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Land -
Declaration of title - Land
Title Certificate - Vesting
asset - Damages for trespass -
Cancellation of the Land Title
Certificate on grounds of fraud
- Boundary dispute - Locus in
quo
HEADNOTES
The claim of
the plaintiffs is based on the
simple ground, that the land was
acquired by their grandfather in
or about 1911. The said
grandfather whose name was not
pleaded enjoyed the use of the
land and upon his death the land
became the property of the
father of the plaintiffs’. It
was after the death of the
plaintiff’s father that the
property passed to the
plaintiffs’ as successors. It
was part of the pleadings and
evidence that the statutory
declaration covering the land
was used to procure a
Land
Title Certificate covering
the land. The cause of action
against the defendants is that
the defendants had broken the
wall on part of the land which
serves as the boundary between
the defendants’
predecessors-in-title’s land and
that of the plaintiffs.
The defendant controverted most
of the allegations of facts
pleaded but it appears that when
the evidence was led it became
clear that the defendants
acquired their land from one Mr.
Yawson who inherited the land
from his father. After the
death of the first defendant’s
father, the property passed on
to the first defendant. A
vesting
asset was prepared after the
administrators had applied for
and obtained letters of
administration for the property
to be vested in the first
defendant who sold the property
to the second defendant. In the
course of his evidence, the
second defendant claimed that
the property was acquired in the
name of his firm for a
warehouse. The defendants’ also
counterclaimed for title and
damages
for trespass and prayed for
a further order for cancellation
of the Land Title Certificate
granted to the plaintiffs, on
grounds of fraud, The
learned judge after going
through the evidence including
the maps entered judgment for
the plaintiffs, The defendants
lodged an appeal against the
judgment of the trial court on
several grounds. The Court of
Appeal dismissed the appeal
HELD
The learned
justices of the Court of Appeal
even though appreciated
correctly that the core issue
was one of boundary, it was able
to justify the findings made by
the learned trial judge without
assigning any cogent reasons
whatsoever. While we commend
them for locating the main issue
in dispute, their Lordships
should have gone further to
justify the findings made by the
trial judge which we find to be
wholly in error and thus leading
to the issue of the boundary
unresolved by the two lower
courts.
It is out respectful
opinion that the appeal be
allowed. We cannot at this
second appellate court make any
proper findings on the location
of the exact boundary between
the parties even though several
site plans have been tendered,
it is essentially the duty of
the learned trial judge to do
so. It is therefore ordered
that there should be a fresh
hearing of the matter, even
though parties may have to go
through another lengthy trial,
the justice of the occasion
demands that it should be so.
STATUTES
REFERRED TO IN JUDGMENT
CASES
REFERRED TO IN JUDGMENT
Anane v.
Donkor [1965] GLR 188
Akoto v.
Kavege [1984-86] 1 GLR
385
Re Aryeetey
(Deceased) Aryeety v. Okwabi
[1987-88] 2 GLR 44 CA.
BOOKS
REFERRED TO IN JUDGMENT
DELIVERING
THE LEADING JUDGMENT
YEBOAH, JSC:-
COUNSEL
J. H. QUIST,
PRUDENTIAL LAW OFFICES FOR THE
DEFENDANTS/ APPELLANTS/
APPELLANT.
GEORGE ESHUN,
AMARTEIFIO AND CO. FOR THE
PLAINTIFFS/ RESPONDENTS/
RESPONDENTS.
___________________________________________________________________________
J U D G M E N T
__________________________________________________________________________
YEBOAH, JSC:-
The respondents in this appeal
commenced an action against the
appellants as defendant at the
High Court, Accra. By the
amended writ of summons the
plaintiff claimed against the
defendants jointly and
severally, a
declaration of title to the
land
described in the schedule and
other ancillary reliefs. The
land the subject matter of the
action is at Tudu, South East of
Adabraka, Accra.
The claim of the plaintiffs is
based on the simple ground, that
the land was acquired by their
grandfather in or about 1911.
The said grandfather whose name
was not pleaded enjoyed the use
of the land and upon his death
the land became the property of
the father of the plaintiffs’.
It was after the death of the
plaintiff’s father that the
property passed to the
plaintiffs’ as successors. It
was part of the pleadings and
evidence that the statutory
declaration covering the land
was used to procure a
Land Title Certificate covering
the land. The cause of action
against the defendants is that
the defendants had broken the
wall on part of the land which
serves as the boundary between
the defendants’
predecessors-in-title’s land and
that of the plaintiffs.
The defendant controverted most
of the allegations of facts
pleaded but it appears that when
the evidence was led it became
clear that the defendants
acquired their land from one Mr.
Yawson who inherited the land
from his father. After the
death of the first defendant’s
father, the property passed on
to the first defendant. A
vesting asset was prepared after
the administrators had applied
for and obtained letters of
administration for the property
to be vested in the first
defendant who sold the property
to the second defendant. In the
course of his evidence, the
second defendant claimed that
the property was acquired in the
name of his firm for a
warehouse. The defendants’ also
counterclaimed for title and
damages for trespass and prayed
for a further order for
cancellation of the Land Title
Certificate granted to the
plaintiffs, on grounds of fraud.
From the record of proceedings,
several interlocutory
proceedings were taken before
the trial court which do not
appear to be necessary for the
determination of this appeal.
As stated above, both parties
did not dispute that their
predecessors-in-title owned
their respective lands. Even
though several issues were
joined to establish the title of
both parties, at the application
for directions stage, the core
issue which the trial court was
confronted to resolve was not
the issue of ownership but a
boundary
dispute between the
plaintiffs and the first
defendant whose title to his
land had passed to the second
defendant. This indeed became
very clear before His Lordship
Justice Tweneboah – Kodua on
26/06/1995 when he made this
formal order:
“By
Court: The Chief Surveyor
of the Survey Department is
accordingly appointed to
undertake the job of making a
composite plan of the area in
dispute and superimpose the
respective plans of the parties
herein to help resolve the
dispute between the parties.
Specifically the Chief Surveyor
will determine the boundaries of
the land the parties claim to be
theirs, particularly in the
light of the registration of
1940 and 1994 herein exhibited
by the parties.
He
will determine whether there is
any conflict at all and the
extent of the conflict and make
a report”. {Emphasis ours}
Even though this order was made
in one of the interlocutory
proceedings, it would appear
that at that stage, even before
the close of pleadings, the
trial court was of the opinion
that the issue at stake was the
boundary between the plaintiffs
and the defendants. This core
issue eluded both the trial
court and the court of Appeal in
deciding this matter. It did
appear, however, that on the
11/04/97 when the trial court
presided over by His Lordship
S.T. Fakye was taking evidence,
one Joseph Enstia-Mensah, a
surveyor from the Department of
Survey gave evidence.
He did not in any way say that
he was representing the Director
of surveys or the Director of
Surveys commissioned him to do
the survey as ordered by the
court in the formal order
referred to above. When he was
subjected to cross-examination
this was what he said in answer
to the questions by counsel for
the plaintiffs:
Q. Were you part of the team
that went to the site?
A. No
Q. Have you ever been to the
site?
A. Yes
Q. When you went to the site
you looked at all the land
marks?
A. Yes
Q. From point A2 – B4 was a
broken wall?
A. Yes
Q. Is the wall the boundary
between the defendants’ land and
the
land in dispute?
A.
Yes
In another
coincise cross-examination by
the counsel for the defendants
the witness said as follows;
Q.
There is no licensed surveyor
who signed the site plan of
the plaintiffs
A. No
Q. Is the
document dated?
A. No
The witness
proceeded to tender exhibit C2
but the plaintiffs sought to
tender another site plan in a
Land Title Certificate through
the witness as exhibit C3
The trial
proceeded and both sides led
evidence to establish their
respective titles. The trial
judge proceeded to the
locus in
quo. The record of
proceedings, however, does not
show the notes she made there as
a judge. She, expressed herself
in the judgment that “ I have
no doubt in my mind that the two
plots are distinct from each
other” It appeared further from
the opinion expressed in the
judgment of the High Court about
inconsistency in the maps. The
learned trial judge further
stated as follows
“It is
true, looking at the two
exhibits, there is a clear
inconsistency in the maps as the
positions of the two plots.
Hence, the ridiculous situation
of having two plots 10 and 20
being claimed by second
defendant and plaintiffs
respectfully…It appears
therefore that the people form
the Survey Department and Land
Title had drawn their maps as a
result of what probably
indicated to them by the parties
notably the second defendant”
The learned
judge after going through the
evidence including the maps
entered judgment for the
plaintiffs
by relying on
what she described as the
correct site plan which are
exhibits 1 and 2. She also
dismissed the counterclaim of
the defendants.
The
defendants lodged an appeal
against the judgment of the
trial court on several grounds.
The Court of Appeal dismissed
the appeal
on
4/12/2008. This appeal is from
the judgment of the Court of
Appeal. Before us several
grounds of appeal have been
argued to seek the reversal of
the judgment.
At the Court
of Appeal the learned judges in
their opinion were confronted
with this core issue of
boundaries. Cases like ANANE
V. DONKOR [1965] GLR 188 and
AKOTO V. KAVEGE [1984-86]
1 GLR 385 which establish that
failure to identify the
boundaries of the land with
accuracy would be fatal to a
claim for declaration of title
to land. On this the Court of
Appeal expressed itself as
follows;
“The
respondent had claimed for
declaration of title and
recovery of possession and admit
the they share boundary with the
first appellant and therefore he
needed to positively establish
the identity of the land in
dispute and establish the
boundary between his land and
the land for the appellant”
The court
also expressed similar opinion
on the above proposition of the
law against the defendants who
had lodged a counterclaim.
As both
parties were not contesting the
issue of title from the evidence
and the pleadings but the issue
of boundary, it was imperative
that clear findings on this
ought to have been made by the
learned trial judge. Land Title
Certificate with its site plan
of the subject matter may not be
conclusive evidence of the
boundaries of the subject
matter. It may be prima facie
evidence of title to the
property, the subject matter of
the registration, but when a
boundary dispute is in issue
with adjoining land a court of
law is bound to ascertain the
exact boundaries of the
parties. This could be done if
parties had met the surveyor who
was enjoined by the order of the
court to carry out the survey
work. In this case, the
surveyor admitted that he was
not part of the team that went
to the site. The learned judge
who visited the land with the
court clerk failed in her duty
as a trial judge to record notes
of the visit and the impressions
gathered therefrom. Reliance,
however, was placed on the
evidence of CW3 one Agnes Nyarko
who was a court official.
Indeed the judge placed no
reliance on the plan drawn by
the surveyor but offered no
reasons for so doing.
The trial
judge relied on Exhibits 1 and 2
to say that they “correspond
with what is actually on the
ground and exhibit CB3 which
seeks to divide into plots 10
and 20 is either mischievous
design or a genuine mistake”
We find from
the judgment of the Court of
Appeal that no effort was made
to find from the facts the
reasons for the trial judge’s
rejection of the evidence placed
before her in respect of the
exact boundaries of the parties
and her own impression of the
visit to the locus in quo.
The action
being essentially one of a
boundary dispute the trial judge
was enjoined to locate the
boundaries of the parties
through proper admissible
evidence on record and give
reasons for so believing one
side against the other. See In
Re
Aryeetey (Deceased)
Aryeety v. Okwabi
[1987-88] 2 GLR 44 CA.
The learned
justices of the Court of Appeal
even though appreciated
correctly that the core issue
was one of boundary, it was able
to justify the findings made by
the learned trial judge without
assigning any cogent reasons
whatsoever. While we commend
them for locating the main issue
in dispute, their Lordships
should have gone further to
justify the findings made by the
trial judge which we find to be
wholly in error and thus leading
to the issue of the boundary
unresolved by the two lower
courts.
It is out
respectful opinion that the
appeal be allowed. We cannot at
this second appellate court make
any proper findings on the
location of the exact boundary
between the parties even though
several site plans have been
tendered, it is essentially the
duty of the learned trial judge
to do so. It is therefore
ordered that there should be a
fresh hearing of the matter,
even though parties may have to
go through another lengthy
trial, the justice of the
occasion demands that it should
be so.
ANIN YEBOAH
JUSTICE OF THE SUPREME COURT
S. A. BROBBEY
JUSTICE OF THE SUPREME COURT
J. ANSAH
JUSTICE OF THE SUPREME COURT
J. V. M. DOTSE
JUSTICE OF THE SUPREME COURT
V.
AKOTO-BAMFO (MRS)
JUSTICE OF
THE SUPREME COURT
COUNSEL:
J. H. QUIST,
PRUDENTIAL LAW OFFICES FOR THE
DEFENDANTS/ APPELLANTS/
APPELLANT.
GEORGE ESHUN,
AMARTEIFIO AND CO. FOR THE
PLAINTIFFS/ RESPONDENTS/
RESPONDENTS.
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