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J U D G M E N T
OWUSU JSC.
The
plaintiff/Respondent/Appellant
herein issued a writ against the
Defendant/Appellant/Respondent
herein claiming the following
reliefs:
“ i. A declaration of title to
all that piece/parcel of land
situate lying and
being at North Taifa, Accra and
bounded on the North by proposed
road measuring 98 feet more or
less on the South by property of
the Okumo Aryikwei family
measuring 100 feet more or less
on the West by said Okumo
Aryikwei family land measuring
93 feet more or less and
containing an approximate area
of 0.20 Acre more or less
ii. Recovery of possession
iii. Damages for trespass
thereto
iv. Perpetual injunction
restraining the Defendant,
whether by himself, servants,
agents, privies whomsoever from
entering on and/or encroaching
upon the said land (or a portion
thereof) the subject matter of
this suit or interfering in any
manner with the Plaintiff’s
ownership of the said
piece/parcel of land”
The parties will hereafter be
referred to simply as Appellant
and Respondent.
The Respondent resisted the
Appellant’s claim denying in his
statement of Defence that the
land, the subject matter of
dispute was ever granted to the
Appellant by the Neefu family
through Numo Kpanie Mensah as
the Appellant claimed.
He contented that the Lease
Agreement purported to have been
executed by the said Numo Kpanie
Mensah and tendered in evidence
at the trial as Ex “A” was a
forged document. He set up a
counter-claim for the land as
follows:
“a. An order that Numo Kpani
Mensah in 1990 did not transfer
the disputed
land to plaintiff
b. Declaration of title to the
land in dispute.
c. Recovery of possession
d. Perpetual injunction
e. Damages for trespass”
THE APPELLANT’S CASE
The Appellant’s case is that by
a leasehold Agreement dated
02-05-90 and made between Numo
Kpani Mensah the accredited Head
of Okumo Aryikwei family of
Kwabenya also known as Aryikwei
Agba family and also referred to
as the Neefu family and the
Appellant (therein referred to
as the Lessee) the land the
subject matter of the dispute as
particularly described in the
endorsement on the writ was
leased to him for a valuable
consideration for a term of
ninety-nine years.
He immediately went into
possession, erected a fence wall
around it and entrusted same to
caretakers who planted
foodstuffs on part of it.
It is his contention that the
Respondent unlawfully entered
the land, pulled down part of
the fence wall and commenced
construction of a structure
thereon. This caused him to
lodge a formal complaint to the
police and subsequently issued
the writ.
THE RESPONDENT’S CASE
The Respondent in his statement
of Defence also claims title to
the land contending that by a
lease agreement dated 10th
September 2005 the Head of the
Neefu family per its accredited
Head of family at the time,
Capt. (Rtd) M. Okai granted him
a lease of 99 years of a portion
of the family land i.e. the land
in dispute. He also claims he
went into possession and started
building operations thereon when
the Appellant trespassed on the
land.
At the trial, the Appellant led
evidence in line with his
statement of claim and tendered
the lease Agreement purportedly
executed between the alleged
Numo Kpanie Mensah, the
accredited Head of the Okumo
Aryikwei alias Aryikwei Agba
family also referred to as the
Neefu family and the Appellant.
He called one witness, Joseph
Tettey Addy whose testimony was
that the Appellant bought the
disputed land from Numo Kpanie
Mensah who was his father’s
brother. That he was present
when Ex “A” was executed by the
said Numo Mensah, the lessor.
He identified the thumb-print of
the lessor and his own signature
as a witness on Ex “A”.
Under cross-examination, he
admitted Numo Kpanie Mensah died
in 1993, to be precise on
08-01-93. He however denied
that the document was executed
in 1996 as it appears on the
document and that the
thumb-print supposed to be that
of Numo Kpanie Mensah is not
that of the lessor.
He however denied that the Oath
of proof was sworn to in 1996,
contending that same was sworn
to before 1996.
The Respondent also testified,
claiming ownership of the land.
His evidence is that he acquired
the land from Capt. (Rtd) M.
Okai, acting head of the NIi
Okai family in 2001. He told the
court he conducted a search at
the Lands Commission which
revealed that the land belongs
to Nii Okai family so upon
inquiry he was directed to the
Head of family from whom he
acquired the land. He was given
a document which he registered
at the Lands commission. He
tendered the document in
evidence and same was accepted
without objection and marked Ex
“1”. He subsequently registered
same. He told the court he went
into possession and started
building on the land when he was
served with a writ of summons to
appear in court.
His evidence is that when he
visited the land he did not see
anything on it.
The Respondent also called one
witness whose evidence is not
material as to the acquisition
of the land. The witness, a
mason, was engaged by the
Respondent to construct a
building on the land and he told
the court that when he went onto
the land, there was nothing on
it.
The Respondent through his
counsel impugned the
authenticity of Ex “A” and
called upon the court to subject
same to forensic examination.
The court however rejected
counsel’s application without
assigning any reasons.
This is what the trial Judge
said:
“The submission was rejected as
to sending documents for
forensic examination”
In her judgment however, Her
Ladyship held that the
Respondent did not lead a
scintilla of evidence to prove
the alleged forgery and went on
to say that:
“In fact no attempt was even
made by Defendant to prove the
alleged forgery.”
She therefore rejected the
allegation of forgery and
accepted Ex “A” as passing good
title to the Appellant. Relying
ton the principle of nemo dat
quod non habet, she concluded
that if the same family
purported to sell the same land
to the Respondent in 2005, it
had no title in the land to have
transferred to the Defendant.
Judgment was thus entered in
favour of the Appellant for the
reliefs claimed and the
Respondent’s counter-claim
dismissed.
Dissatisfied with the Judgment,
the Respondent appealed against
same to the Court of Appeal
which by a unanimous decision
allowed the appeal, set aside
the Judgment of the trial court
and its consequential orders.
The Respondent’s counter-claim
was allowed and judgment entered
in his favour accordingly.
Dissatisfied with and aggrieved
by the Judgment of the Court of
Appeal the Appellant mounted
this appeal against same on the
following grounds:
“a. The judgment is against the
weight of evidence.”
b. the Court of Appeal erred
when it held that Appellant’s
leasehold Agreement was a
forgery.”
Having indicated that additional
grounds will be filed on receipt
of the record of proceedings in
the Notice of Appeal, the
following additional grounds
were filed:
“a. The Court of Appeal erred
when it held that Defendant had
a registered title to the land
in dispute.”
“b. The Court of Appeal erred
when it held that P. W. 1
committed perjury.”
“c. the Court of Appeal erred
when it failed to consider the
priorities of the respective
titles of the parties.”
I intend to deal with counsel’s
submissions as canvassed in his
statement of case.
Ground (b) in the Notice of
Appeal and additional ground (b)
as filed.
On these grounds, counsel
attacked the judgment of the
Court of Appeal which states
that:
“Ground (c) of the Appeal is
essentially complaining that
Exhibit A is not a genuine or
authentic document and that the
trial judge should have so
held. This, according to the
Appellant is because Exhibit “A”
is a forgery as pleaded and
testified to by the Appellant.
I Agree with and endorse the
submission of learned counsel
for the Appellant that the
learned trial Judge erred in her
finding and conclusion that the
Appellant had failed to prove
that Exhibit “A” is a forgery or
was fraudulent. That finding
and conclusion by the trial
Judge is clearly not supported
by the evidence in the record of
Appeal.
The Court of Appeal continued –
“It is obvious that on its face
and considering the evidence of
Mr. Joseph Tetteh Addy (P.W.1)
under cross-examination that
Numo Kpanie Mensah died on 8th
January, 1993 Exhibit “A” cannot
be authentic but a forgery and
or a fraudulent document. On
the first page of Exhibit “A”
(page 65 of ROA) it is there
stated that, the indenture
(Exhibit ‘A’) was executed
between Numo Kpanie Mensah, then
head of Neefu family of
Kwabenya, Accra, on the 2nd
day of May, 1990 as Lessor and
the Respondent as Lessee. But
on the last page of Exhibit “A”
where the Oath of proof is
provided, the date of the Oath
of proof is clearly stated there
as 7th August, 1996
(see page 66 of ROA).
I can appreciate an argument
that the oath of proof of an
indenture may not necessarily be
on the same day or date of the
execution of that indenture but
on whatsoever day or date the
indenture is proved under oath,
it must be so proved in the
presence of the parties to that
document, that is the parties or
executors of that document must
not only be present during the
oath of proof ceremony but that
they must also be alive on that
day or date of the proof under
oath. For the significance and
effect of PW1’s evidence on the
authenticity of Exhibit A, let
me quote in full his evidence in
chief which is in any case very
short ….”
This can be found at page 109 of
the Record of Appeal.
At pages 112 to 113 of the
Record of Appeal, their
Lordships continued thus:
“The “within named Lessor” in
Exhibit A is no other person
than Nuumo Mensah. If Nuumo
Mensah had died on 8th
January, 1993, did he resurrect
to be present to execute Exhibit
A and for Exhibit A to be read
and explained to him by PW1 on 7th
August 1996 and to be seen
physically, like Jesus Christ
was seen by the apostles after
His resurrection by PW1 – Mr.
Addy? The Respondent called no
evidence whatsoever to explain
the difference in the dates of
the execution of Exhibit A, to
wit, 2-5-93 and the date of
proof of the oath of this same
Exhibit A, to wit, 7-8-96.
P.W.1 did not also offer any
such explanation. No other
member of the Neefu family of
Kwabenya, Accra was called by
the Respondent to explain this
serious and fatal incongruity
and inconsistency in the dates
in Exhibit A. It is
sufficiently established and I
so find and hold that PW1
committed intentional and
deliberate perjury when he swore
to the oath of proof of the
execution of Exhibit A in August
1996. PW1 did not purge himself
of that obvious, intentional and
deliberate perjury in the
witness box in Court but
continued to commit that perjury
in court insisting that Exhibit
A is the deed of Nuumo Mensah
(deceased). The trial Judge
should have reverted her mind to
this continuing perjury which is
criminal of PW1 and should have
called upon him (PW1) to offer a
reasonable and acceptable
explanation to extricate himself
of that criminal conduct,
failure of which PW1 should have
been penalized by the trial
judge making a finding that PW1
was a perjured witness and
accordingly reject his evidence
in its entirety, the trial Judge
shirked her responsibility and
curiously rather made a finding
that the perjured evidence of
P.W.1 was capable of
corroborating the evidence of
the Respondent in respect of the
execution of Exhibit A.”
Counsel submitted that their
Lordships in the Court of Appeal
erred in these conclusions and
proceeded to demonstrate how
their Lordships erred.
He set out the particulars of
the fraud as pleaded in the
statement of Defence and
counter-claim as follows:
“a. The lease agreement was not
thumbprinted by the Head of
family.
b. The lease was thumbprinted by
the witness.
c. The document was not the deed
of late Numo Kpanie Mensah.”
These particulars having been
denied in the Appellant’s reply,
the Respondent was put to strict
proof of same which proof
requires proof beyond reasonable
doubt. Counsel cited the cases
of BRUTUW VRS AFERIBA [1984 -86]
1 GLR 25 and FENUKU VRS
JOHN-TEYE [2001-2002] SCGLR 985
in support.
In sum, counsel submitted that
the Respondent failed to prove
these particulars.
In support of his submission,
counsel argued that the
Respondent failed to prove that
the thumbprint purporting to be
that of Numo Kpanie Mensah was
that of P. W. 1 who claimed to
be present when Numo
thumbprinted the document. That
P. W. 1 having denied that
assertion, the Respondent should
have taken the opportunity to
apply formally for P. W. 1’s
thumbprint to be taken for same
to be sent for forensic
examination to determine whether
or not the thumbprint on Exhibit
“A” was that of P. W. 1 under
section 97 (2) of the evidence
Decree (now) Act, NRCD 323.
Rather, he contended that the
Respondent failed to take this
path but chose to fight the
issue of fraud/forgery on other
grounds with no bearing
whatsoever on the particulars of
fraud pleaded.
Counsel’s case is that the
Respondent failed to call the
Head of family, his grantor to
come and testify to the
allegation of the forgery and
that he knew the allegation was
a ‘bare allegation that could
not be proven. He submitted
that the Court of Appeal did not
hold that Exhibit “A” was a
forgery because the evidence did
not establish that, as a fact,
the thumbprint was not that of
Numo Mensah but that of P. W. 1.
Their Lordships had concluded
that Exhibit “A” was forgery
because though dated 2nd
May, 1990, the oath of proof,
was proven on 7th
August 1996.
With the greatest respect to
counsel the Court of Appeal did
not conclude that Ex “A” was a
forgery because though dated 2nd
May, 1990, the Oath of proof,
was proven on 7th
August 1996.
Indeed from the judgment,
Kanyoke J.A. did appreciate an
argument that the Oath of proof
may not necessarily be on the
same day or date of execution of
the Indenture but on whatever
day or date the indenture is
proved under oath, it must be so
proved in the presence of the
parties to that document, that
is the parties or executors of
that document must not only be
present during the oath of proof
ceremony but that they must also
be alive on that day.
He concluded that Ex “A” is a
forged document because Numu
Kpanie Mensah who had died on 18th
January 1993 could not have been
present on 7thAugust,
1996.
In this case as I have already
stated the court had declined
the Respondent’s counsel’s
application to subject Ex “A” to
forensic examination which could
have revealed whether the
thumbprint is that of P. W. 1 or
not.
Counsel did not appeal against
the ruling neither was it raised
on appeal. Why? I cannot fathom
any reason.
I do not think that counsel had
to wait until P. W. 1 was in the
witness box and had denied that
the thumbprint was not his for
him (counsel) at that stage to
have made his application under
section 97 (2) of the Evidence
Decree (ACT). The subsection
reads:
“A person does not have a
privilege under subsection (1)
where the Court thinks that it
is necessary to the
determination of an issue, to
refuse
(a)
To submit to physical
examination for the purpose of
discovering or recording the
corporal features and other
identifying characteristics, or
the physical or mental condition
of that person, or
(b)
To furnish or permit the taking
of samples of body fluids or
substances for analysis, or
(c)
To speak, write, assume a
posture, make a gesture, or do
any other act for the purpose of
identification.”
It was desirable that the
application was made timeously
as such reference to the
forensic Laboratory from
experience takes some time and
may hold up the trial
unnecessarily.
In the case of FENUKU and
Another VRS JOHN-TEYE and
Another already referred to this
court in holding 5 held that:
“The law regarding proof of
forgery or any allegation of a
criminal act in civil trial was
governed by section 13(1) of the
Evidence Decree which provided
that the burden of persuasion
required proof beyond reasonable
doubt.
If therefore, on the face of EX
“A” Numo Mensah had executed it
on 7th day of August
1996 in the presence of P. W. 1,
the thumbprint appearing as his
cannot be his as from the
evidence of P. W. 1, Numo had
died in August 1993. This did
not require any further proof as
Ex “A” speaks for itself. In the
circumstance there was no need
for the Head of family to have
come to testify on the
allegation of forgery. The
forgery allegation was proved
beyond reasonable doubt.
The Court of Appeal per Kanyoke
J. A. delivered itself thus:
“For the significance and effect
of P. W. 1’s evidence on the
authenticity of Ex “A”, let me
quote in full his evidence in
chief which is in any case very
short.
P. W. 1 in the Box. Sworn:
S.O.B in Ga
My full name is Joseph Tetteh
Addy. I know the plaintiff
herein. Yes I also know Nuumo
Kpanie Mensah. He is my father’s
brother.
Yes I know something about the
transaction between the
plaintiff and this Nuumo
Mensah. The plaintiff bought a
piece of plot from my father in
1990 so it is the old man who
gave him all the documents on
the piece of land.
Yes I was there when the old man
gave plaintiff all the
documents. I was also there when
plaintiff and Hans Mensah
executed the document. I did
something in the transaction. My
old man does not understand
English so when they say
anything in English I
translate.
I also signed the document. Yes
I signed for plaintiff.
Yes I have identified my
signature in Exhibit A. Yes
I have identified the thumbprint
of Numo Hans Mensah. I was
there when the thumbprint was
made. I maintain that the
thumbprint is that of the old
man. Nuumo Kpanie Mensah”
(my emphasis)
Under cross-examination Pw1 –
Mr. Addy admitted as follows at
pages 33-43:
“Q. You said you were present
when Nuumo Korle Mensah executed
the document.
A.
Yes
Q. You said Nuumo died.
A. Yes he died 8-1-93.
Q. You can read and write
A. Yes
Q. And there was oath of
proof evidence saying that the
said Nuumo signed the document
in the presence of the persons
who administered the oath.
A. Yes he did.”
The Court of Appeal evaluated
the evidence on record and
concluded that Ex “A” was a
forged document thus reversing
the finding of the trial Judge
who had held the contrary.
An appellate court would
normally not interfere with
findings of facts made by a
trial Judge on the facts unless
it was established with absolute
clearness that some blunder or
error resulting in a miscarriage
of justice, was apparent in the
way in which the lower tribunals
had dealt with the facts.
It must be established, e.g.
that the lower courts had
clearly erred in the face of a
crucial documentary evidence, or
that principle of evidence had
not been properly applied or;
See the case of ACHORO and
Another VRS AKANFELA and Another
[1996-97] SCGLR 209.
Achoro’s case is an appeal to a
second Appellate court where the
lower appellate court had
concurred in the findings of the
trial. However the same
principle holds good where the
lower appellate court had
interfered with findings of the
trial court for same reasons.
In the case of TUAKWA VRS BOSOM
[2001 – 2002] 61 this court in
unanimously dismissing the
appeal held that “an appeal is
by way of re-hearing,
particularly where the appellant
alleges in his notice of appeal
that the decision of the trial
court is against the weight of
evidence. In such a case
although it is not the function
of the appellate court to
evaluate the veracity or
otherwise of any witness, it is
incumbent upon an appellate
court, in a civil case, to
analyse the entire record of
appeal, take into account the
testimonies and all documentary
evidence adduced at the trial
before arriving at its decision,
so as to satisfy itself that, on
a preponderance of the
probabilities, the conclusions
of the trial judge are
reasonably or amply supported by
the evidence. In the instant
case, the Court of Appeal failed
to do this. After reviewing the
record, the court would conclude
that, on the preponderance of
the probabilities, the judgment
of the trial judge in favour of
the defendant, i.e. the
respondent, was not supported by
the totality of the evidence;
and the Court of Appeal
therefore erred in confirming
the same without any scrutiny of
the record.”
In the instant case, the
Respondent’s first ground of
appeal to the Court of Appeal is
that:
“a. The whole judgment is
against the weight of evidence.”
The court of Appeal therefore
mindful of its duty, examined
and scrutinized the totality of
the evidence contained in the
record of appeal and concluded
that Ex “A” is a forged
document.
The court per Kanyoke J. A.
delivered itself thus:
“As an appeal is by way of a
rehearing I am entitled to
examine and scrutinize the
totality of the evidence before
me as contained in the record of
Appeal and come to my own
decision on the admitted and
undisputed facts in this case.”
See AKUFFO-ADDO VRS CATHELINE
[1992] 1 GLR 377.
I have carefully perused,
examined and scrutinized the
totality of the evidence in the
record of appeal and I have no
doubt in my mind that Exhibit
“A” is a forged and fraudulent
document. This finding is amply
supported on the face of Exhibit
A and the court fell into no
error by so holding.
Admittedly, the Respondent
failed to prove any of the
particulars of the forgery/fraud
as pleaded but if after
evaluating and scrutinising the
whole of the evidence including
documents exhibited, there was
evidence of fraud, the appellate
court which could draw its own
inference from the evidence and
was in that regard in the same
position as the trial court,
rightly found that Ex “A” was
fraudulent.
The appeal fails on this
ground.
On additional ground (b) counsel
argued that p. w. 1, never
signed the Oath of proof and
therefore committed no perjury
as found by the Court of Appeal.
Perjury is defined under section
211 of the criminal offences
Act, 1960 as follows:
“A person commits perjury, if in
a written or verbal statement
made or verified by that person
on oath before a court or a
public officer, or before the
president or states anything
knowing that the statement is
false in a material particular,
or which that person does not
have a reason to believe is
true.”
On the face of Ex “A”, p. w. 1
never signed nor thumbprinted
the Oath of proof as a Deponent
even though the Chief Registrar
has signed as the Oath having
been sworn before him.
The finding of the Court of
Appeal that P. W. 1 perjured
himself is not supportable and
therefore the Court of Appeal
erred when it so held. This
ground of Appeal thus succeeds.
ADDITIONAL GROUNDS (a) and (c)
These two grounds touch on the
question of the registration of
the respective titles of the
parties. Counsel submitted that
having declared Exhibit “A” a
forgery, same was buried and
nothing, not even the Holy
Spirit, could resurrect same.
Therefore their Lordships did
not see the need to carefully
evaluate the submissions and
authorities cited by Appellant.
This statement of counsel is
unfortunate as the passage of
the Judgment quoted by him
disproves his assertion. The
passage reads as follows:
“Let me deal firstly with the
issue of the registration or
non-registration of the
Respondent’s Leasehold Agreement
– Exhibit A. In his written
submission filed on the 10th
day of August 2009, learned
Counsel for the Respondent
gracefully conceded that Exhibit
A on its face does not show that
it has been registered in
accordance with Section 42(1) of
the Land Title Registry Act,
1962 (Act 122). Having conceded
this point, I thought learned
Counsel for the Appellant would
have been more graceful enough
and in accordance with the best
practice of the legal profession
to further concede that the
point raised by learned Counsel
for the Appellant that Exhibit
“A” was invalid and could not
and should not have been relied
upon by the trial Judge in her
Judgment and therefore that the
trial Judge had erred in law by
relying on Exhibit A as one of
the reasons for entering
Judgment in favour of the
Respondent. Instead, in a
desperate and valiant attempt to
persuade this court to uphold
the decision of the trial Judge
learned Counsel for the
Respondent sought to circumvent
the consequential legal effect
of the non-registration of
Exhibit “A” by circuitously
making submissions on the issues
of priority of registered
instruments or documents
affecting land or transactions
affecting land and whether or
not the mere guarantee to title
to that land. Learned Counsel
for the respondent then cited
and referred to a host or a
chain of judicial decisions on
these issues, such as LAMPTEY V
HAMMOND (1987-88) 1 GLR 286,
BOTWAY v OKINE (1987-88) 2 GLR,
ARKOFUL v SEY (1980) GLR 752,
BROWN v QUARSHIGAH (2003-2004)
SCGLR 930 etc. In my view, in
the circumstances and facts of
the instant case issues of
priority of registered documents
or instruments affecting land
and whether or not registration
of such an instrument or
document is a guarantee to the
title of the holder of such a
document as well as those
judicial authorities cited by
learned Counsel for the
Respondent are irrelevant for a
consideration of the legal
effect of Exhibit A.”
Counsel for the Appellant
followed up with an attack on
the Respondent’s leasehold
document submitting that mere
registration of that document
will not confer title on the
Respondent. If therefore the
title is proved to be defective,
mere registration cannot cure
the defect. He referred to the
cases of LAMPTEY VRS HAMMOND.
BOTCHWAY VRS OKINE and ARKOFUL
VRS SEY already referred to.
Consequently, the Respondent’s
grantor had no title to convey
to the Respondent after the same
family had made a prior grant to
the Appellant, relying on the
maxim Nemo Dat Quod Non Habet.
With the greatest respect to
counsel, his submission on prior
grant not affected by subsequent
registered grant would be
tenable if the Appellant has a
valid grant known or which ought
to have been known by the holder
of the subsequent grant.
Ex “A” apart from being a forged
document as the Court of Appeal
held, was not registered.
The Appellant’s purported grant
was not a customary one as in
the case of BROWN VRS QUARSHIGAH
[2003-2005] SCGLR 930 relied
upon by counsel. Neither was
there evidence on record to
establish that the Respondent
fraudulently obtained his
subsequent grant with notice of
the earlier unregistered
instrument even if that
instrument had been a valid one.
The evidence of the Respondent
is that when he entered the land
he did not see any sign of human
activity. This piece of
evidence was corroborated by his
witness p. w. 1 when he
testified.
The Appellant failed to lead any
evidence in support of his claim
that he had gone into
possession. Indeed the search
the Respondent conducted, the
certificate of which he tendered
as Exhibit 2 did not reveal any
transaction between the Neefu
family and the Appellant as
evidenced in Ex “A”.
I would touch on Ex “2” again
when I come to deal with the
Respondent’s counter-claim.
REGISTRATION OF INSTRUMENTS:
Under section 24(1) of the Land
Registry Act, 1962 (Act 122) “subject
to subsection (2) of this
section, an instrument other
than (a) a WILL or (b) a judge’s
certificate, first executed
after the commencement of this
Act shall be of no effect until
it is registered.”
It was evident from the face of
Ex “A” that it was not
registered. P. W. 1 admitted
this and counsel also conceded
that Exhibit “A” was not
registered. For that reason,
ipso facto, same was ineffective
to create legal rights or
liabilities or to have any legal
validity or so ever.
See the cases of ASARE VRS
BROBBEY [1971]2GLR, LAMPTEY VRS
HAMMOND already referred to.
In the case of ASARE VRS
BROBBEY, a mortgagee, who had
not registered the mortgage
instrument exercised the power
of sale in the mortgage
instrument.
The trial court held that the
sale was in order, but on
appeal, Archer J.A. (as he then
was) delivering the Judgment of
the Court of Appeal, said:
“The Court below delivered a
judgment contrary to the express
provision of section 24(1) of
the Land Registry Act, 1962 by
conferring rights when the
statute provides that no legal
rights can arise from an
unregistered document affecting
Land. The sale ------- was
therefore a nullity and the
appeal should be allowed as the
appellant is entitled to all the
reliefs he seeks”
Since Ex “A” is not a registered
Instrument there is therefore no
issue of priorities of the
respective titles of the parties
which the Court of Appeal failed
to consider. Additional ground
(c) therefore fails.
I will deal with additional
ground (a) when I come to
consider the Respondent’s
counter-claim.
Counsel did not argue ground (a)
in the Notice of Appeal i.e.
Judgment is against the weight
of evidence and I take it that
he has abandoned same.
THE RESPONDENT’S COUNTER-CLAIM
A counter-claim is a different
action in which the Defendant
counter/claimant is the
plaintiff and the plaintiff in
the action becomes a defendant.
In a case where the parties are
seeking declaration of titles,
recovery of possession and
perpetual injunction in respect
of a piece of land, each of them
bore the burden of proof and
persuasion to prove
conclusively, on a balance of
probabilities that he was
entitled to the reliefs claimed.
Section 11(1) of the evidence
Decree enjoins the Respondent as
a plaintiff in the counter-claim
to introduce sufficient evidence
to avoid a ruling on the issue
against him.
Section 12(1) of the Act reads
as follows:
“Except as otherwise provided by
law, the burden of persuasion
requires proof by a
preponderance of the
probabilities.”
(2) “Preponderance of the
probabilities” means 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.
What evidence did the Respondent
herein lead in proof of his
counter-claim?
He denied all the averments
contained in the
plaintiff/Appellant’s statement
of claim except that he admitted
he had entered the land granted
him by the Neefu family and had
started building operations
therefore.
He therefore pleaded the lease
agreement he entered into with
the Head of Neefu family in
2005. This Agreement he
tendered as Ex “1” and with this
he sought a declaration of title
and its consequential reliefs.
The Respondent did no more than
mounting the witness box and
reiterating what he had stated
in his statement of Defence and
counter claim.
The Appellant having denied that
the Neefu family granted the
Respondent any land argued that
even if any such land was
granted him, the family had no
interest in the land which they
could pass on to the Respondent,
having diverted itself of any
interest in the land previously
to the plaintiff.
With this challenge, the
Respondent did not join his
grantor to the suit nor call him
as a witness. Failure to bring
in the grantor under the
circumstances is fatal.
The only witness he called, D.
W. 1 the mason, did not testify
to acquisition of the land.
In the case of OSAE & ORS VRS.
ADJEIFIO & OTHERS [2008]4 G.M.L.
149 the Supreme Court per
Brobbey J.S.C. stated that –
“The burden of proof and
persuasion remained on the
appellants (plaintiffs) to prove
conclusively on a balance of
probabilities, the land to which
they claimed a declaration of
title and perpetual injunction.
This burden hardly shifts.
Unless and until the plaintiffs
who are the appellants are able
to produce evidence of relevant
facts and circumstances from
which it can be said that they
had established a prima facie,
the burden remains on them.”
In the case of MAJOLAGBE VRS
LARBI & OTHER OLLENU J. (as he
then was) repeating his words
from the case of KHOURY AND
ANOTHER VRS RICHTER on the
question of proof said –
“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 that 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”
In proof of his title, the
Respondent had tendered Ex “1”,
the lease Agreement.
The Court of Appeal concluded
however that the Respondent
succeeded in establishing a
superior title to the disputed
land. The court arrived at this
conclusion because Kanyoke J. A.
was of the view that Ex “1” had
been registered. This is what
he said –
“It is clear on the
face of Exhibit 1 that his
indenture had been registered.”
With due deference to Kanyoke J.
A., Ex “1” on its face does not
indicate that same is a
registered Instrument. The
instrument is rather stamped in
accordance with section 12 of
the stamp Act of 1965.
If the Instrument is not
registered, then it is of no
legal effect under section 24
(1). It cannot raise any
presumption in favour of the
Respondent for the burden of
proof to shift to the Appellant
as the Court of Appeal held.
In His Lordship’s own words, “an
unregistered Instrument or
document affecting land has
always been held to be invalid
and cannot therefore form the
basis of a judicial decision in
a court of law. His Lordship
referred to cases like THOMPSON
VRS MENSAH [1957] 3 W. A. R. 240
ASARE VRS BROBBEY [1971] and
HAMMOND VRS ODOI [1982-83] 2 GLR
1215.
Even if Ex “1” was registered,
mere registration would not
confer title on the Respondent.
Coming back to Ex “2” the search
certificate, His Lordship found
that the disputed land is the
subject of a “lease dated
10/9/2005 from Ex-captain Felix
Nii Okai to Akwasi Sintim
(appellant herein)
What His Lordship overlooked is
that this report is dated 11th
February 2008, some six (6) days
after the Respondent had
testified in court.
Even though his evidence is that
he conducted a search at the
Lands commission to find out the
rightful owners, under
cross-examination when asked
about copy of the search his
answer was that he did not have
it in court. He obtained it
after he had testified in court.
At the conclusion of the trial
and on the totality of the
evidence, the Respondent failed
to lead sufficient evidence in
proof of his title to warrant
entry of Judgment in his favour
on the balance of probabilities
on his counter-claim. He failed
to discharge the burden of proof
and persuasion.
The Court of Appeal should have
dismissed his counter-claim as
the trial court did.
Accordingly, the counterclaim is
dismissed.
The Respondent sought in his
counter-claim a relief for
recovery of possession even
though his evidence is that he
has gone into possession. His
evidence to that effect was not
challenged. He is therefore
entitled to his possessory
rights. Since he is already in
possession, his claim for
recovery of possession is
superfluous.
In the end, the Appellant’s
appeal succeeds partly on the
issue of perjury and the court
of Appeal’s finding that Ex “1”
is a registered Instrument. It
fails on the other grounds and
on those grounds same is
dismissed.
It must be stated that we have
come to this conclusion with
some amount of difficulty
because the case was poorly
fought on both sides.
Counsel had fought the case
without any regard for the
standard of proof required of a
party who claims a declaration
of title to land. The cases
abound on this principle. How
does a party who seeks a
declaration of title to land
fail to join his grantor as a
party to the action or call him
as a witness when his title is
hotly contested. His action is
bound to fail
[SGD]:
R. C.
OWUSU(MS.)
JUSTICE OF THE SUPREME COURT
[SGD]:
W.
A. ATUGUBA
JUSTICE
OF THE SUPREME COURT
[SGD]:
DR. S. K. DATE
BAH
JUSTICE OF THE SUPREME COURT
[SGD]:
J. ANSAH
JUSTICE OF THE SUPREME COURT
[SGD]:
P. BAFFOE BONNIE
JUSTICE OF THE SUPREME COURT
COUNSEL
BRIGHT OKYERE-AGYEKUM (WITH
RUFINA ACQUAH AND FRANK
ADJEPONG) FOR THE PLAINTIFF/
APPELLANT.
NANA TABIA AMOAKOHENE FOR THE
DEFENDANT/ RESPONDENT.
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