the
Lands Commission. In the course
of cross examination the
following evidence was elicited
from the Defendant by
Plaintiff’s counsel.
“Q. You said when you
bought the land there was a
structure on the land already?
A. Yes My
Lord.
Q. Who put up
the structure?
A. My Lord when I bought
the land the structure was
already on the land so I deemed
it that it was put there by the
person who sold the land to me.
Q. Are you telling the
court that when you saw the
structure on the land, you did
not bother to find out who put
it on the land?
A. My Lord I asked the
Kwabenya people and they said
they put up that structure on
the land.
Q. Who is the
Kwabenya people you are talking
about?
A. My Lord,
the Mensah’s family.
Q. Now did you ask
Labaran about the ownership of
that small structure?
A. My Lord, I
did not.
Q. Now when did you buy
this land from Iddrisu Ayaa
Tettey?
A. Between
1995 – 1996 My Lord.
Q. Did you
deal with Ayaa Tettey himself?
A. That is so
My Lord”.
27. It is clear from
Defendant’s answers to questions
during cross examination that he
was initially at a loss as to
who the true owners of the land
in dispute were having dealt
with the Mensah family of
Kwabenya before reverting to the
said Iddrisu Tettey who
incidentally is the same vendor
from whom the Plaintiff had
purchased his lease earlier in
time and had caused same to be
duly processed and registered.
28. Indeed not only was the
transaction between the
Plaintiff and the said vendor
properly processed by the Land
Commission, but at the time
Defendant purported to revert to
the said Iddrisu Ayaa
Tettey the latter had nothing to
sell having divested his
interest in the subject to the
Plaintiff by deed of lease dated
10/10/95 per Exhibit ‘A’.
29. The law is that no
vendor of land can give a better
title than he himself possesses.
This legal principle referred to
in the latin maxim “nemo dat
quod non habet” was
judicially confirmed in the case
of SASU VRS. AMUA SEKYI 1987 –
88 1GLR 294 cited by the counsel
for the Plaintiff in his written
address. There is no disputing
the fact that the Defendant
purchased nothing and will
therefore not be entitled to
anything.
30. I am mindful of the
decision of the Court of Appeal
in the case of BOTCHWAY VRS.
OKINE (1987 – 88) 2GLR which
held that registration under the
Land Registry Act per se will
not prevent the court from
ascertaining who has a valid
title to a piece of land and
that registration will not
confer any legal right or title
to any party who took his grant
from a person who had no title
to convey. However from the
instant suit, there is
overwhelming evidence from both
parties that the true original
owner of the land in dispute was
Iddrisu Ayaa Tettey, the
Plaintiff’s vendor and on the
basis of the Plaintiff’s
evidence and that of ‘PW2’ which
largely impeached Defendant’s
purported lease Exhibit ‘1’ as
fraudulently procured, I find
that it is the Plaintiff who is
the owner of the land described
in the statement of claim and
will therefore determine issue
(1) of the issues set down in
the application for directions
in Plaintiff’s favour. As a
consequential issue, I find and
hold that the Defendant’s
conduct amounted to trespass of
the Plaintiff’s land, subject
matter herein.
31. Before I arrived at
the findings hereinbefore
mentioned, I have examined the
evidence of ‘DW1’ Noble Gikpe
with the view to weighing same
in terms of the issues for
determination in this suit. I
find the evidence of ‘DW1’ of no
probative value in view of the
overwhelming evidence
discrediting the Defendant’s
Exhibit ‘1’ and confirming that
Plaintiff is the true owner of
the subject matter.
32. I have no doubt in my
mind whatsoever that based on
the principles in the case of
AMENIFU VRS. ODAMETEY (1977) 2
GLR 135 and ASARE VRS. BROBBEY
(1971) 2GLR 331 the Plaintiff
has established by admissible
and credible evidence which was
uncontradicted and
uncontroverted that title to the
subject matter had passed to him
before the purported subsequent
conveyance to the Defendant
which as I have found is tainted
with fraud and therefore
vitiative of any value.
33. Having found that the
Defendant’s Exhibit ‘1’ was
fraudulently procured, I have no
difficulty whatsoever in
determining issue 3 of the
issues set down for trial in
this suit in Plaintiff’s favour
and hold that the Plaintiff has
discharged the burden of proving
same in accordance with the
requirements under section 13(1)
of the Evidence Act (1975) NRCD
323 on proof of crime in civil
actions as well as the statement
of Wood JSC (as she then was) in
HILODJIE & ANOR. VRS. GEORGE
(2005 – 2006) SCGLR 974 where
the learned jurist held that:
“In civil litigation, the rules
of evidence require a rather
higher degree of proof i.e.
proof beyond reasonable doubt
whenever a crime which is
directly in issue to the main
dispute is alleged”.
34. It is on the strength
of all the findings and reasons
I have earlier given in this
judgment that I find for the
Plaintiff and accordingly grant
in Plaintiff’s favour all the
reliefs endorsed in the writ of
summons as follows:
(i). Declaration of Title
to all that piece of land
situated at New Ashongman
Residential Area Accra measuring
0.39 acre and more particularly
described and delineated in the
site plan attached to the deed
of lease between IDDRISU AYAA
TETTEY and the Plaintiff dated
10th October 1995.
(ii). Having endorsed
reliefs (c) and (d) of the writ
with claims for damages for
trespass and for fraud and not
having led evidence with respect
to quantum of loss, I shall
follow the principle in the case
of DELMAS AGENCY GHANA LTD. VRS.
FOOD DISTRIBUTION INT. LTD.
(2007 – 2008) SCGLR 748 on the
award of general damages and
shall award Plaintiff GH¢1,000
as general damages for trespass
and GH¢1,000.00 as damages for
fraud.
(iii). I hereby grant in
favour of the Plaintiff an order
of perpetual injunction
restraining the Defendant
whether by himself, privies,
agents workmen howsoever and by
whomsoever from entering any
portion of the subject matter
and from interfering or
disturbing the Plaintiff’s right
of possession and quiet
enjoyment of the subject matter.
(iv). I assess costs of
this action in the sum of GH¢1,000.00
in favour of the Plaintiff.
(SGD.)
JUSTICE I. O. TANKO AMADU
JUSTICE OF THE HIGH COURT
K. GYAWU – BAFFOUR (FOR
PLAINTIFF)
ALHAJI FAROUCK SEIDU WITH CLAUDE
OPPONG (FOR DEFENDANT) |
