JUDGMENT
By writ issued on 25th
January 2006 the Plaintiff
claims against the Defendant as
follows:
a. “Declaration of title
to all that piece of land
situate lying and being at North
West Kwashieman apetete hill
Accra bounded on the North West
by lessee’s property measuring
One Hundred feet (100’) more or
less and on the South East by
lessee’s property measuring One
Hundred feet (100’) more or less
and on the North East by
existing road measuring One
Hundred and Forty feet (140’)
more or less and on the South
West by lessee’s property
measuring One Hundred and Forty
(140’) more or less and
containing an approximate area
of 0.32 acre more or less which
piece is particularly
delineated.
b. Perpetual injunction
to restrain the Defendant, his
heirs or successors agents and
personal representatives from
interfering with the land.
c. Recovery of
possession.
d. Damages for Trespass
on to the land”
In his Statement of Defence, the
Defendant counterclaimed as
follows:
a. “An order to
cancel the Land Title
Certificate Number GA 21252
Volume 07 Folio 239 which
Plaintiff obtained from the Land
Title Registry.
b. An order for
Plaintiff to pay the Defendant
¢6million cedis being parts of
the Defendant’s building
Plaintiff destroyed”.
2. At the close of
pleadings the following issues
were set down for determination.
“(i). Whether or not
the Plaintiff is entitled to his
claim
(ii). Whether or not
the Plaintiff has been in
effective occupation and
possession of the plot of land
the subject matter of this suit
since acquiring same in 1993.
(iii). Whether or not
the Plaintiff acquired his plot
of land from Nii Kwashie Ahiaku
V Head and lawful representative
of the Ahiaku family.
(iv). Whether or not the
Plaintiff’s title to the land is
indefeasible by virtue of Land
Title Registration Law PNDCL 152
Section 43 (1).
(v). Whether or not the
Defendant’s indenture has been
procured solely and back dated
purely and solely for his
litigation.
(vi). Whether or not the
Defendant’s site plan could not
have been made on the 15th
day of June 1980.
(vii). Whether or not the
parties are disputing over the
same plot or parcel of land.
(viii). Whether or not the
Plaintiff upon the acquisition
of the 2 plots in 1993 built a
house on one and walled the
other plot.
(ix). Whether or not the
there was a building on the plot
of land which is the subject
matter of this suit.
(x). Whether or not the
Defendant used blocks which the
Plaintiff had deposited on the
plot to construct a foundation”.
The Defendant settled the
following additional issues for
determination.
“1). Whether or not
Plaintiff obtained his Land
Title Certificate No. GA
21252 Volume 7 Folio 239 by
fraud.
2). Whether or not the
Plaintiff destroyed portions of
Defendant’s building before
bring the matter to court and
3). Whether or not the
parts of the building destroyed
value ¢6,000,000.00”.
3. At the instance of
the Plaintiff an order was made
by this court on the Director of
Surveys to prepare a composite
plan of the disputed areas based
on the respective site plans
submitted by the parties.
4. I must say from the
onset that in my view a
determination of issues (ii),
(iv), (vii) and (viii) contained
in the Plaintiff’s application
for directions and the
additional issues set out by the
Defendant will effectively
determine the dispute between
the Plaintiff and the Defendant
the other issues being merely
collateral to the issues
aforementioned.
5. The Plaintiff’s case
as testified by his duly
appointed attorney Joseph
Gyapong hereinafter referred to
as ‘PW1’ is that sometime in
1993 the Plaintiff purchased two
plots of land from Nii Kwashie
Ahiaku V, fenced the plots and
starting developing one after
creating an artificial wall to
divide the two plots.
6. ‘PW1’ testified that
the Plaintiff completed the
process of land title
registration in 2005 and was
issued a Land Certificate No. GA
21252 Exhibit ‘B’. It was
further testified by ‘PW1’ that
in 24th December 2005
he noticed an encroachment which
they traced to the Defendant and
having been there for 13 years,
they reported the acts of
encroachment to the police at
Odorkor Accra. Answering
questions from Defendant’s
Counsel, ‘PW1’ denied that at
the time the Plaintiff purchased
the land there was a two storey
building on the land. ‘PW1’ also
denied a suggestion put to him
that at the time Plaintiff
purchased the said plots there
was a storey building on the
land.
7. Upon further cross –
examination by Defendant’s
Counsel ‘PW1’ denied that at the
time he brought surveyors to
inspect Plaintiff’s land for the
purposes of Land Title
Registration, he was informed
that the location of Defendant’s
building was part of Plaintiff’s
land whereupon the surveyors
went ahead and measured it as
part of Plaintiff’s land.
8. In the course of
cross – examination the
following ensued between
Defendant’s Counsel and PW1.
“Q. You destroyed part of
Defendant’s building is that not
so?
A. My Lord I only
destroyed a foundation being
made by the Defendant not a
building.
Q. The part of the
building you destroyed valued
¢6,000,000.00.
A. My Lord it wasn’t a
building it was a foundation.
Q. You will agree with me
that there is a two storey
building on the land now.
A. Even as at now he
continues putting up the
building”.
9. Let me comment on an
issue which arose during Defence
Counsel’s cross – examination of
‘PW1’ in the course of this
trial. While under cross –
examination, Counsel for the
Defendant put it to ‘PW1’ that
he has infact not registered
Plaintiff’s land documents at
the Deeds Registry within the
meaning of the Land Registry Act
1962 Act 122. In my view,
Counsel for the Defendant has
completely misconceived the
process of registration under
the Land Title Registration Act
1986 PNDC Law 152 which does not
require an applicant for a Land
Certificate to hold a registered
document under the Land Registry
Act 1962, Act 122. Suffice it to
say that a proprietor of land
who holds a Land Certificate
without more unless otherwise
determined by a court of
competent jurisdiction holds an
indefeasible title and prior
registration under the Land
Registry Act, Act 125 is not a
requirement under the Land Title
Registration regime.
10. When ‘PW2’ Inspector
John Antoh gave evidence in
support of the Plaintiff’s case
he corroborated PW1’s evidence
to the extent that sometime
about December 25, 2005 he took
up an investigation of a
complaint made against one
‘Philip’ (said to be the same as
the Defendant). ‘PW2’ testified
that while the Plaintiff’s
documents were made available
for inspection by the police,
the Defendant indicated that he
would only make his documents
available when required to do so
by court. ‘PW2’ further stated
that upon visiting the subject
matter he saw some workmen
digging a foundation on a parcel
of land which had only a fence
wall without a gate while a
number of persons were working
on a foundation.
11. Asked under cross –
examination whether as
investigator he took any
measures, ‘PW2’ answered in the
negative adding that no police
statements were taken on the
complaint.
When Counsel for the Defendant
put it to ‘PW2’ that no
investigation was conducted
arising from Plaintiff’s
attorney’s complaint, the
witness answered in the
affirmative adding that the
complainant ‘PW1’ had indicated
that he wanted to go to court.
The witness added upon further
questioning by the Defendant’s
Counsel that there was no arrest
and therefore no bail was
necessary adding that he came to
court in the name of the state.
‘PW2’ also agreed to a
suggestion by Defendant’s
Counsel that there are no
records at his station to verify
the evidence he has given on the
matter.
12. As I have stated
earlier in this judgment, at the
hearing of Plaintiff’s
application for directions in
this suit, the court ordered the
Director of Surveys to prepare a
composite plan of the area in
dispute using the respective
site plans of the parties.
13. One Samuel Quaye a
technical officer of the Survey
Department hereafter in this
judgment referred to as ‘CW1’
responded to an order of this
court and appeared to give
evidence and tendered a
composite plan dated 26 – 2 – 08
which was admitted in evidence
as Exhibit ‘C’. Because of the
crucial importance of the
evidence of ‘CW1’ in the
determination of the issues in
this case, I shall attempt to
reproduce in detail the answers
elicited during cross –
examination of ‘CW1’ by Counsel
for the Plaintiff and the
Defendant respectively.
14. Answering questions by
Plaintiff’s Counsel the
following evidence was elicited
from ‘CW1’.
“Q. The Plaintiff and the
Defendant, are we talking about
the same plot of land having
regard to the drawings that we
have here and going by the
legend.
A. From observation with
reference to the composite plan
the site plan for Solomon Attoh
which is edged violet overlaps
that of the cadastral plan No.
27707 for Fred Yeboah by about
94%. Secondly, the land covered
by cadastral plan No. 27707
which is edged yellow for Fred
Yeboah falls about 50 feet away
North West of the land that he
claimed on the ground which is
edged red. Similarly about 90%
of the land which is covered by
the site plan for Solomon Attoh
which is edged violet falls away
North West of the land he claims
on the ground which is edged
green. Conclusively there is a
shift or displacement in the
relative position of the
respective site plans for the
claimants vis – a – vis their
respective claims on the ground.
So this is the situation
pertaining on the composite
plan”
15. When the Defendant’s
counsel cross – examined the
witness the following evidence
was elicited.
“Q. The site plan for Fred
Yeboah is edged yellow.
A. Yes My Lord.
Q. The site plan for
Solomon Attoh is edged indigo?
A. Yes My Lord.
Q. The structures on the
North part falls in the area
edged indigo.
A. Yes My Lord.
Q. Part falls in the area
edged green.
A. Yes My Lord.
Q. So that in other words
both ones which was showed to
you on the ground and the site
plan they all cover the
buildings on the North.
A. Yes My Lord.
Q. The area in conflict
is only the physical aspect
which was shown to you that has
brought that conflict.
A. Yes My Lord.
Q. And the South, the one
for Fred Yeboah they all fall
within the area edged green and
edged red.
A. Yes My Lord.
Q. So the site plan of
Fred Yeboah conflicts with the
area that he has put his
building where he showed you.
A. Yes My Lord.
Q. So as a professional
surveyor, the two structures
down where are they supposed to
be.
A. They are supposed to
fall within the area edged
yellow on the composite plan.
Q. So by the answer you
have given Fred Yeboah has gone
into somebody’s land.
A. Yes My Lord.
Q. Did you look at the
size of plan that Fred Yeboah
gave to you i.e. the site plan
attached to Exhibit ‘B’ the land
certificate.
A. Yes My Lord.
Q. Did Fred Yeboah show
his indenture to you?
A. No.
Q. So this is the first
time you are seeing it.
A. Yes My Lord.
Q. You have also not seen
the site plan accompanying the
indenture.
A. No”.
16. I have decided to
reproduce in detail this
encounter with ‘CW1’ during
cross – examination by Counsel
for the parties because of its
relevance and the weight, I
shall attach to his evidence in
arriving at a determination of
the issues set down for trial in
this suit because the said
witness is a disinterested
witness who responded to the
order of court directed at the
office of the Director of
Surveys.
17. At the close of the
Plaintiff’s case the Defendant
gave evidence for himself in
defence of Plaintiff’s claims
and in proof of the counterclaim
he set up.
18. The Defendant
testified that he purchased the
land in dispute in 1980 as
evidenced by a Deed of Lease
dated 15/6/80 between Nii Lartey
Kwashie Ahiaku and himself
admitted in evidence as Exhibit
1. Defendant further assets that
he developed the subject matter
partly in 1986 by building a
hall and chamber thereon after
having cultivated the land 1982.
Defendant added that a certain
Nii Ankrah Thompson whose name
and property was captured in
Exhibit ‘C’ (the composite plan)
is his cousin and that he put
the said Nii Ankrah Thompson in
the property featured under his
name in Exhibit ‘C’. The
Defendant testified that he only
knew the Plaintiff when he was
putting up a shop in front of a
portion of the parcel of land he
purchased, because the Plaintiff
caused the foundation he had
constructed to be destroyed and
stated the value of the
foundation destroyed by the
Plaintiff as ¢6million.
19. Under cross –
examination by Counsel for the
Plaintiff the Defendant insisted
that he purchased 4 plots of
land from the Kwashieman Stool
in 1980 and denied several
suggestions to him that he was
not being truthful to the court.
20. To a suggestion by
Plaintiff’s Counsel that at
Defendant’s admitted age of 18
years, Defendant did not have
the capacity to enter into a
contract to purchase the parcel
of land in dispute, the
Defendant denied same adding
that he received assistance from
his aunt.
21. The Defendant denied
suggestions by Plaintiff’s
Counsel that Plaintiff
constructed a fence wall to
protect the disputed area in
1993 insisting that the
Plaintiff has encroached into
his land by 50 feet.
22. The Defendant further
denied a suggestion by
Plaintiff’s Counsel that he had
back dated his indenture for the
purposes of litigation.
23. The Defendant then
called one Charles Kpakpo Addo
‘DW1’ who described himself as a
draughtsman. ‘DW1’ claimed he
was in the Chiefs Palace at
Kwashieman (vendor to both
Plaintiff and Defendant) when
the Defendant came to report
that somebody had demolished his
shop. ‘DW1’ testified that, at
the Chief’s Palace the name of
the Plaintiff is not in their
records and that it is the
Defendant whose name is in their
records. When the witness was
asked to examine Exhibit ‘D’ and
asked if he could identify any
of the signatories, he denied
knowing anybody called Isaac
Tetteh who witnessed the
document and stated that though
the name of the Chief had
appeared on the document the
signature was not that of the
chief. The witness however
identified the signature of the
Kwashieman Chief on Exhibit 1
(Defendant’s deed of lease) as
well as the name and signature
of one Isaac Peter Mensah.
24. The witness further
stated that in 1993 when the
Chief of Kwashieman was
purported to have signed the
indenture accompanying Exhibit
‘B’ (Plaintiff’s deed of lease
accompanying the Land
Certificate) he was too ill to
have done so. Under cross –
examination by Plaintiff’s
Counsel ‘DW1’ testified that he
knows the parcel of land in
dispute adding that he witnessed
the damage caused to the store
the Defendant was constructing.
Asked what he saw as evidence of
demolition the witness told the
court that, he saw broken pieces
of blocks. After a series of
questions on the capacity of the
witness to determine signatures
he has testified to, the witness
stated that while it was the
Kwashieman Chief who signed
Exhibit 1 the signature
appearing on the indenture
attached to Exhibit ‘B’ cannot
be the Chief’s signature.
25. Before I proceed to
evaluate the evidence adduced in
this suit, let me say clearly
that I donot intend to attach
any weight to the evidence of
‘DW1’ in relation to his
testimony on the genuiness or
otherwise of the signature
appearing on Exhibits ‘B’ and
‘1’ tendered by the Plaintiff
and Defendant respectively. My
reasons are not far fetched.
Firstly, no evidence was led by
the Defendant as to the capacity
in which the witness who
describes himself as merely a
draughtsman appeared to give
evidence on matters involving
transactions in the palace of
the Chief of Kwashieman (The
common vendor to Plaintiff and
Defendant). The only suggestion
that he is an elder of the
palace of no disclosed
designation was in his answer to
a question under cross –
examination.
26. Secondly, in my view,
the witness does not have the
technical expertise to determine
which of the two signatures was
the true signature of the person
they have been attributed to.
Nor was the court given the
opportunity of seeing any true
and undisputed signatures of the
person whose signature on the
indenture accompanying Exhibit
‘B’ is being contested. I do not
consider the evidence of ‘DW1’
with respect to the authenticity
of the signature of the common
vendor to the Plaintiff and
Defendant as adding any value
to the credibility of the
Defendant’s deed of conveyance
Exhibit ‘1’.
27. Now, what is
Plaintiff’s burden in this suit
in order to succeed on his
claim. On the other hand, has
the Defendant on the evidence
put up a good defence and proof
of his counterclaim?
28. The law is trite that
to enable a court decide a case
one way or the other, each party
to the suit must adduce evidence
on the issues to be determined
by the court to a standard
prescribed by law.
This position is buttressed by
Section 14 of the Evidence Act
1975 which provides that:
“Except as otherwise provided by
law, unless and until it is
shifted a party has the burden
of persuasion as to each fact
the existence or non - existence
of which is essential to the
claim or defence he is
asserting”.
29.
Relating the above
provision of the Evidence Act to
this suit, there is no doubt
that whereas the Plaintiff has
the burden of persuasion in
providing sufficient evidence to
substantiate the allegations
contained in his Statement of
Claim, the Defendant has a duty
not only to provide evidence to
rebut Plaintiff’s claims once
the allegations are supported by
evidence, but to substantiate
the counterclaim he has set up.
30. In ZABRAMA VRS.
SEGBEDZI (1991) 2 GLR 221 at 224
KPEGAH J. A. (as he then was)
summed up the law on proof in
Ghana in the following words.
“……….. 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
determines the degree and nature
of the burden (The emphasis
mine)”
31.
The Plaintiff’s duty is to
substantiate his allegations by
producing evidence which is
satisfactory and in accordance
with the requirements of the
law.
In the case of MOJOLAGBE VRS.
LARBI (1959) GLR 190 at 192 the
court stated as follows:
“Proof in law is the
establishment of facts by proper
legal means. Where a party makes
an averment capable of proof in
some positive way e.g. by
producing documents, description
of things, reference to other
facts, instances or
circumstances and his averment
is denied, he does not prove it
by merely going into the witness
box and repeating the averment
on oath or having it repeated on
oath by his witness. He proves
it by producing other evidence
of facts and circumstances, from
which the court can be satisfied
that what he avers is true”.
32. From the facts
contained in the pleadings of
the Plaintiff and the evidence
marshalled from witnesses can it
be properly and safely inferred
that the Plaintiff has adduced
sufficient admissible and
credible evidence in order to
succeed?
33. As I have already said
in this judgment, ‘PW1’ has
provided evidence of title to
the subject matter per Exhibit
‘B’ his Land Certificate.
34. Evidence was led on
his behalf that the acts of
alleged trespass giving rise to
this action were noticed only in
December 2005. The Defendant has
not denied the allegation that
he entered the land in December
2005 nor does he deny the
allegation that the Plaintiff
reported the matter to the
police at Odorkor who after
preliminary enquiries abandoned
investigations. His contention
is that his entry into the land
is a matter of right and does
not constitute trespass. The
evidence of ‘PW1’ Inspector
Antoh corroborates the evidence
of ‘PW1’ only to the extent that
the police were involved in the
matter at the instance of the
Plaintiff. I donot find the
evidence of ‘PW1’ Inspector
Antoh of any other value
particularly in establishing the
reliefs sought by Plaintiff in
this suit.
35. In order to ascertain
whether or not the Plaintiff
discharged his burden
successfully, it is important to
examine the evidence of the
representative of the Director
of Surveys ‘CW1’, parts of which
I have already reproduced in
detail in this judgment.
36. It is clear from the
evidence of ‘CW1’ that the
Plaintiff’s land for which he
seeks declaration of title,
recovery of possession, damages
for trespass and injunction as
it was interpreted on the site
plan attached to his Land
Certificate is substantially
different from the position his
parcel of land is supposed to be
on the ground.
37. Indeed in his answers
during cross – examination from
both Counsel, the Court witness
said unequivocally as follows:
“Conclusively, there is a shift
or displacement in the relative
position of the respective site
plans for the claimants vis – a
– vis their respective claims on
the ground. So this is the
situation that is pertaining on
the composite plan………………”
38. While under cross –
examination by Defendant’s
Counsel the court witness gave a
more categorical answer to this
question:
“Q. So the site plan of
Fred Yeboah conflicts with the
area that he has put his
building where he showed you”.
A. Yes My Lord”.
39. In order to appreciate
the emphasis I have put on the
evidence of the court witness in
the conclusions I shall arrive
at in this judgment it is
important to establish who the
court witness is.
40. First, the witness is
a representative of the Director
of Surveys who was directed to
undertake the production of a
composite plan based on the site
plans of the parties on the
application of the Plaintiff.
41. Second, his evidence
at the trial was unchallenged
and the evidence revealed that
the land in dispute falls
substantially outside the
respective site plans
accompanying Plaintiff’s Land
Certificate Exhibit ‘B’ as well
as Defendant’s deed of lease
‘Exhibit 1’.
42. It is not in dispute
that he appeared as a court
witness at Plaintiff’s instance.
It is significant that the
result of the survey he
conducted yielded the results he
testified on at the trial. He is
a disinterested witness and on
the strength of his evidence
alone I find that Plaintiff
failed to establish a case to
enable him succeed
notwithstanding his procurement
of a Land Certificate based on
the conveyance to him by Nii
Kwashie Ahiaku V the head and
lawful representative of the
Ahiaku family of Kwashieman.
43. Having so found, it is
equally important on the
evidence to consider the
Defendant’s case on the strength
of the defence he has put up and
particularly because he has set
up a counterclaim against the
Plaintiff.
44. In doing so, I am
minded by the review decision of
the Supreme Court on 4th
April 2007 in the case of GIHOC
REFRIGERATION & HOUSEHOLD
PRODUCTS LTD. VRS. HANNAH ASSI
(unreported). Having arrived at
the conclusion that the
Plaintiff is not entitled to his
claim and following that
decision, ought the Defendant to
be entitled to a declaration of
title notwithstanding the fact
that the Defendant has not
endorsed his counterclaim with
the relief of declaration of
title?
45. The policy
consideration in the said review
decision is clear. It is
intended to avoid multiplicity
of suits whereby in a situation
such as in the instant case
where the issues raised by the
pleadings of both parties affect
their title to the subject
matter in dispute, the trial
court has the power to consider
the case of both parties and
award reliefs that naturally and
logically flow from findings
made by the court.
46. In the peculiar
circumstances of this suit
however, not only did the
evidence of the court witness
impeach the site plan
accompanying Plaintiff’s Land
Certificate Exhibit ‘B’ so did
it adversely discredit the site
plan attached to the Defendant’s
deed of lease Exhibit ‘1’
because in the unchallenged
testimony of the court witness
“there is a shift or
displacement in the relative
position of the respective site
plans for the claimants vis – a
– vis their respective claims on
the ground”.
47. Consequently, I shall
refuse to make an order of
declaration of title in favour
of the Defendant and even if the
Defendant had sought for such
relief, same would have failed.
48. I shall now deal
specifically with the
Defendant’s defence and
counterclaim. The nature of the
Defendant’s burden and duty has
been set out in two leading
cases.
49. In RE: KRAH
(Deceased) YANKYERE VRS. OSEI
TUTU (1989 – 90) 1 GLR 163
the Supreme Court said of the
position of a Defendant in a
counterclaim as follows:
“In civil trials although
the burden of proof lay on the
one who must succeed in the
action, however, the Defendants
had the particular burden of
producing evidence to
substantiate their claim”.
50.
Again in the case of IN RE:
ASHALLEY BOTWE LANDS ADJETEY
AGBOSU & ORS, VRS. KOTEY & ORS.
(2003 – 2004) SCGLR 420 at Page
425 BROBBEY JSC stated the
position of the law as follows:
“The effect of Sections 11(1)
and 14 and similar section 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 what he claims he is
entitled to from the Defendant.
At the same time, the court has
to make a determination of a
fact or of an issue and that
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 to be
made in his favour…………..”
51.
As I have earlier found in this
judgment the Defendant has
during cross – examination of
‘CW1’ elicited sufficient
evidence to prove that
Plaintiff’s site plan
accompanying his Land
Certificate No. GA 21252, Volume
7, Folio 239 does not represent
the location of Plaintiff’s
building on the land he claims
on the ground in excess of 90%.
The Defendant has alleged in
paragraph 9 of his Statement of
Defence that the said Land
Certificate was procured by
fraud and has particularized the
said allegation. I am unable to
make a finding that fraud as has
been generally alleged and
particularized was proved by the
evidence adduced in this case.
52. At common law, fraud
has to be distinctly alleged and
clearly particularized. It
cannot be inferred from facts or
generalised
from circumstances. See the case
of NTI VRS. ANIMA (1984 – 86) 2
GLR 134. However, I find that in
processing the Land Certificate
a mistake has been occasioned in
Plaintiff’s site plan
accompanying the Land
Certificate.
53. Having so found, I
will deal with what I consider
the issue most central to
Plaintiff’s claim. One of the
issues set down for
determination in this suit is
contained in paragraph (iv) of
Plaintiff’s application for
directions as follows:
“Whether or not the Plaintiff’s
title to the land is
indefeasible by virtue of Land
Title Registration Act 1986
(PNDCL 152) Section 43 (1)”
54.
On the basis of my earlier
finding the determination of
this issue can be found in the
statute itself as well as
decided authorities on the
issue. Under Sections 43(1) –
(4) and 48 of the Land Title
Registration Law 1986 (PNDCL
152) the rights of a registered
proprietor of land acquired for
valuable consideration or by an
order of a court shall be
indefeasible and shall be held
by the proprietor together with
all privileges and appurtenances
attaching thereto free from all
other interests and claims
whatsoever. An indefeasible
title meant a complete answer to
all adverse claims on mere
production of the certificate.
There are however conditions
under which a Land Certificate
will be construed as defeasible
where factors affecting
indefeasibility exist. One of
such factors is mistake whether
arising from the proprietor’s
own default or otherwise.
55. In the case of BROWN
VRS. QUARSHIGAH 2003 – 2004
SCGLR 930 PROF.
KLUDZE JSC held authoritatively
as follows:
“Under Section 122(1) of the
Land Title Registration Act 1986
(PNDCL 152) a court might in its
discretion order cancellation of
a Land Certificate issued
pursuant to the law on grounds
of fraud or mistake materially
affecting the interest of the
proprietor. However under
Section 122(2) of PNDCL 152 the
register shall not be rectified
unless such proprietor had
knowledge of the omission, fraud
or mistake in consequence of
which the rectification is
sought or had himself caused
such omission fraud or mistake
or substantially contributed to
it by his act, neglect or
default………………..”
56.
In this suit, the
proprietor of Land Certificate
No. GA 21252 Volume 07 Folio 239
is the Plaintiff. In his
attorney’s evidence he testified
that he took Surveyors to the
land to identify his boundaries
on the basis of which the site
plan attached to his land
certificate was drawn. If there
is a mistake, as this court has
found on the evidence, he
contributed to it. He has
participated fully in this trial
and is aware of the evidence of
the ‘CW1’ with respect to the
defect of the site plan
accompanying the said land
certificate and the unchallenged
evidence of the court witness to
the effect that there is an
inconsistency in excess of 90%.
Just as KLUDZE JSC held in BROWN
VRS. QUARSHIGAH (supra) in the
instant case, the element of
mistake has been established and
this court will order
rectification of the Land
Register by removing Plaintiff’s
name from it.
57. I shall now proceed to
consider issues 2 and 3
contained in the Defendant’s
additional directions in order
to determine whether or not the
Defendant has made a case in
order to succeed on his
counterclaim.
In paragraphs 7 and 8 of his
Statement of Defence the
Defendant avers as follows:
“(7). The Defendant says
that the Plaintiff without any
lawful authority destroyed
portions of his (Defendant)
building recently before
bringing the matter to court”
“(8). The Defendant says
further that the value of the
building parts destroyed valued
¢6million cedis (GH¢600.00) and
this also amounts to trespass on
the land”
58.
How did the Plaintiff react to
these allegations in his reply?
The Plaintiff in paragraph 7 of
his reply has made an
unequivocal admission of the
allegation that he destroyed a
foundation Defendant constructed
before reporting the Defendant
to the Odorkor Police. He did
not challenge the value put on
the foundation he admitted he
destroyed. For the avoidance of
doubt, I shall reproduce in
extenso Paragraph 7 of the
Plaintiff’s reply to Defendant’s
Statement of Defence.
“(7) The Plaintiff
denies paragraph 7 of
Defendant’s Statement of Defence
and says that there is
absolutely no truth in
Defendant’s assertion that
Plaintiff destroyed portions of
Defendant’s building. Indeed,
when the Defendant clandestinely
trespassed on the plot on
24/12/05 Plaintiff caused the
foundation dug by the Defendant
to be destroyed before reporting
the matter to the Odorkor
Police”.
59. The law is trite and
authorities abound on the
principle that where an
allegation of fact in a pleading
is admitted by the opposing
party, the party alleging need
not adduce evidence on the
allegation.
60. Further, whenever any
essential allegations in any
pleading is not specifically
traversed, they are deemed to
have been admitted by the
adverse party. In other words,
where as in this case the
Plaintiff has admitted the
allegation that he destroyed
part of Defendant’s property, be
it building or foundation, but
failed to controvert the quantum
of loss alleged by the
Defendant, the Plaintiff has
defaulted on his obligation to
make a specific denial of the
allegation in his reply.
Indeed during cross –
examination of ‘PW1’ by
Defendant’s Counsel the
following evidence was elicited:
“Q. You destroyed part of
Defendant’s building is that not
so?
A. My Lord, I only
destroyed a foundation being
made by the Defendant not a
building.
Q. The part of the
building you destroyed is valued
¢6,000,000.00.
A. My Lord, it wasn’t a
building it was a foundation”.
61. By the Plaintiff’s own
admission, he caused some damage
to a development commenced by
the Defendant. He only disputes
Defendant’s contention that what
was destroyed by him was a
foundation and not part of a
building. ‘DW2’ in his evidence
corroborates the evidence of
some damage to Defendant’s
foundation when he testified
that he saw broken pieces of
blocks of a development
Defendant had commenced. Whether
it is from a foundation or a
building is not of any
consequence to my finding that
Plaintiff’s attorney took the
law into his own hands and had
acted unlawfully.
62. In the case of
AGBOSU VRS. KOTEY
earlier cited in this judgment
Wood JSC (as she then was) held
as follows:
“………..Where a party’s testimony
of a material fact was not
challenged under cross –
examination, the rule of implied
admission for failure to deny by
cross – examination would be
applicable and the party need
not call further evidence on
that fact (See MARTEY V. BOTWE)
(1989 – 90) GLR 479”.
63. On the strength of the
above authority and on the basis
of Plaintiff’s own admission I
hold that the Defendant is
entitled to compensation for the
unlawful damage caused to his
property by the Plaintiff’s
lawful attorney.
64. For all the reasons I
have set out above, I find no
favour with Plaintiff’s claim in
its entirety and same is
accordingly dismissed. Judgment
is hereby entered for the
Defendant on his counterclaim.
65. Consequently, I hereby
order the cancellation of Land
Certificate No. GA 21252 in
Volume 7 Folio 239 in the name
of the Plaintiff as proprietor
thereof. The requisite
rectification shall be carried
out by the registrar of the Land
Title Registry in the register
of Lands.
66. I shall award the
Defendant the sum of GH¢600.00
as compensation for the unlawful
damage caused to his property by
the Plaintiff and costs for the
action assessed at GH¢1,000.00
in favour of the Defendant.
(SGD.)
JUSTICE I. O.
TANKO AMADU
JUSTICE OF THE HIGH COURT
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