|
JUDGMENT
J. B. AKMBA, J.A
This is an appeal
against the decision of Mrs. Vida Akoto Bamfo. J.A,
sitting as an additional High Court Judge in the High
Court Accra dated 22nd March 2002 in which she dismissed
the claim of the plaintiff/appellant (hereinafter
referred to as plaintiff). She then entered judgment in
favour of the defendants/respondents (hereinafter
referred to simply as defendants) and granted the entire
reliefs claimed in their counterclaim.
The plaintiff’s claim
against the defendants jointly and severally were for:
(i) "Declaration of
title to all that parcel of land situate at North
Odorkor bounded on the North East by Asere Stool land
measuring 140 feet more or less on the south East by
Asere stool land measuring 100 feet more or less and on
the South-West by a proposed road measuring 140 feet
more or less and covering in area approximately 0.32
Acre.
(ii) Recovery of
possession.
(iii) Damages for
trespass.
(iv) An order of
perpetual injunction restraining the defendants/agents
and privies whatsoever from entering the land in
dispute, remaining thereon, carrying on any work
whatsoever thereon or in any manner interfering with the
plaintiff’s ownership and or possession of the said land
pending the final determination of this suit.
(v) Any other relief
found due"
In their counterclaim,
the defendants’ also sought the following against the
plaintiff:
(a) "Recovery of
possession of the land comprised in the said conveyance
dated 6th September 1996.
(b) Damages for
trespass thereto, and
(c) A perpetual
injunction restraining the plaintiff, his servants,
agents, privies whomsoever or otherwise howsoever from
interfering in any manner whatsoever with the defendants
possession or control of their said brother’s land
comprised in the said conveyance dated 6 September
1996."
The plaintiff who is
dissatisfied with the decision of the High Court has
appealed to this court on the following grounds:—
(i) The judgment is
against the weight of evidence
(ii) The learned trial
Judge failed to give adequate consideration to the case
of the plaintiff in the judgment
(iii) Further grounds
will be filed on receipt of the record of proceedings.
Four additional grounds
have since been filed for determination namely:
(a) The learned trial
judge erred in failing to make any finding or
determination on the copious evidence of plaintiff’s
continuous possession and repeated exercise of right of
ownership of the land in dispute since 1947 and its
effect on the parties right to the land.
(b) The learned trial
judge erred in giving judgment in favour of the
defendants on their counterclaim as if it was a judgment
in default of defence.
(c) The learned trial
judge erred in failing to apply the principle in Conca
Engineering Ltd v. Moses 1984-86 GLRD III @ page 260
that the defendants having counterclaimed for
declaration of title to land and recovery of possession
were duty bound to lead positive evidence in proof of
their title to the land in order to succeed on their
counterclaim.
(d) The learned trial
judge failed to consider the discrepancies and
fundamental flaws and or defects in the defendants’ root
of title and thereby wrongly declared them to be owner
of the land.
The gist of the facts,
which prompted the present litigation from the
plaintiff's point of view, are that in or about 1947
plaintiff bought a plot of land from the Asere stool for
a consideration of £15 and was placed in immediate
possession by his grantors. Although a receipt was
issued no document of title was executed. After the
death of the then Asere Manche, plaintiff approached the
successor Nii Akrama II who after inspecting the receipt
agreed to grant him an indenture. The indenture was
signed on 16th August 1961 by the said Nii Akrama II
with the consent and concurrence of the principal
councillors thereby formally conveying the legal title
to him for a further consideration of £85, The indenture
was duly registered Plaintiff fenced the land with
concrete blocks and has remained in possession per his
agent one Alhaji Lamptey to whom he granted permission
to put up a temporary shed for a fitting work-shop on a
portion of the land to keep the area clean mid ward off
encroachers. In 1996 plaintiff's attention was drawn to
a trespass on his land and that preparations were being
made for a building project. Following persistent
resistance from plaintiff and his agent, the defendants
came forward but defiantly refused to keep off the land
despite the plaintiff's warnings. In the end the
plaintiff was compelled to seek redress in the courts.
For the defendants,
they trace their root of title to a deed of conveyance
dated 6th September 1996 wherein one Quintin Kwartei
Quartey (hereinafter simply referred to as DW1) sold the
land in dispute to their (defendants') brother, Ayitey
Kwaku Dovi who is now resident in Germany (see exhibit
1). DW1's title is rooted in a deed of gift dated 31st
May 1954 made between Thomas R Quartey (for the Asere
Stool) as donor Susuana A. Quartey, the mother of the
said DW1 as donee, This deed of gift is Exhibit G.
Susuana A. Quansah per another deed of gift (exhibit H),
dated) 27th January 1964 transferred the land to her son
DW1. On 5th March 1990 DW1 purported to vary his deed of
gift exhibit H. He then after registered it with the
Land's Registry on 11th February 1994. Eventually DW1
sold the land the subject of the present dispute to the
defendants' brother. The defendants contend that their
land is separate and distinct from the plaintiff’s land.
In resolving this
appeal, I propose to tackle the grounds of appeal
together under the rubric of the omnibus ground, to wit,
the judgment is against the weight of evidence. I will
also follow the same sequence adopted by the plaintiff
beginning with the ground which states that the judgment
is against the weight of evidence in so far as the
learned trial judge failed to give adequate
consideration to the case of the plaintiff especially in
the light of the copious evidence of the plaintiff's
continuous possession of the land in dispute since 1947
and its effect oil the parties rights to the land.
This appeal brings to
light some of the stark misfortunes that await many an
unwitting purchaser of land who does not go the full
length to ascertain that there is actual correlation
between what is being purchased on the ground and what
is actually plotted on the site plan/map. It is equally
a sad commentary on the quality of surveyors and
cartographers who between themselves must ensure that
the end product is what is actually intended to be
passed. One cannot fail to admit the presence of many
charlatans in a fluid land market passing as surveyors
and cartographers, which calls for utmost care and
vigilance on the part of the public in land transactions
and matters.
The duty of this court,
in the present appeal has been very well captured in the
words of Azu Crabbe, JSC, in Nyame vs. Tarzan Transport
& Anor, (1973) 1 GLR 8, holding 1 & 3 wherein he said:
“(1) An appellate court is loath to disturb a finding of
fact by a trial judge who has had the advantage of
observing the demeanour of witnesses, their candour or
their partisanship and all the incidental elements which
make up the atmosphere of an actual trial. But it is far
more ready to reverse his decision in a case, which
depends on inferences from admitted or undisputed facts.
(3) There is a
distinction between pure conjecture and reasonable
inference. A conjecture may be plausible but it is of no
legal value, for its essence is that it is a mere guess.
An inference in the legal sense on the other hand, is a
deduction from the evidence and if it is a reasonable
deduction it may have the validity of legal proof."
{Emphasis underlined.}
In its judgment, the
trial court placed heavy premium on ‘exhibit A’ calling
it the foundation of the plaintiff’s case and was not
prepared to consider the oral evidence led on the
matter. This is how the trial judge put it:
"The issue is whether
the plaintiff could disregard the existence of exhibit
A, the foundation of his case and rely on oral evidence
on the grant as urged by learned counsel for the
plaintiff. I think not; for firstly, the plaintiff is
bound by his pleadings in paragraphs 4.5 and 6 of the
statement of claim the thrust of the plaintiff’s case
was that land he purchased from the Asere stool in 1947
was that that which was reduced into writing in 1961 and
that there was an indication on the site plan that it
was the land he purchased which was more particularly
delineated on the plan hereto attached and thereon edged
pink".
It is unfortunate that
the trail court saw exhibit A as solely pivotal to the
case of the plaintiff without which the rest of the
evidence led by the plaintiff is nothing but
insignificant. This being a land case and a civil one as
such, the plaintiff is required to produce sufficient
evidence on “a preponderance of probabilities” to make
out his claim. Section 12(2) of the Evidence Decree,
NRCD 323, defines a preponderance of probabilities as
“that degree of certainty of belief in the mind of the
tribunal of fact or the court by which it is convinced
that the existence of a fact is more probable than its
non existence”. My understanding of the present state of
the law is that in assessing the balance of
probabilities, all the evidence, be it that of the
plaintiff and the defendant must be considered and the
party in whose favour the balance titles is the person
whose case is more probable and he wins. My view is
buttressed by the explanations given in the Commentary
to the Evidence Decree in respect to the burden of
producing evidence in s. 11 (4). It explains thus: “A
party with the burden of producing evidence is entitled
to rely on all the evidence in the case and need not
rest entirely on evidence introduced by him. The party
with the burden of producing evidence on the issue may
point to evidence introduced by another party which
meets or helps meet the test of sufficiency. It is for
this reason that the phrase on all the evidence’ is
included in each of the tests of sufficiency.”
The trial court
therefore had the duty to evaluate the case of the
plaintiff as a whole and not to break it into what it
called a foundation or any other stage. I must observe
that breaking the evidence into stages could cause grave
injustice to the party adversely affected. I have no
doubt what the authorities say, and one of the reliefs
sought in this suit is damage for trespass. A party
cannot succeed in an action for trespass without
identification of the land alleged to have been
trespassed upon. This is a true statement of the law,
but as Ollenu J, (as he then was) stated in Ngmati vs
Adetsia and Ors 1959 GLR 323 @ 327, which I endorse, “a
plan of the land alleged to have been trespassed upon is
not indispensable, it is most desirable, but it is not a
sine qua non. A plaintiff claiming in trespass is
entitled to succeed even without a plan, if the oral
evidence tendered by him leaves a clear picture of
identity of the land which is in dispute between him and
the defendant.” {Underlined for emphasis}
In this appeal, the
unchallenged evidence on record is that when the
plaintiff bought the land in 1947 from the Asere Stool
he was put in possession thereof. It was later in 1961
that he obtained an indenture, which purported to cover
the transaction. This is how the plaintiff captured it
in court: “I bought it around 1947. No document was
executed. I was given a receipt. The then Asere Manche
died and I approached the successor Nii Akrama II. I
showed him the receipt and he agreed to give me an
indenture. This was in 1961. The indenture was duly
given. I registered it, obtained a concurrence on it
(witness show (sic) a document). I have the documents. I
wish to tender it in evidence. No objection by counsel
for the defendants. Accepted and marked Exhibit A
(photocopy accepted). When I paid the money he delegated
2 people to go and show me the site, they were
physically to show me. The land was overgrown and in
those days, one would need courage to go there. I took
possession of the land. I got document in 1961.”
As to further acts of
possession the plaintiff testified that: “ I applied and
got a permit to fence the land. Witness shown a
document. They are permits. I wish to tender them in
evidence. No objection. Accepted and marked Exhibit B
(photocopy tendered). I fence the land. I fenced entire
land. I used sandcrete blocks. In 1989, one Nii Welbeck
he came and asked me permission to allow the wife to
sell wakye and the erected a shed and sold the wakye.
When the women left, he brought in a fitter one Alhaji
Lamptey who also asked permission to erect a fitting
shop on the land ….” [Emphasis underlined].
The defendants did not
cross-examine the plaintiff on the crucial testimony
that he fenced the entire land sold to him and was in
possession. When the 2nd defendant took his turn in the
witness box lie in his evidence in chief admitted seeing
a structure belonging to a fitter on the land. The
fitter had told him the plaintiff put him on the land.
2nd defendant denied seeing all the four corners of the
land walled when he first saw the land. Under
cross-examination however, he admitted seeing the front
and backsides of the land walled as well as the
structure of the fitter. It is quite evident from the
record that the plaintiff had been exercising rights of
possession ever since he purchased the land in 1947 and
these being acts of physical possession may be
preferable to abstract rights of ownership. Against this
is the position of the defendants that the land sold to
the plaintiff laid elsewhere than that sold to their
(defendant's) brother Ayitey Kwaku Dovie which is part
of the land comprised in the 1954 deed.
The composite plan,
exhibit HCI was prepared on the orders of the court. It
is a practical automation of the varying claims. Put
bluntly, the composite plan embodies, in practical
terms, what either party thought lie had in his site
plan. No doubt exhibit HC1 is pivotal to the resolution
of the rival claims of the plaintiff and defendant. It
(exhibit HC1) shows clearly that the parcel of land
being claimed by the parties on the ground is not the
same as the land actually conveyed to the plaintiff in
his site plan or defendants' original titleholders. For
instance the land shown on the plaintiff's site plan
lies north-north-west of the disputed land whilst the
plan of Susuana Ama Quansah per deed registered No.
916/54 lies a short distance north-north-west of the
disputed land. Equally noteworthy is that the plan
attached to DW1's registered deed No 755/6-4 translates
the land to a position south-south-east of the disputed
land. These may appear as a comedy of errors but in real
terms neither the plaintiff nor Madam Susuana A.
Quansah, the defendants’ original title holder, ever had
the legal ownership of the disputed land conveyed to
them in their respective tile documents. Clearly
therefore DW1’s land which was gifted to him dated
27/1/64 and registered at the Deeds Registry as No.
755/64 (supra) did not fall on the disputed land. It did
not also agree with the position of the mother’s land in
her own title document. In the light of this apparent
mix up, DW1’s testimony and activities call for close
scrutiny especially the circumstance warranting the deed
of variation he made and the subsequent sale of the land
to the defendants. DW1 in his testimony in the court
below stated that in 1990 he did a variation of the 1964
grant that the mother (Susuana A Quansah) made to him,
at which time the mother was no longer alive, having
died in 1972.
Thomas Richard Quartey
the original grantor to Susuana Ama Quansah was also not
a alive by that time. As to why it became necessary to
prepare a deed of variation to vary the description of
the land gifted to DW1, there is no explanation
whatsoever except that DW1 admitted under
cross-examination that he signed the deed of variation
together with an aunt who signed for and on behalf of
the late mother, but the capacity was not disclosed. The
said aunt was also not the late mother’s successor. This
witness (DW1) also disclosed that the mother left a will
with him as the sole executor and that the person who
executed the deed of variation did not own the piece of
land. It is obvious from the admissions by the DW1
himself (supra) that the deed of variation submitted for
approval and action at the Lands Registry under those
circumstances, was not only questionable, if was
fraudulent and rendered the outcome incompetent and void
for fraud. Throughout the testimony of the DW1, his
subtle hands are active concerning his intentions. He
knew that the plaintiff was in possession of the land
not least when he visited there and saw the fitter’s
shop and was told that the plaintiff had put him
(fitter) on the land. Any action founded on the forged
deed of variation cannot stand. This accords with the
general view of our courts that no one should be
permitted to take advantage of his own fraud. There is a
plethora of authority that fraudulent conduct cannot be
the basis for a valid title. In the case of Okofoh
Estate Ltd vrs Modern Sign Ltd (1996-97) SCGKR 224 @
253, Edward Wiredu, JSC, succinctly stated the position
thus: “An allegation of fraud goes to the root of every
transaction. A judgment obtained by fraud passes no
right under it and so does a gorged document or a
document obtained by fraud pass no right.” Our courts
frown upon fraud disdain for fraud, the Supreme Court in
its decision in Amuzu vs Oklikah, 1998-99 SCGLR, 141 @
183, as per Atuguba, JSC, is not prepared to be
disenabled from acting upon a clear issue of fraud by
the rule of pleading.
The honorable judge
said: “In this case, fraud has not distinctly been
pleaded as the practice requires. But in view,
especially of the provisions of section 5, 6 and 11 of
the Evidence Decree, 1975 (NRCD 323), regarding the
reception of evidence not objected to, it can be said
that where there is clear but unpleaded evidence of
fraud, like any other evidence not objected to the court
cannot ignore the same, the myth surrounding the
pleading fraud notwithstanding. . . In compelling
circumstances, the courts have not allowed the rules of
pleading to stand in the way of justice.”
Even though the DW1
denied that the variation was done purposely to coin
with the land occupied by the plaintiff, this denial is
only self-serving. The fact as borne out by exhibit HC1,
is that the site plan attached to exhibit 3, the Land
Certificate, coincides with the disputed land. This
cannot be a mere coincidence. The DW1 found it necessary
to obtain the signature of an aunt who had neither
authority nor capacity and under dubious circumstances
to effect the deed of variation some eighteen years
after the death of his mother grantor, for no other
reason than to ensure that the resultant site plan
coincided with the disputed land. The actions of DW1 are
anything but fraudulent and cannot stand. Indeed, a
court of conscience such as this, should not allow the
Dw1 to profit by his own fraud. In the result I hereby
order the cancellation of the Land Certificate exhibit 3
since the same is founded upon a fraudulent transaction.
It is equally pertinent
to refer to DW1’s admission in cross-examination that he
found one Alhaji, a fitter, who had a workshop present
on the disputed land when he took Dovie to the land. The
fitter had said the plaintiff as far back as 1961 put
him there. The DW1 also admitted “the plaintiff’s claim
of possession. DW1 was therefore put on notice that the
land had since 1961 been encumbered. Dw1 also tendered
in evidence exhibit 4 the results of a search made on
30/1296. Exhibit 4 lists the plaintiff as one of four
persons who had a conveyance that affected the land
under investigation. The plaintiff’s conveyance was
dated 16/8/61 from Nii Akramah II. The defendants
tendered another search result in the nature of exhibit
2 obtained on 20th September 1996 which was three months
prior in time than exhibit 4. Strangely enough exhibit 2
does not list the plaintiff as one whose conveyance
affected the land, but rather included the purported
variation dated 5/3/90 from Susuana A Quansah to DW1,
whereas the said Susuana A Quansah died in 1972.
Obviously exhibit 2 is not a reliable document.
The trial judge’s
conclusion was that the surveyor left the court in no
doubt that he plaintiff’s land on the ground was totally
different from what his own site plan in his title deed
of 1961 conveyed and this therefore destroyed the
plaintiff’s case and vindicated the defendant’s case.
Therein lies the pitfall into which the trial judge
fell, for that is the nature and object of fraud. I
cannot agree that the evidence relied upon by the trial
judge was conclusive without the evidence being
considered as a whole. Had the judge given due
consideration to the matter as a whole she would have
been led to the conclusion that judgment should have
been given against the defendant whose title is rooted
in fraud, which cannot dislodge the evidence of the
plaintiff’s continuous possession of the disputed land
since 1947 and who is entitled to the protection of the
law against all who cannot affirmatively prove a better
title. Proof of a better title does not include
fraudulent variations or manipulations made ostensible
to alter the nature of the original transaction or gift
to suit and coincide with the disputed land as
perpetrated by DW1, the defendants’ vendor. The
plaintiff, having shown that he had claim to the land
than DW1 and through him the defendants. The plaintiff
being the first grantee of the land holds priority in
equity. This therefore is an appropriate case to in
invoke in favour of the plaintiff the maxim: melior est
conditio possidetis ubi neuter jus habet. Greater or
better is the condition of the possessor where neither
of the two has the right or title. In conclusion
therefore we allow the appeal and set aside the judgment
of the court below of 22nd March 2002.
The plaintiff claimed
damages for trespass as one of his reliefs. He will
succeed only if he is able to prove that he is an owner
in possession of the land in dispute and that his said
possession has been disturbed. The plaintiff has clearly
proved that he has been in possession of the land he
purchased from the Asere Stool since 1947 not only by
walling the land but also by putting his agents on the
land notable the ‘wakye’ seller and later Alhaji
possession by bringing stones and other materials ready
to start a building of their own. The plaintiff has
certainly made a case for the award of damages however
nominally. In the premises I enter judgment for the
plaintiff on all his reliefs.
Consequently, the
defendants, their agents, privies and assigns are hereby
perpetually restrained from entering the disputed land.
I also accordingly dismiss the counterclaim.
We enter damages of ten
(10) million cedis for the plaintiff. We also allow
costs of five (5) million cedis for the plaintiff.
J.K. AKAMBA.
OMARI-SASU, J.A.
I agree
OMARI-SASU
Justice of Appeal
TWENEBOA-KODUA, J.A.
I also agree.
TWENEBOA-KODUA
Justice of Appeal.
COUNSEL
Dick K. Anyadi—for
Plaintiff/Appellant.
W.A.N. Adumuah Bossman
—for Defendants/Respondents. |
