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J U D G M E N T
WOOD (MRS), C.J:
On the 4th of
November 2009, by a majority
decision of three to two,
Georgina Wood CJ, Ansah
and Dotse JSC, dismissed the
appeal against the judgment of
the Court of Appeal, and
reserved our reasons. We now
assign our reasons for our
decision to affirm the judgment
of the court below.
This appeal from the judgment of
the Court of Appeal dated 15th
April 2005, relates to a parcel
of land on Guggisberg Road Adum,
Kumasi, more particularly
described as Plot No. 10, Block
V111. On the 23rd of
August 1999, the
Plaintiff-Appellant-Respondent
(Respondent), in his capacity as
a principal member and elder of
the Nana Ama Family of Nsuase
issued a writ of summons against
the 1st
Defendant-Respondent-Appellant
(Appellant) for a declaration
that the land in question is the
property of the Plaintiff’s
Family, general damages for
trespass and perpetual
injunction. 2nd
Defendant successfully joined
the action through her next
friend Vida Kusi.
The parties are ad idem as
regards the identity of the
land. The central issue is who
owns the land, the subject
matter of this suit which was
filed some ten years ago.
The Plaintiff, who claimed that
he was suing in protection and
preservation of family property
due to divisions within the
family and the inaction of the
head of family despite repeated
calls on him to act decisively
in defence of the family’s
rights, maintained that the
disputed property was originally
acquired by his ancestors, Nana
Ama Serwaah and Nana Kweku
Bewuowu around 1906. He further
alleges that in 1926, the Kumasi
Public Health Board acquired a
site in the vicinity of his
ancestor’s property for
“sanitary purposes”. He further
alleged that in demolishing the
structures on the site the Board
had acquired for the project,
they inadvertently demolished
the two buildings which his
ancestors had erected on their
plot of land, some twenty years
earlier.
By the Plaintiff’s account,
eventually after years of
agitation, the government of
Ghana in 1968 returned their
land to the family. This was
expected to be done through Mr.
Michael Reginald Asante, the
head of family at the time,
whom, understandably, by virtue
of his position as such family
head, and the equally important
fact that he was literate, was
authorised by the family, to
conduct all negotiations with
regard to the property for and
on behalf of the family as
family property, and clearly not
as his personal property. The
plaintiff claimed that since
then he had dealt with the
property as family property. The
further contention is that
however, in 1993, when they
discovered that Asante had on
occasions dealt with the
property without their consent
and concurrence in a manner
which was totally inconsistent
with their right and interest in
the property, they had
persistently warded off a number
of trespassers, culminating in
this present action, when they
found defendants erecting a
fence around the said property.
The defendants disputed the
facts as pleaded by the
plaintiff, counter alleging that
Asante, in his lifetime acquired
the property in his own right as
his personal property and
exercised various acts of
ownership over it, citing
instances when he did so without
interference from the family,
including their acquisition of
the property from their grantor,
La petite Chemists. From the
Defendant’s account, the
Plaintiffs, having always had
notice of Asante’s activities on
the land and yet had stood by
and done nothing to assert their
right or interest, if any, in
the land are estopped by laches,
statute, acquiescence and
conduct from asserting any claim
to the land. Expectedly, the 1st
defendant counterclaimed for
virtually the same reliefs as
the plaintiff.
From the state of the pleadings,
the plaintiffs clearly bore the
evidential burden of
establishing, on the balance of
probabilities that the land was
family property. it was evident
from the pleadings that theirs
was an uphill task, given that
firstly the title deeds to the
property bore the name of
Asante, and secondly that the
claim to ownership to the
property, together with all the
facts they stood on in support
thereof, were all made at the
time he was dead. Consequently,
all these assertions ought to
stand up to judicial scrutiny.
The evidence they supplied in
support of their case was mainly
historical; family history.
Additionally, they tendered a
petition, Exhibit B, allegedly
written by the family and
co-signed by Asante, which
referred extensively to the
family character of the
property. The trial court,
unimpressed by the plaintiff’s
evidence dismissed the
Plaintiffs’ action and gave
judgment for the defendants.
Unperturbed, the Plaintiff
successfully appealed the said
decision. It is the Defendant’s
dissatisfaction with the
reversal of the decision by the
Court of Appeal that has
culminated in this instant
appeal, which is founded on the
oft –used omnibus ground of
appeal, the judgment is against
the weight of evidence and four
additional grounds. These are
set out hereunder.
“1.The decision of the Court of
Appeal setting aside the
judgment of the trial court for
non-compliance with Section 27
(1) and (2) of Act 122 is not
supportable in law.
2. The Court of Appeal failed to
pay due cognisance to the fact
that the Plaintiff’s claim
disputes the right, title, and
interest, of Asante, who had
died long before the institution
of the action.
3. The Court of Appeal failed to
recognise that the Defendants
were bona fide purchasers of the
disputed property for value
without notice.
4. The Court of Appeal erred in
not invoking its power to amend
the declaration of title of the
disputed property in favour of
the 1st Defendant to
a declaration of title in favour
of the 2nd as the
trustee of Gifty Kusi Ampofowaa,
a minor.”
Undoubtedly, the respondents had
difficult hurdles to clear at
the trial. The emphasis however
is on the fact that the hurdles
were quite difficult, not that
they were insurmountable. Three
important legal principles
loomed as barriers against them.
First, the title deed covering
the property was in the name of
Michael Reginald Asante; raising
a presumption in his favour,
albeit a rebuttable presumption,
that by virtue of s. 35 of the
Evidence Act 1975, NRCD 323
that indeed he bore the full
beneficial or legal title. This
meant the respondents bore the
evidentiary burden of proving
that contrary to the disclosure
on the Exhibit 4, they were the
legal owners of the property.
Second, the respondents relied
mainly on family history in
proof of their case. The legal
principle as I observed in the
case of In re Koranteng-Addow
(Decd); Koranteng –Addow v
Koranteng [1995-96] GLR 252
that family history, like
traditional history, must be
treated with great
circumspection. Third, the
claims the respondents made
against the deceased Asante in
respect of the property, were
all critical assertions against
the deceased, in whose favour
the presumption of ownership
stood. These claims belong to
the class of evidence that must
at first be received with the
greatest caution and scrutinised
carefully before being given the
requisite weight. It is however
clear from the evidence that the
respondents acquitted themselves
creditably, by discharging
satisfactorily, the legal
burdens placed on them.
At summons for directions, the
trial court set down only two
key issues for determination.
The court might have thought the
other issues were tangential or
subsidiary to these two main
issues. The trial court however
thought the respondents, as
plaintiffs, had failed to
establish their claim to title
conclusively, since all the
registered leases tendered in
evidence by the respondents were
in the name of Michael Reginald
Asante, without any reference to
the family.
The Court of Appeal, as already
noted, reversed the decision of
the trial High Court, on the
ground, inter alia, that the
appellant had failed to comply
with the statutory procedural
requirements of ss.27 1 and 2 of
the Land Registry Act, 1962, Act
122 and consequently failed to
prove registration and indeed
title to the subject matter.
Speaking unanimously through
Asare Korang JA, their Lordships
observed:
“For the appellant it was
submitted that on additional
ground one of the grounds of
appeal that admittedly the
respondents tendered Exhibits
1,3,4,5,6 and 7 without
objection which exhibits on
their faces bore evidence of
registration. But the mere
tendering of the said exhibits
in court did not amount to proof
of registration because the land
registry Act 1962, Act 122
clearly states the statutory
procedure to be followed in
establishing proof of
registration. These procedures
are to be found in Sections 19
and 27[1] and [2] of the Act
which enjoin a party first to
apply to the Registrar of Lands
for the relevant copy or extract
of certificate of registration
and thereafter for the other
party to be served with notice
of intention to tender the said
copy or extract or certificate
of registration together with
delivery to him of the relevant
document. The Appellant
submitted that failure to comply
with the procedure set out in
the statute was fatal and the
mere production of the originals
of Exhibits 1, 3,4,5,6 and 7 was
not sufficient evidence of
registration. For this statement
of law, the Appellant relied on
the case of Botchway vs. Okine
[1987-88] 2 GLR C.A.
The answer made by the
respondent to this argument was
that the fact of registration of
the documents referred to was
admitted by the Appellant in his
pleadings and in any case
BOTCHWAY vrs.(sic) OKINE was
distinguishable from the facts
of this case because the
Co-Defendant in that case by his
defence specifically denied the
fact of registration of the
Plaintiff’s document and put the
plaintiff to strict proof of
same. My understanding of the
holding in BOTCHWAY vs. OKINE
[Supra] is that the mere
production in court of an
original deed which on the face
shows a land registry number, is
not sufficient evidence of
registration and that for such a
deed to be receivable in
evidence, there must be a
compliance with the procedures
laid down in Sections 19 and 27
[1] and [2] of Act 122. Botchway
vrs. OKINE [supra] also decided
that the mere admission of a
document did not prove the truth
of its contents against a person
who was not a party to it and as
OSEI-HWERE, J.A (as he then was)
observed in that case,
“It ought to be emphasised that
the registration does not
prevent the court from
ascertaining who has a valid
title to a piece of land, and it
must also be borne in mind that
registration will not confer any
legal right or title on any
party who took his grant from a
person who had no legal title to
convey… there is nothing in the
Land Registry Act, 1962 which
states that the validity of any
deed of conveyance or any
instrument should not be
questioned or challenged in any
court of law after it has been
registered”
It seems to me therefore, having
regard to the principle
expressed in Botchway vrs Okine,
that even though the Appellant
admitted the fact of
registration, of the Respondents
documents in this case, it was
incumbent on the Respondents to,
as a matter of law, prove the
registration of their deeds or
conveyances in the manner or
according to the procedures
enshrined in Sections 19 and
27[1] and [2] of Act 122. The
failure of the Respondents to
comply with the statutory
requirement of the law therefore
negated the verdict of the trial
judge that the Respondents had
proved their title to the
property in dispute on the basis
of the registered documents
tendered by them”
A critical question emerging
from the original ground 1, as
well as the additional grounds
1, 2, and 4 which I intend to
take together, is what is the
scope of ss. 27 (1) & (2) of
Act 122.
The main thrust of his argument
is that since their title deed
and related instruments they
tendered at the trial as
exhibits 1-7, were all admitted
into evidence without a single
objection, and no issue was
raised as to their validities or
otherwise, the appellate court
erred in its conclusion that the
appellants ought nevertheless to
have complied with the procedure
laid down in ss. 19 and 27 of
Act 122.
Indeed, counsel’s arguments in
support of the additional
ground 1 in particular, covered
a wide range of issues including
the scope of and the policy
reasoning behind the statutory
provisions under consideration
to other legal principles
thought to pertinently relate to
the classification of enactments
and the fundamental differences
between mandatory, absolute,
obligatory or strict legislation
on the one hand as opposed to
directory or permissive
provisions on the other hand,
the consequences that flow from
non compliance or a breach of a
mandatory or directory enactment
and so also the related common
law principle of waiver which
has found expression in O. 11 r.
47 (4) of the High Court (Civil
Procedure) rules CI 47. To this
end, extensive references were
made to cases like Dahabieh v
Turqui [2001-2002] SCGLR498;
Oman Ghana Trust Holdings v
Acquah [1984-86] 198, among
others. I commend him for his
industry and the in-depth
analysis of the issues involved
in the controversy. Our simple
answer to the issues he has so
carefully addressed is this. We
first make reference to the
relevant sections 19 and 27 of
Act 122.
Sections 19 & 27 of Act 122
“S19- A Registrar shall, on
application allow searches to be
made at reasonable times in a
book, register, or a list in the
Registrar’s custody and shall on
request give certified copies
of, or of a duplicate or copy of
a registered instrument filed in
a register.
27 (1)A copy of an extract or
certificate of registry,
purporting to be signed by a
registrar shall be receivable in
evidence in a Court without
further or any other proof,
unless it is proved to be a
forgery.
S27(2)The party proposing to use
the copy, extract or certificate
in evidence in a civil case
shall give notice of that
intention in writing to the
opposite party, and at the same
time shall deliver to the
appropriate party a copy of the
copy or extract and the
certificate of the copy or the
extract.
S27 (3) On proof of the service
or an admission of the receipt
of the notice and the copy, the
certified copy or extract shall
be received in evidence if the
Court is of the opinion that the
service has been in sufficient
time before hearing to enable
the opposite party to apply for
a search of the original book or
register from which the copy or
extract was made.
(1)
On proof of the service or on
admission of the receipt of the
notice and the copy, the
certified copy or extract shall
be received in evidence if the
Court is of the opinion that the
service has been made in
sufficient time before the
hearing to enable the opposite
party to apply for a search of
the original book or the
register from which the copy or
extract was taken.
What is the import of these
provisions? We are of the
opinion that a fair reading of
these provisions as a whole
would not, respectfully, result
in the decision reached by their
Lordships of the Court of
Appeal. The whole purpose of
these provisions is to
facilitate proof of registration
of instruments. Provision is
therefore made under s19 for
searches to be made in any of
the official documents in the
registrar’s custody, namely,
book, register, or list.
Additionally, under it, a
request may be made for
certified copies of or of a
duplicate or copy of a
registered instrument filed in a
registry, obviously for use in
civil proceedings. The
procedural requirement of notice
in writing, as set out in s.27
arises only where a party seeks
to tender any such copy, or
extract, or certificate in
evidence. It allows a party to
procure evidence of a registered
instrument from proper sources,
that is the custody of the
registrar, while providing
adequate opportunity to the
opposing party to have advanced
knowledge of the fact so that
the genuineness or otherwise of
those instruments could be
ascertained before they are
tendered at the trial. This
procedure enables justice to be
served as the party against whom
the instrument is sought to be
tendered, and who therefore
could exercise his or her right
of waiver of notice in writing,
is not caught by surprise or
prejudiced in any manner, while
unnecessary delay is altogether
avoided. The sections 19 and 23
of Act 122 exist for the mutual
benefit of parties in civil
litigation; their primary
purpose being to facilitate the
smooth, fair and speedy conduct
of land litigation.
It stands to reason then that
objections raised on appeal,
relating to non compliance with
these statutory provisions could
only properly be sustained
where, the record reveals, inter
alia, that the document sought
to be tendered falls into any of
the stipulated classifications,
namely, that it was either a
certified copy or a duplicate or
a copy of a registered document,
obtained on request from the
registrar, following a search of
the official record, namely, a
book, register or list as the
case may be.
Was that the situation in this
case? I do not think so. The
appellant had pleaded per his
statement of defence, in
paragraphs 4-7 the following:
“4. The said land was acquired
by the said Michael Reginald
Asante from the President of the
Republic of Ghana in trust for
the Golden Stool and the Kumasi
State in 1961 under a deed of
conveyance which was registered
at the Kumasi Lands Registry
under Title No. 2686 and Serial
No. 7007.
5. There is no evidence from the
said deed of conveyance that the
said land was and is the
property of the plaintiff’s
alleged family.
6. The said Michael Reginald
Asante remained in undisturbed
possession of the said land
until in March 1969 he sold his
interest therein to Kofi Aboagye
under a deed of conveyance which
was registered at the said
Registry under Title No. 2686
and Serial No. 134/69.
7. The said Kofi Aboagye also
sold his interest in the said
land to Michael Reginald Asante
in September, 1978, under a deed
of conveyance which was
registered at the said Lands
Registry under Title No. 2686
and serial No. 853/78.”
The respondents have admitted
these in unequivocal terms as
per their paragraphs 9, 10 and
11 of their reply. In reality
therefore, no issue was joined
as to the authenticity of the
documents sought to be tendered,
more particularly as to whether
they were extracts, copies or
duplicates of the registered
instruments. The real matter in
controversy related to whether,
Asante executed these documents
transferring title to the
beneficiaries in his own right
as bona fide owner of the
disputed property or as it was
contended, surreptitiously,
without the knowledge and
consent of the respondents who
allege that they are the true
owners, since he was only
holding the said land in trust
for the family.
It is an elementary principle of
law that in civil litigation,
where no issue was joined as
between parties on a specific
question, issue or fact, no duty
was cast on the party asserting
it to lead evidence in proof of
that fact or issue. Indeed, most
of the delays associated with
civil trials would be avoided,
if this simple elementary
evidentiary rule were strictly
adhered to. On the basis of this
time honoured principle, the
appellants were not even under
any obligation to have tendered
all of these documents
complained of, documents which
bore evidence of registration ex
facie, let alone be held
accountable for non compliance
with the procedural requirements
of notice under s. 27 of Act
122, let alone have their claim
thrown out on that basis. In any
event, the evidence does not
suggest in the remotest sense
that these documents fall into
any of the stated
classifications or even more
importantly, that at the time
they sought to tender them; the
respondents raised objections to
the non compliance with the
statutory requirements. In
Fori v Ayerebi 1966 2 GLR 627,
a most direct and helpful
authority on the point about
undenied averments, this court
held:
“When a party had made an
averment and that averment was
not denied, no issue was joined
and no evidence be led on that
averment. Similarly, when a
party had given evidence of a
material fact and was not
cross-examined upon it, he need
not call further evidence of
that fact.”
See also Hammond v Amuah
[1991] GLR 89 at 91, as well
as Western Hardwood
Enterprises Ltd. v West African
Enterprises Ltd. [1998-99] SCGLR
105. The appellants had no
burden to discharge in terms of
the procedural requirements of
the s. 27(2) and (3) of Act 123.
Indeed, on the clear facts of
this case, Botchway v Okine
supra, a case in which the fact
of the registration of the
appellant’s title was challenged
and so lay at the heart of the
dispute, is clearly
distinguishable from and
therefore totally inapplicable
to this case, in which
registration is not an issue.
The fundamental difference
between the two cases can
distinctly be drawn from this
observation by Osei-Hwere JA:
“One of the pillars on which the
trial judge rested his judgment
was that the plaintiff had
failed to prove that his deed of
title had been registered.
The question of registration
loomed ominously at the trial
because of the telling effect of
non-registration provided be
section 24(1) of the Lands
Registry Act, 1962(Act 122). At
the trial the plaintiff tendered
his title deed as exhibit A and,
in his attempt to impugn the
co-defendant’s title deed; he
tendered it as exhibit B.”
To have their claim dismissed on
the grounds articulated by their
Lordships is not factually or
legally justifiable.
This conclusion does not however
spell the doom of the
respondents’ case. Is there
sufficient evidence to justify
an affirmation of the appellate
court’s findings, inferences and
conclusions? The evidence led by
the respondents does support the
concurrent finding of fact by
both the trial and appellate
courts that the family did
petition the Asantehene over the
disputed land and further that
Asante was one of the
signatories to the petition.
Rather remarkably, Appellant
counsel submitted that the trial
court never made a definitive
finding that Asante was indeed a
signatory to the petition. The
arguments were variously
expressed in the following
terms:
“38 Notwithstanding the clear
findings above, the Court of
Appeal upset the judgment of the
trial court thus at page 5 of
its judgment:
“The learned trial judge, it is
also quite clear, failed to
consider the legal effect of
Exhibit ‘B’, the petition which
the trial judge said he was more
than adequately satisfied
Michael Reginald Asante had
signed himself on behalf of the
Appellant’s family. It was
categorically stated in Exhibit
‘B’ that the land in dispute was
the property of the family to
which Michael Reginald Asante
belonged.” Counsel’s emphasis”
39 …Their Lordships in the Court
of Appeal fell into grievous
error…”
41 It has been demonstrated that
the judgment of the court of
Appeal was based on a grievous
mistake of attributing to the
trial judge what he never said
i. e. that the learned judge had
held that “he was more than
adequately satisfied Michael
Asante had signed” Exhibit B.
The appellant therefore invites
this court to invoke its powers
under article 129 (4) of the
constitution 1992 and section 2
(4) of the courts Act 1993 (Act
459) to expunge the error and
preserve the decision of the
trial judge…”
In view of these serious
submissions I have had to
scrutinise the judgment of the
trial court. Contrary to
counsel’s contention the trial
judge did make a finding of fact
as attributed to him, he only
failed to draw an inference that
would have favoured the
respondents cause. That part of
the judgment reads:
“It is also fact that while
exhibit B more than adequately
satisfies me that PW2 NA
Reginald Asante signed a petiton
to the Asantehene on behalf of
the family, yet neither the
plaintiff nor PW1 linked PW2
with the petition or any
negotiations towards the
revesting of the land.”
We have no reason to question
that finding, which as we shall
demonstrate shortly, is
warranted by the record. Also,
Appellant counsel has pointed to
what he describes as
inconsistencies in the evidence
of PW1 and PW2 to demonstrate
that no such events took place.
I do not find any material
conflicts or inconsistencies of
the like that would cast doubts
in their version of events.
Speaking on behalf of this
court, I concluded in the case
of Efisah v Ansah [2005-2006]
SCGLR 943 that, it is only
major discrepancies that go to
the root of testimonies that
affect the weight that must be
attached to evidence given at a
trial. We expressed ourselves in
the following terms:
“In the real world, evidence led
at any trial which turned
principally on issues of fact,
and involving a fair number of
witnesses, would not be entirely
free from inconsistencies,
conflicts or contradictions and
the like. In evaluating evidence
led at a trial, the presence of
such matters per se, should not
justify a wholesale rejection of
the evidence to which they might
relate. Thus, in any given case,
minor, immaterial,
insignificant, or non-critical
inconsistencies must not be
dwelt upon to deny justice to a
party who had substantially
discharged his or her burden of
persuasion.”
We think that the account given
by a man aged 87 years, many
years after the events happened,
part of those years having been
spent in political detention, in
our country’s non-friendly
detention facilities, are bound
to be imperfect to some extent.
Indeed, to demand that the
evidence of such a witness must
fit in every particular or tally
with that of his equally aged
illiterate relative, years after
the event is the height of
injustice. But does the
appellant counsel’s line of
cross examination not belie any
suggestion that a petition was
written. The appellants admit
the existence of the petiton,
their real complaint being that
the family contrived to forge
Asante’s on realising that the
area had been rezoned.
We therefore proceed to examine
the more serious complaint as to
whether or not Asante was a
signatory to the said petition.
It was contended that the Court
of Appeal failed to apply the
relevant cogency test to two
material assertions by the
plaintiffs against the deceased
Asante, who had died some 11- 13
years before the institution of
the action, namely, that he was
a signatory to the family
petition, and further disputed
his right to title and interest
to the land, assertions which
clearly amounted to declarations
against his interest. The main
argument is that the respondents
failed to provide the requisite
corroboration to the claim that
Asante signed the petition Exh
A.
The sound principle that
corroboration must be provided
in support of claims or charges
made against dead persons, is
expressed as follows in In
re Garnett; Gandy v Macauly
(1885) 31 Ch D 1 :
“The law is that when an attempt
is made to charge a dead person
in a matter, in which if he were
alive he might have answered the
charge, the evidence ought to be
looked at with great care; the
evidence ought to be thoroughly
sifted, and the mind of any
Judge who hears it ought to be,
first of all in a state of
suspicion; but if in the end the
truthfulness of the witnesses is
made perfectly clear and
apparent, and the tribunal which
has to act on their evidence
believes them, the suggested
doctrine [of corroboration]
becomes absurd. ”
Again I did not only apply this
principle in the Koranteng –Addo
case, but proceeded a step
further to explain who bears the
burden of proof in such cases.
Fundamentally, the authorities
do not lay down any intractable
rule of law that charges or
claims against a dead person
cannot succeed without
corroboration. To the contrary,
the discernible principle is
that a court can proceed on the
uncorroborated evidence if
satisfied about its
truthfulness. The only rider or
caution is that the court must
examine the evidence critically,
with utmost care, weighing or
sifting it thoroughly, to ensure
there are no loopholes or that
the charge or claim does not
suffer from any absurdities or
the like. A judge in receipt of
uncorroborated evidence
consisting in the main of
charges against a deceased
person does not swallow the
story lock, stock and barrel,
but first views it from a
suspicious standpoint. If the
story as presented is neither
incongruous, preposterous,
unreasonable, illogical, nor
incredible, then the judge may
proceed to give it the weight it
deserves. The exercise relates
to the cogency or the weight to
be attached to the evidence
given. In this regard, the
question of the credibility of a
witness is critical to a
determination of the cogency
issue. In our jurisprudence, the
criteria for determining the
obviously difficult question of
credibility, is statutorily
provided for under s.80 of the
NRCD 323, ( now the Evidence
Act, 1975). The law stipulates:
“Attacking or supporting
credibility
(1) Except as otherwise
provided by this Act, the Court
or jury may, in
determining the credibility of a
witness, consider a matter which
is relevant to prove or
disapprove the truthfulness of
the testimony of the witness at
the trial.
(2) Matters which may be
relevant to the determination of
the credibility of the witness
include, but are not limited to
(a) the demeanour of the
witness;
(b) the substance of the
testimony;
(c) the existence or
non-existence of a fact
testified to by the witness;
(d) the capacity and
opportunity of the witness to
perceive recollect or relate a
matter about which the witness
testifies;
(e) the existence or
non-existence of bias, interest
or any other motive;
(f) the character of the
witness as to traits of honesty
or truthfulness or their
opposites;
(g) a statement or conduct
which is consistent or
inconsistent with the testimony
of the witness at the trial;
(h) the statement of the
witness admitting untruthfulness
or asserting untruthfulness.”
For which reason, we believe a
court would be justified, in
addition to using other relevant
matters, to take some of the
matters set out under s. 80 of
the Evidence Act, 1975, NRCD
323, into consideration to
determine the vexed question of
whether or not to accept the
claims against the deceased.
Again, we think it is important
to underscore the point that the
corroboration that is required
is independent evidence, oral or
documentary, that would confirm
the truth of the assertions
made. The S. (7) 1 of the
Evidence Act, (1975) NRCD 323,
defines corroboration as
consisting of:
“...evidence from which a
reasonable inference can be
drawn which confirms in material
particular the evidence to be
corroborated and connects the
relevant person to the crime,
claim or defence.”
So for example, expert evidence
properly procured and admitted
in terms of the Evidence Decree
NRCD 323 could suffice.
Applying all of these simple
legal principles to the facts of
this case, it became clear to me
that the respondents provided
the requisite corroboration to
the oral claim, supported by the
document Exhibit B, that Asante
signed the petition. In an
attempt to satisfy the just
requirements of the law, and
test the genuineness of the
signature said to be that of
Asante, I examined one of the
documents tendered by the
appellant in proof of
undisturbed acts of ownership
exercised by Asante, a deed of
assignment between Asante and
one Opanin Kofi Aboagye Exhibit
5 and also exhibit 6. Asante’s
signature on these exhibits
which were tendered by the
appellants are obviously not
disputed. Contrariwise, these
are his genuine signatures
tendered by no less a person
than the party disputing the
assertions made by the
respondents against the deceased
Asante. An even cursory
comparison of Asante’s signature
as appears on the Exhibits 5 & 6
with that of his alleged
signature on Exhibit B shows the
two are the same. We find the
same neat, smooth, confident and
nicely written signature; no
tell tale signs of a forgery, as
for instance, a wobbly writing
or smudginess characteristic of
or suggestive of forgery works.
We will have no justification to
disturb the crucial finding by
the trial and appellate
justices, which finding is
supported by the record that
Asante was a signatory to the
Exhibit B.
The correct inference that flows
from this critical finding that
Michael Reginald Asante
co-authored the petition with
the PW2 for a return of this
land which was originally family
land is that Asante was bound by
the terms of the declarations he
made against himself and cannot
resile from them. Indeed, under
the s.25 of the Evidence Act,
1975, NRCD 323, the facts
recited in the document were
conclusively presumed to be true
between the parties and all
persons claiming through them.
In short, it created an estoppel
by written document, binding the
appellant and his successors.
Differently stated, the legal
effect of this declaration
against interest is that Asante
and persons claiming through him
are estopped from asserting
otherwise. Appellant was unable
to establish that Asante’s case
fell under any of the exceptions
created under s. 25 (2).
In any event, given these bare
facts, this sound and well
settled principle of customary
law, intended to protect family
property from being converted
into private property, would
imply that even if Asante used
his own personal resources,
ingenuity and the best of his
negotiating skills in acquiring
the property, he did so on
behalf of the family and not for
himself. The principle, which
has been accepted and applied in
a number of cases, including the
relatively modern case of
Ansah –Addo and Others v Addo
and Another AND Ansah- Addo and
others v Asante (Consolidated)
[1972] GLR 400, is that if
any member of a family uses his
or her own funds to recover
property lost to the family, the
property reverts to its family
character; it does not become
the individual’s private
property. On this principle
also, the property cannot be
described as the appellants’
self acquired property.
Yet again, the trial judge erred
in concluding that:
“No attempt whatsoever was made
by the Plaintiff to support his
assertion that the family
consented to a pledge of the
land by Reginald Asante to Kofi
Aboagye. The same paucity of
evidence relates to the pledge
as well as its redemption.”
The evidence on record does not
support this finding. Exhibits 4
and 5 which were tendered in by
the Defendants are indentures
made between Kofi Aboagye and
Michael Reginald Asante and
between Michael Reginald Asante
and Kofi Aboagye respectively.
The indenture between Michael
Reginald Asante and Kofi Aboagye
was made on the 17th
day of March 1969 and the
consideration for the assignment
was N¢4000.00. Nine years later,
precisely in 1978, another
indenture was executed between
Opanyin Kofi Aboagye and
Reginald Asante, also for a
consideration of the sum of Four
Thousand cedis.
Remarkably, the transaction was
made between the same parties
and for the same consideration
after a period of nine years.
The notoriously well known fact
in our jurisdiction is that land
does not depreciate; to the
contrary its value appreciates
significantly overtime. Had the
trial Judge taken judicial
notice of this notorious fact,
he would not only have found it
a bit startling that after nine
years the land which had
supposedly been assigned to
Opanyin Kofi Aboagye outright
was re-assigned to the same
party for the same
consideration. In other words,
why would Kofi Aboagye feel
compelled to re- assign the
property he had purchased to his
vendor at the same price some
nine years later? Are these set
of facts rather not consistent
with pledges? We are of the view
that these simple facts lend
credence to the Plaintiff’s
assertion that the transaction
was not a sale as contended by
the appellants, but rather a
pledge without the family’s
authority, which was later
redeemed by the family as
testified to by the respondents.
Their Lordships in the Court of
Appeal rightly concluded that
the judgment was indeed against
the weight of evidence.
There is no dearth of authority
on the issue of the
circumstances under which an
appellate court would interfere
with the findings of a lower
court. In the case of
Efisah v Ansah [2005-2006] SCGLR
943 @ 959, Georgina Wood
J.S.C (as she then was)
identified the grounds as
follows:
“The well-settled rule governing
the circumstances under which an
appellate court may interfere
with the findings of a trial
tribunal, has been examined
times without number by this
court in a number of cases, as
for example, Fofie v Zanyo
[1992] 2 GLR 475; and Barclays
Bank Ghana Ltd v Sakari
[1996-97] SCGLR 639. The dictum
of Acquah JSC (as he then was)
in the Sakari case, is for our
purposes, highly relevant. His
Lordship observed (at page 650
of the report) as follows:
“where the findings are based on
undisputed facts and documents…,
the appellate court is in
decidedly the same position as
the lower courts and can examine
those facts and materials to see
whether the lower courts
findings are justified in terms
of the relevant legal decisions
and principles”
It is thus well-settled that
specific findings of fact might
properly be said to be wrong
because the tribunal had taken
into account matters which were
relevant in law; or had excluded
matters which were crucially
necessary for consideration; or
had come to a conclusion which
no court, instructing itself on
the law, would have reached; and
where the findings were not
inferences drawn from specific
facts, such findings might
properly be set aside…”
See also In re Koranteng
(Decd); Addo v Koranteng
[2005-2006] SCGLR 1039
It was further submitted in
relation to the omnibus ground
of appeal, namely the judgment
is against the weight of
evidence that as well as the
additional ground 3, the
specific ground in relation
thereto, that the evidence
clearly established that they
were bona fide purchasers for
value without notice of the
Plaintiff’s family interest if
any, in the property. The court
of Appeal had concluded from the
evidence that:
“There was, however, evidence
led by the Appellant that as
soon as his family became aware
of the assignment of the land to
one Grace Nsiah, they took steps
to inform her that the land was
family property and when shortly
thereafter Grace Nsiah died,
they challenged her daughter and
successor’s use of the land. The
family also filed a Caveat,
Exhibit ‘A’ to warn people off
the land”.
We think the evidence justifies
the finding that the respondents
filed the caveat Exhibit A in
the Lands Department, Kumasi.
This evidence which was
proffered by the plaintiff in
clear unequivocal terms was not
challenged in the slightest
manner by the appellants. True,
the exhibit A was a duplicate,
which was admitted in evidence
by the trial judge despite their
objection. But, it is equally
true, that their line of
cross-examination on this
crucial document would have
informed the trial court as to
the cogency or weight to attach
to it, or the witnesses if any,
that the respondents should have
called in further proof of their
claim that they had put the
whole world on notice of their
interest in the property. Having
failed to challenge the
testimony along this legally
prescribed and well known
procedure, they are disabled now
from raising issues relating to
the wrong admission of evidence
or the weight given to the
document, or even that the
caveat did not conform to
regulations 16, Land Title
Registration Regulations 1986
(LI 1341). Indeed, given the
explanation as to why the
family filed the caveat and the
broad purposes it was intended
to serve, the argument that
caveats are not permitted under
Act 122 is most untenable. The
whole purpose of a caveat under
the PNDCL 152, ss111 and 112 is
to prohibit the “registration of
dispositions and the making of
entries in the register
affecting the land or interest
in question, without the consent
of the caveator”. A couple of
well settled legal principles
therefore defeat this argument
in its entirety. As rightly
contended by the respondent
where a party seeks to rely on
the doctrine of bona fide
purchaser for value, without
notice, what they are enjoined
to prove is that they had no
notice at all of their
opponent’s interest in the
property, not that they had the
notice but that they did not
think or find that the notice
conformed to law. Equity looks
to the intent rather than the
substance and would clearly not
endorse any such technicality,
intended to defeat the ends of
justice given that from the
evidence, the respondents caveat
was to warn the whole world
about their interest in the
land.
It is trite learning that any
person desirous of acquiring
property ought to properly
investigate the root of title of
his vendor. In this case there
is no evidence of such prudent
search conducted by the
Defendants. In their own
pleadings they asserted that
they only inspected the title
deeds of the Assignor coupled
with the permit for construction
and were satisfied. The record
does not also show that they
even sought professional advice
before entering into the
transaction. In my view, the
steps they claim they took are
not the adequate steps of a
prudent purchaser of this
particular property. Indeed, had
they extended their search to
the Lands Department, Kumasi,
the statutory body that kept
official records of lands in
Kumasi, they would have known
that the land was encumbered.
In OSUMANU v OSUMANU AND
ANOTHER [1995-96] 1 GLR 672-689
their Lordships held
that
“Any intending purchaser of
property is put on his inquiry
to make such investigations as
to title as would enable him to
rely on the plea of bona fide
purchaser for value without
notice. If he failed to make
such inquiries, he acted at his
own peril if subsequent events
disclosed that there was a valid
challenge to the title he
acquired.”
In any event, on the clear facts
of this case, showing the prompt
and sustained efforts on the
part of the family to protect
their property, the well known
case of
MAHAMA HAUSA AND OTHERS v. BAAKO
HAUSA AND ANOTHER [1972] 2 GLR
469-487,
defeats their plea of bona fide
purchaser for value. It was held
in that case, that:
“Even if the second defendant
was a bona fide purchaser from
the first defendant the law
permits sales of family property
to be avoided in situations
where prompt action is taken by
the family concerned or its
representatives to prove that
the sale had been made without
the consent of the principal
members of the family. And in
this case there was no evidence
that the plaintiffs had slept on
their rights. Agbloe v. Sappor
(1947) 12 W.A.C.A. 187; Nelson
v. Nelson (1951) 13 W.A.C.A.
248; Owiredu v. Moshie (1952) 14
W.A.C.A. 11; Bayaidee v. Mensah
(1878) Sar.F.C.L. 171; Insilea
v. Simons (1899) Sar.F.L.R. 105
and Manko v. Bonso (1936) 3
W.A.C.A. 62 cited.”
These are the reasons for
disallowing the appeal.
G. T. WOOD (MRS)
CHIEF JUSTICE
J. ANSAH
JUSTICE OF THE SUPREME COURT
J. V. M. DOTSE
JUSTICE OF THE SUPREME COURT
ANIN-YEBOAH JSC
:
The Respondent to this appeal
brought an action at the High
Court, Kumasi against the
appellants herein for
declaration of title to a piece
or parcel of land known as plot
No. 10 Block VIII Guggisberg
Road, Adum, Kumasi. In his
statement of claim, the
respondent pleaded that he was
bringing the action as a
principal member of the Nana Ama
Serwah family of Nsuase, Adum,
Kumasi. Apart from the
declaration, he also sought
general damages for trespass and
an order for perpetual
injunction against the
appellants and their privies.
Both in the statement of claim
and the evidence led on behalf
of the respondent herein, the
case for the respondent appears
to be simple. According to the
respondent, his two ancestors,
namely; Nana Kwaku Bewuawu and
Nana Ama Serwaa Nsuase acquired
a larger piece of land of which
the disputed land forms part.
The two ancestors of the
respondent put up dwelling
houses and lived there since
1906. According to the
respondent, the Kumasi Health
Board entered upon the land and
demolished the two houses to
provide public place of
convenience for the
neighbourhood. The Kumasi
Health Board, however, never
utilized the two plots and the
family which was not paid any
compensation, petitioned the
Asantehene for the plot of land
in dispute, described and known
in these proceedings as Plot No.
10 Block VIII Guggisberg Road,
Adum, Kumasi. It was part of
the respondent’s case that the
family was granted a lease
covering the land in dispute.
One Michael Reginald Asante, a
member of the family acted as
its representative. It was part
of the respondent’s case that
the said Michael Reginald
Asante’s name was on the lease
because he represented the
family by virtue of being the
only educated person in the
family. The said Michael
Reginald Asante due to financial
problems used the lease as
security for a loan from one
Kofi Aboagye .The property was
redeemed in about eight or nine
years of the transaction. The
same Michael Reginald Asante,
subsequent to the redemption of
the property, pledged the land
to one Madam Grace Nsiah for a
loan. According to the
respondent, this was done
without notice to the family, so
the family approached Madam
Grace Nsiah who was then sick
and died later without any
conclusive transaction with
her. It was thereafter that the
family of the respondent filed a
caveat at the Land’s Department,
through Messrs Mmieh and co. a
firm of solicitors, to warn
prospective purchasers or
lessees of the land. Respondent
concluded that the family heard
nothing from any official of the
Lands Department till the
appellants were found on the
land putting up a structure
thereon.
The Appellants controverted most
of the allegations, both in the
pleadings and evidence led at
the trial. Several documentary
evidence were placed before the
trial court in the form of
exhibits covering various
transactions on the land at
different times. The appellants
contended that they acquired the
property by purchase from the La
petite Chemists. It was indeed
pleaded in the statement of
defence that the original lessee
was Michael Reginald Asante who
acquired the land from the
Government of Ghana by a lease
on behalf of the Golden Stool.
Michael Reginald Asante
transacted with one Kofi Aboagye
by a deed in 1969 and later the
said Kofi Aboagye sold his
interest to Michael Reginald
Asante in 1978 by deed. In
1981, Michael Reginald Asante
sold his interest in the land to
one Grace Nsiah who died
intestate in 1995. Letters of
administration for her estate
was successfully granted by the
High Court, Kumasi to her
successor one Rose Kudolo in
1996. It was Rose Kudolo as
personal representative of Grace
Nisah who executed a deed and
transferred her interest to La
petite Chemists Limited. In
April of 1999, the first
appellant herein acquired by
deed the interest of La petite
Chemists Limited and directed
that the lease be made in the
name of the second
defendant/appellant herein in
trust for one Gifty Kusi, then a
minor.
The root of title of the
appellants led him to plead the
defences of estoppel, laches,
conduct and acquiescence against
the appellant. The defence of
bona fide purchaser for valuable
consideration was not formally
pleaded and same would be
addressed later in this opinion.
The parties at the trial court
settled on few issues for
determination given the fact
that most of the facts were not
in controversy. The learned
trial judge entered judgment for
the appellants on the 5/04/2001
dismissing the entire claim and
granting reliefs sought in the
counterclaim. In his judgment
the trial judge, in my
respectful view, evaluated the
evidence in detail and gave
adequate reasons for not
believing the respondent.
Indeed, he pointed out the
inconsistencies in the evidence
of the respondent and his
witnesses in the root of title
of the family. The learned
trial judge delivered as
follows:
“In law, a party seeking a
declaration of title to land
must equivocally show his root
of title of the land and acts of
continuous possession thereof.
The plaintiff’s evidence
alleging original acquisition of
the subject land by his
ancestors was weak”
Indeed a trial judge after
evaluating the evidence and
coming out with such a damning
finding of weakness in a claim
for declaration of title of land
would dismiss the claim. This
he did. See AKOTO II & ORS
V KAVEGE & ORS [1984 –
86] 2 GLR 365 CA.
He, however, in his judgment
held among other things that the
first defendant/appellant had
established his root of title
and granted the counterclaim. He
was satisfied that the lease
originally granted in this case
as the“Parent lease” that is
Exhibit 6 was “granted to
Michael Reginald Asante
simpliciter, without any
trappings of any family”. He
proceeded to further hold all
subsequent transactions
involving Michael Reginald
Asante admitted in evidence as
Exhibits 5 and 6 made no
reference to the family and
therefore the allegation that
Akosua Mansah and Akosua Nyameba
redeemed the property was not
true.
Upon appeal to the Court of
Appeal several grounds were
argued to persuade the court to
set aside the judgment of the
trial court.
In its judgment dated the
15/04/2005, the Court of Appeal
was of the opinion that the
property was family property and
that the learned trial judge had
failed to consider Exhibits “B”,
a petition sent to the
Asantehene by the family to
reclaim the land. According to
the Court of Appeal, any
interest which Michael Reginald
Asante obtained or held in the
property “did not oust the
rights and interests of his
family” irrespective of his name
appearing in several documents
of title tendered in evidence.
The appellants have appealed
against the unanimous decision
of the Court of Appeal on
several grounds. The Court of
Appeal relying on the case of
BOTCHWAY V OKINE
[1987-88] 2 GLR 1 CA held, inter
alia, that failure of the
appellants herein to comply with
the mandatory provisions of
sections 19 and 27 (1) and (2)
of the Land Registry Act, Act
122 negated the title of the
appellants. Indeed the
appellants were solely relying
on the purchase from La petite
Chemists Limited and prior
transactions to support their
root of title to the acquisition
of the property in dispute. The
argument before this court on
the above holding by the Court
of Appeal was to the effect that
the learned justices of the
court of appeal had misconceived
the principle in the BOTCHWAY’S
case supra. This argument, ably
presented, was to the effect
that there was no denial by the
parties herein that the
documents were not registered or
inadmissible. It was therefore
not open to the Court of Appeal
to raise this statutory
condition against them.
From the evidence, all the
documents establishing the root
of title of the defendants were
admitted without objection as
Exhibits1, 3,4,5,6 and 7. The
Evidence Act, NRCD 323 of 1975
section 6 places a simple duty
on a party in a trial when
evidence is being offered
against him. He is enjoined by
basic rules of evidence under
common law, statutory provisions
notwithstanding, to object to
any evidence tendered against
him if the grounds for objection
exists to enable the court to
rule on.
I concede that if inadmissible
evidence is not objected at the
trial court, an appellate court
is duty bound to discard it on
appeal and rely only on the
admissible evidence to give its
judgment. See KOOM V
AWORTWI [1929] FC 26-29, 404 and
POKU V FRIMPONG [1972] IGLR 230
CA.
However, in this case, it was
not the case that the various
exhibits referred to above
tendered on behalf of the
appellants were inadmissible.
The admission of the documents
without objection at the trial
court and the fact that none of
the documents in issue suffered
from any legal defects was
sufficient for the trial judge
and the court of appeal to rely
on the case of WESTERN
HARDWOOD ENTERPRISES LTD V WEST
AFRICAN ENTERPRISED LTD.
[1998-99] SCGLR 105 to admit
them in evidence. In my
respectful opinion, if the
learned judges of the court of
appeal had considered the fact
that there was no need for
further proof of the leases they
would not have relied on
BOTCHWAY V OKINE (supra)
to hold that the documents of
title duly registered were not
properly in evidence as their
tendering was counter to the
statutory provisions referred to
above. In my opinion, it is
when the issue of registration
of a document crops up in
proceedings that would call for
compliance with sections 10, 11
and 12 of Act 122.
It does appear that throughout
the proceedings of 5/12/2000
when the first defendant/
appellant herein gave his
evidence and tendered all the
registered documents on the land
in evidence learned counsel for
the plaintiff/respondent herein
raised no objection about their
admissibility or registration.
No wonder learned counsel for
the appellant referred us to the
oft-quoted case of FORI V
AYIREBI [1966] GLR 627
SC to support his contention
that failure on the part of
counsel to object to the
evidence tendered against his
client made it unnecessary for
further proof of the evidence
not challenged. I think this is
settled proposition of law and
it would be mere pedantry to
cite several decided cases on
it. The Court of Appeal,
however, held in this case as
follows:
“My understanding of the holding
in BOTCHWAY V OKINE
(supra), is that the mere
production in court of an
original deed which on Its face
shows a land registry number, is
not sufficient evidence of
registration and that for such a
deed to be receivable in
evidence, there must be a
compliance with the procedure
laid down in sections 19 and 27
[1] and [2] of Act 122”.
My understanding of Osei –Hwere
JA [as he then was] in his
pronouncement on the effect of
the above sections is that the
court is enjoined to ascertain
who has a valid title
irrespective of the production
of a registered document in
evidence which per se does not
confer statutory title on a
holder. The learned judge did
not, in interpreting the above
sections, declare that
non-compliance with the sections
of the statute defeated the
title of the holder.
As learned counsel for the
Appellant pointed out in his
written statement of case, the
fact that the respondent did not
call for further proof by
raising many question as to the
admissibility or otherwise of
the documents, the trial court,
and in my opinion the Court of
Appeal for that matter, was
bound to consider the documents
in evidence.
I am therefore of the opinion
that the learned judges of the
Court of Appeal were in error in
applying the BOTCHWAY case to
enter judgment for the
respondent.
Another ground of appeal relates
to the failure on the part of
the court of appeal to recognize
that the appellants were bona
fide purchasers of the disputed
property for value without
notice. The evidence on record
which to me was not disputed was
that the defendants/appellant
bought the property from La
petite Chemists Limited for
valuable consideration. The
root of title to the property
shows that the property was in
the name of Michael Reginald
Asante as the original lessee.
Asante assigned the original
lease to Grace Nsiah with the
consent of the Republic of Ghana
and same was also registered as
Exhibit 3. Upon the death of
Grace Nsiah one Rose Kudolo as
administrator assigned the
property to La Petite Chemists
Limited in Exhibit 1. On
12/04/1999, La Petite Chemists
Limited sold the property to the
first defendant which lease was
tendered as Exhibit 7. The
question that I may respectfully
ask is this: with this abstract
of title what was expected of
the appellant as a prudent
purchaser of a vacant land? If
the property in dispute was a
tenantable one, the presence of
the tenants would have alerted
the appellants to inquire from
the tenants to know who put them
there and to whom rents were
paid. Such could constitute
constructive notice to any
prudent purchaser. See
CRAYEM V CONSOLIDATED AFRICAN
SELCETION TRUST LIMITED
[1949] 12 WACA 443 and
USSHER & ORS V DARKO
1977 I GLR 476 CA. At the time
of the assignment from La petite
Chemists Limited to the
appellants there was a
foundation with iron rods which
had been done by La Petite. The
appellants, through the first
appellant, spelt out the
abstract of title to the land by
recounting the various
transactions from the first
lease between the Government of
Ghana and the original lessee
Michael Reginald Asante, dated
1963 as Exhibit 6. All the
subsequent transactions to the
last assignment were tendered to
show that over a period close to
forty years the property was not
encumbered in any way.
The caveat which according to
the respondent was allegedly
placed on the land was
categorically denied by DW1, who
as a representative of the Lands
Department gave a vivid abstract
of title to the land in
dispute. In my opinion, in the
absence of the caveat, a prudent
purchaser of the land in dispute
was not required to do more than
inspection of the documents and
inspection of the land to
ascertain whether it was not
physically encumbered. Section
36(2) of the Conveyancing Act,
1973 NRCD 175 fortified the
appellant’s position as they had
the first lease dated 1963. In
my respectful view, there was
evidence to establish a defence
of bona fide purchaser for
valuable consideration without
notice. It may be said that
that defence was not pleaded as
required of a defendant under
Order 19 rule 16 of the High
Court [civil Procedure] Rules
1954 LN 140 the rules of court
as it then stood. The repealed
rules have been re-enacted as
Order 8 Rule (1) of the High
Court (Civil Procedure) Rules,
CI 47 of 2004. It has been said
in cases like IN RE
ROBINSON’S SETTLEMENT, GRANT V
HOBBS [1912 I CH 717,
NATIONAL OMNIBUS SERICES
AUTHORITY & OR V. OWUO
[1969] CC 158 CA that the
rule is not inflexible and could
be applied if the other party
would not be taken by surprise.
See also ASARE V BROBBEY
[1971] 2 GLR 33 I CA in
which Archer JA [as he then was]
explained the flexibility of the
rule in appropriate cases.
In this case, I am of the
opinion that the High Court and
the Court of Appeal could have
held without any inhibitions
whatsoever that the appellants
were bona fide purchasers for
valuable consideration without
notice as the evidence placed
before both courts were more
than adequate to sustain the
plea of such a purchaser. James
LJ in PILCHER V RAWLINS
[1871-72] 7 LR CH APP 259
said of the plea at page 269-269
as follows:
“I propose simply to apply
myself to the case of a
purchaser for valuable
consideration without notice,
obtaining upon the occasion of
his purchase and by means of his
purchase deed some legal estate,
some right, some legal advantage
and according to my view of the
established law of this court,
such a purchaser’s plea of a
purchase for valuable
consideration without notice is
an absolute unqualified
unanswerable defence and an
unanswerable plea to the
jurisdiction of this court.
Such a purchaser when he has
once put in that plea may be
interrogated and tested to any
extent as to the valuable
consideration which he has given
in order to show the bona fides
or mala fides of his purchase
and also the presence or the
absence of notice; but when he
has gone through that ordeal and
has satisfied the terms of the
plea of purchase for valuable
consideration without notice
then according to my judgment
this court has no jurisdiction
whatever to do anything more
than to let him depart in
possession of that legal estate,
that legal right that legal
advantage which he has obtained
whatever it may be. In such
a case a purchaser is entitled
to hold that which without
breach of duty he has conveyed
to him. [Emphasis mine]
I proceed to hold that the
appellants were clearly bona
fide purchasers of the property
for valuable consideration
without notice of any
encumbrances whatsoever.
The other grounds of appeal
argued together relate to the
evidence led and the reversal of
same by the Court of Appeal. In
my respected opinion, the trial
judge was dealing with the
property of one Michael Reginald
Asante who had died. The family
contended that it was a family
property. However, the trial
judge in an effort to come to
the right conclusion subjected
the evidence to evaluation. He
pointed out the apparent
inconsistencies in the evidence
of the respondent and his
witnesses and he gave adequate
reasons for disbelieving them.
The respondents’ maintained
throughout the trial that the
property is a family property
and for that matter, the said
Michael Reginald Asante had no
authority to pass title without
their knowledge and consent.
The learned trial judge found
against them that it was not
so. On the facts, the reason
why Michael Reginald Asante’s
name was used to procure the
lease was incomprehensible. It
has never been the law or
practice in this country that
only literates could represent
the family when a family
property is to be documented for
and on behalf of a family.
After the family had allegedly
redeemed the property from Kofi
Aboagye as they claim, Michael
Reginald Asante dealt with the
property by assigning the same
property to one Grace Nsiah for
valuable consideration.
One may respectfully ask a
simple question: Why did the
family not demand from Michael
Reginald Asante the surrender of
the lease to prevent similar
incidents in the future? No
reason was forthcoming from the
family explaining why after
allegedly paying money to redeem
the property they never found it
prudent to ask for the lease
from Michael Reginald Asante.
They never in the course of the
evidence explained why they
never took any step at all to
prevent future occurrence of
paying money to redeem their own
property. This probably led the
appellants to plead estopel by
conduct, laches and acquiescence
against the respondent as they
did not act to prevent Michael
Reginald Asante from exercising
ownership over the property when
at the same time he held the
legal title to it.
It is not the law that once a
family owns a property it can
not divest itself of same. The
family like any entity or
individual is equally capable of
losing its property by sale,
gift and other means like even
lawful acquisition by the
government under any existing
law. A successful plea of
laches, estopel by acquiescence
etc could also deny the family
of their property in legal
proceedings. In this case,
however, the learned trial judge
in coming to the conclusion that
the property was not a family
property assigned sufficient
reasons for it. It was his duty
as a trial judge to apply the
law to the facts presented. I
have perused the evidence and
found that he was right in his
conclusions on the law and the
facts. I think, with due
respect to the learned Justices
of the Court of Appeal, they
were in error in coming to a
different conclusion as the
reasons for doing so was not
convincing enough in law.
It was clear from the evidence
that the respondent, PW1 and PW2
are members of the same family.
They all came to repeat the
pleadings on oath without more.
In my opinion, they could have
called further evidence from
Kofi Aboagye’s family or Madam
Grace Nsiah’s family to show how
the family had taken steps to
reclaim the property if indeed
these were actually done. The
law frowns upon this as same is
settled in cases like
MAJOLAGBE V. LARBI 1959
GLR 190 and Zambrama V
Segbedzi [1991-2] GLR 221
CA.
The duty of the Court of Appeal
when reviewing the evidence was
to look at the findings made to
ensure that those findings were
supported by the evidence on
record. To reverse findings of
facts made by the trial judge
for the reasons given in the
judgment, with respect, was
unsatisfactory. Apaloo JSC [as
he then was] in his dissenting
opinion in the case of
R.T. BRISCOE [GHANA] LTD V PREKO
[1964] GLR 322 said at page 330
as follows:
“Proof as I understand it, is
the conviction that evidence of
certain facts carry in the mind
of the judge or jury. It is not
pre-ordained and has no
objective existence, capable of
discovery either by logic or
analysis. I think what suffices
in each case must vary depending
on the nature of the case, and
the person to whom the evidence
is addressed. I believe that
is the reason behind the golden
rule, that an appeal Court
should not disturb a finding of
fact made by trial court if
there be evidence to support
it”(emphasis mine)
As the reasons canvassed for
reversing the findings made by
the learned trial judge do not
appear convincing enough in a
case which the trial court was
dealing with a property which
the deceased had in his lifetime
exercised virtual control over
by pledging and assigning etc
without any apparent and clear
interruption by the family, his
findings under such
circumstances could not be
faulted. Several decided cases
like BISI V TABIRI alias
ASARE [1987-88] IGLR
360, MOSES V ANANE
[1989-90] 2 GLR 694 and
AMANKWAH V NSIAH
[1994-95] GLR 758 established
the principle that evidence
against a deceased person must
be scrutinized with the utmost
suspicion. The trial judge in
my opinion was right and arrived
at his findings by considering
the evidence on both sides in
detail.
In my opinion, the appeal
succeeds and the judgment of the
court of appeal is hereby set
aside and in its place I restore
the judgment of the High Court,
Kumasi dismissing the original
claim and granting the reliefs
on the counterclaim.
ANIN YEBOAH
JUSTICE OF THE SUPREME COURT
BAFFOE-BONNIE JSC:-
The plaintiff/respondent sued in
the High Court. He lost. He
appealed to the Court of Appeal.
He won. This appeal before this
court therefore is by the
defendant/appellant seeking a
reversal of the judgment of the
court of appeal and for the
decision of the trial High Court
Judge to be re-instated. The
facts of this case are simple.
The President of Ghana per the
Lands Commission, acting as
trustees for the Golden Stool of
Ashanti, gave a 99 year
lease-hold interest in the
parcel of land in issue to one
Michael Reginald Asante on the 1st
of April 1961. The lease was
registered as Title No. 2686,
Serial No. 7007 on 28th
December 1963. This was tendered
at the trial as exhibit 6.
Thereafter, Asante exercised
various acts of ownership over
the property. By a deed of
assignment dated 17th
March 1969, Asante assigned the
property to one Opanin Kofi
Aboagye. The Assignment was
again duly registered as Serial
No. 853/ 78.At the trial it was
admitted without objection and
marked as exhibit 5.
By a deed of Assignment Kofi
Aboagye re-assigned the property
to Asante, the original
Assignor. This was also
registered and at the trial this
deed was also admitted without
objection and marked as
exhibit 4. Asante reassigned
the property by a deed dated 12th
June 1981 to Grace Nsiah which
was also registered and admitted
in evidence without objection as
exhibit 3. Nsiah died in
1995 and by a registered deed
dated 4th February
1999, Rose Kudolo, her daughter
and administrator of her estate,
assigned the land to Lapetite
Chemist Ltd this deed was also
registered and tendered as
exhibit 1. By a deed dated
12th April 1999,
Lapetite sold, for valuable
consideration, the property to 1st
Defendant’s wife, Vida Kusi, who
holds the property in trust for
their daughter, Gifty Kusi
Ampofowaa, a minor. The
registered deed was admitted
without objection as exhibit
7.
All the assignments listed
above, it must be noted, were
sanctioned by the state
It is the case of the Respondent
herein that the land in dispute
is actually their family
property. At a certain point in
time, together with other lands,
it was acquired by the
government for public use. That
when the government failed to
make use of the land so
acquired, Asante and some other
members of the family were
mandated to take steps to have
the land in issue restored to
Asante’s family as family land.
In furtherance of this
objective, a Petition was
drafted and allegedly signed by
Asante and another member of his
Family, Osei Asibey Mensah, who
gave evidence as PW2. It is the
Respondent’s case that
eventually the land was restored
to the family and Asante who was
leading the restoration bid took
a lease in his name. It is their
case therefore that since Asante
acted on behalf of the family,
as evidenced by the petition in
exhibit B, he ought to be taken
as a trustee for the family and
so the property belongs to the
family.
At the High Court, Kumasi the
respondents who were plaintiffs
sought the following reliefs:
-
A declaration that the
parcel of land designated as
Plot No. 10, Block VIII
Guggisberg Road, Adum Kumasi
is the Property of the
Plaintiff’s Family.
-
General Damages for trespass
-
An order of Perpetual
Injunction to restrain the
Defendants, their Assigns,
Workmen and all other
person’s claiming through or
under them from any manner
interfering with the
Plaintiff’s Family
Possession and enjoyment of
the said property.
The High Court gave judgment in
favour of the Defendant therein
who is the Appellant in this
Court. Respondents in this Court
appealed to the Court of Appeal
which overturned the decision
the High Court Kumasi.
Dissatisfied with the Judgement,
the Defendant- Respondent has
appealed to the Supreme Court on
the following grounds:
-
The decision of the Court of
Appeal setting aside the
judgment of the trial Court
for non-compliance with
section 27 (1) and (2) of
Act 122 is not supportable
in law.
-
The Court of Appeal failed
to pay due cognisance to the
fact that the Plaintiff’s
claim disputes the right,
title and interest of
Asante, who died long before
the institution of the
action.
-
The Court of Appeal failed
to recognise that the
defendants were bona fide
purchasers of the disputed
property for value without
notice
-
The Court of Appeal erred in
not invoking its power to
amend the declaration of
title to the disputed
property in favour of the 1st
defendant to a declaration
of title in favour of the
second Defendant as the
trustee of Gifty Kusi
Ampofowaa, a minor.
-
The Judgment of the Court of
Appeal is against the weight
of evidence
I propose to deal with only two
grounds which in my opinion will
dispose of the appeal.
1 The decision of the Court
of Appeal setting aside the
judgment of the trial Court for
non-compliance with section 27
(1) and (2) of Act 122 is not
supportable in law.
2 The Court of Appeal failed to
recognise that the defendants
were bona fide purchasers of the
disputed property for value
without notice.
GROUND ONE
Even though the fact of
registration of the various
conveyances was never an issue
at the trial High Court, on
appeal the respondent raised for
the first time Act 122 sections
19 and 27(1) and (2) and
submitted that the failure of
the appellant to strictly comply
with its provisions was fatal to
the admissibility of the said
documents in evidence. Counsel
cited the case of Botchway
v. Okine 1987-882 GLR 1 CA
This submission seemed to have
found favour with the Learned
Justice of the court of appeal.
In their judgment the court of
appeal held as follows:
“.......It seems to me therefore
having regard to the principle
expressed in Botchway vs
Okine that even though the
appellant admitted the fact of
registration of the respondents
documents in this case it was
incumbent on the respondents to,
as a matter of law, prove the
registration of their documents
or conveyances in the manner or
according to the procedures
enshrined in sections 19 and 27
[1] and [2] of act 122.
The failure of the respondents
to comply with the
requirements of the Act
therefore negated the verdict of
the trial judge that the
respondents had proved their
title to the property in dispute
on the basis of the registered
documents by them”
Section 19 of Act 122 provides
as follows:
A registrar shall, upon
application, allow searches to
be made at all reasonable times
in any book, register or list in
his custody, and shall upon
request give certified copies
of, or extracts from, any entry
in any such book, register or
list or of any duplicate or copy
of a registered instrument filed
in his register
27 (1) and (2)
27 (1) “Every copy or extract or
certificate of registry
purporting to be signed by a
registrar shall be receivable in
evidence in any Court without
further or other proof thereof,
unless it is proved to be a
forgery.
(2) The party proposing to use
it in evidence in a civil
case shall give notice of
his intention in writing to the
opposite party, and at the same
time shall deliver to him a copy
of the copy or extract and of
the certificate thereon; and on
proof of the service or on
admission of the receipt of such
notice and copy, the certified
copy or extract shall be
received in evidence if the
Court is of opinion that the
service has been made in
sufficient time before the
hearing to enable the opposite
party to apply for a search of
the original book or the
register from which the copy or
extract has been taken.”
The Court of Appeal interpreted
these provisions, citing the
Botchway case, to say the
documents were not properly
tendered in court. In my
respectful view the Court of
Appeal misconstrued the
provisions of the act.
The evidence before the Court of
Appeal was that at the trial
when the Appellant sought to
tender the various registered
documents, the Respondents did
not raise any objection to them
at all in any form and they were
all admitted in evidence by the
trial Judge. So what was the
appellant to prove again?
It is a basic principle in
evidence that no evidence is
necessary to prove an admitted
fact. This is so basic as to
admit of no dispute. In fact at
the summons for directions stage
it is only unadmitted or denied
facts that are in issue and need
to be proved. This principle has
found expression in several
decided cases.
Ollennu JSC said this in the
case of Fori v Ayirebi
1966 GLR 627 SC at Pg 647
“ When a party makes an
averment and that averment is
not denied no issue is joined on
that averment and no evidence
need be led. Again when a party
gives evidence of a material
fact and is not cross-examined
upon it, he needs not call
further evidence of that fact.”
Aikins JSC said, “Where the
pleadings of the parties were ad
idem that there was a valid
lease between the Apowa stool
and TBL, the plaintiff was not
bound to lead evidence to
emphasise the validity of such
lease.” See Western
Hardwood Enterprises Ltd V.
West African Enteprises Ltd
1998-99 SCGLR 105
It was the respondent who first
introduced the registered
documents into the fray in his
statement of claim. The
appellants then raised in their
respective statements of defence
the fact of the existence of the
various documents and their
intention to rely on them. This
fact was acknowledged in the
replies to the respective
statements. Two of such
acknowledgements will suffice
here;
In the reply to the 1st
appellant’s statement of defence
he said in paragraphs 4 and 5
“4
The plaintiff admits paragraph
6, 7, and 8 of the statement of
defence but states that the said
transactions were without the
knowledge consent and occurrence
of his family and therefore did
not operate to transfer any
interest to the persons
mentioned therein.
5 The plaintiff admits paragraph
9, 10, 11, and 12 of the
statement of defence of the 1st
defendant and state that the
transactions stated therein
could not operate to transfer
any interest to the persons
mentioned therein.
There were similar
acknowledgements in the reply to
the defence of the 2nd
appellant. From these
admissions, clearly, the
appellant had been relieved of
the burden of proving the
existence or fact of
registration! What the
respondent at this stage was
challenging was not the fact of
registration but the value of
the registered document saying
that they were signed without
the consent and concurrence of
the family. The court of appeal
obviously mis-appreciated the
import of the Botchway
case in relation to sections 19
and 27(1) and (2) of act. In the
Botchway case the fact of
registration was in dispute. At
the Court of Appeal Counsel
submitted that the trial judge
had raised the registration
issue suo motu but the
Court of Appeal held in holding
1,
“it was certainly a
misconception to argue that the
trial judge suo motu raised the
point of registration of the
plaintiff’s document as the
co-defendant in his defence
specifically denied the said
registration and put the
plaintiff to strict proof
thereof.”
In holding 2a the court said,
“The
plaintiff’s document exhibit A,
could not be held to be a
registered document which was
effective to pass any title to
the plaintiff under the Land
Registry Act,1962 (Act122)
s.24(1)because:
The mere production in court of
the plaintiff’s original title
deed exhibit A, which showed on
its face the land registry
number was not sufficient
evidence of registration
It was clear from sections 10
11 and 12 of act 122 that the
fact of registration of a
document on land must be
ascertained from the copy or
duplicate of the instrument
filed. Sections 19 and 27 (1)
and (2) provided two procedural
stages to establish proof of
registration.
a. an application to the
registrar for the relevant copy
or extract or certificate of
registration and
b. the service on the other
party of notice of intention
together with delivery to him of
the relevant document. And it
was only when the document
presented in court had on its
face emanated from the registrar
and there was proof of such
notice that it was receivable in
evidence without further proof”
I do not see how this quote
taken from Botchway V
Okine could be construed
to mean that for a deed to be
receivable in evidence there
must be compliance with the
procedures laid down in sections
19 and 27 1 and 2 of Act 122, as
the Court of Appeal emphatically
said.
My understanding of this quote
is that when there is a dispute
as to the fact of registration
then the procedure laid down in
the act could be used to prove
such fact. If there is no such
dispute the issue did not call
for any proof to resort to
section 27(1) and (2). And it is
also not true that a document
that has not gone through such
verification is not receivable
in evidence. What the section
says is that when the document
goes through such verification
it is admissible without further
proof. So that, it is possible
to prove the fact of
registration by other means
other than through the procedure
laid down in section 27 (1) and
(2).
Tied to my position of no need
to prove admitted facts is the
provision on when objections to
the admissibility of a document
should be taken.
Section 6 of the Evidence
Act 1975, NRCD 323
provides as follows:
1) In every action, and at
every stage thereof, any
objection to the admissibility
of evidence by a party affected
thereby shall be made at the
time the evidence is offered.
(2) Every objection to the
admissibility of evidence shall
be recorded and ruled upon by
the court as a matter of course.
(3) Where a document is
produced and tendered in
evidence, and rejected by the
court, it shall be marked by the
court as having been so tendered
and rejected
The provision reproduced above
provides the rules for
admissibility of evidence
generally. Act 122 is specific
to the tendering of registered
title deeds. So that if the
specific procedure in Act 122
was not complied with section 6
of the evidence decree guides
the Respondent on what to do and
the time to do same. Not raising
the objection at that point must
be considered a waiver of the
right. One therefore cannot be
heard on appeal to be raising
the objection he ought to have
raised at the trial, more so
when the Respondent is not
disputing the fact of
registration.
It appears that the Respondent
is seeking to use the Appeal
process to cure defects in his
case as conducted at the trial.
It will be an abuse of the Court
process to allow them to do so.
It is my respectful view that
the Court of Appeal got it wrong
on this point.
The other issue that I will like
to consider is whether or not
the Appellant in this Court was
a bona fide purchaser for
valuable consideration without
notice.
It is the Respondents contention
that the Appellant should be
fixed with notice of the
Respondents family’s rival
equitable interest so as to
nullify the transfer of the
property from Rose Kudolo,
daughter of Nsiah to Lapetite
Chemist Ltd, a transaction which
was also registered and tendered
as exhibit 1. It is their case
that once La petite is fixed
with notice of the respondent’s
interest any subsequent transfer
will be affected by the notice.
The notice to Rose Kudolo is the
caveat they allegedly filed in
respect of the estate of Grace
Nsiah.
It is worth noting that it was
after the said caveat they seek
to fix the Appellants with that
Lapetite registered their title,
which subsequently conveyed
title to the Appellant. In any
case it was the same Lands
Commission in whose records the
caveat was allegedly filed which
registered Lapetite’s title. If
the Respondents were unable to
successfully prevent Lapetite
from registering the alleged
title passed on to them by Rose
Kudolo, then why now?
DW1, Mr Asante Manu Evans from
the lands commission
secretariat, told the court in
his evidence-in-chief that there
was no evidence of a caveat
filed by Mmieh and Co on file.
During cross examination the
following took place:
“Q I put it to you that a copy
of exhibit A (the caveat) was
delivered to Lands Commission
Secretariat,
Kumasi.
A No. I have studied the file
when the subpoena was received
and I was asked to attend court.
If it had been delivered, it
would have been on the file.
Q If exhibit A were on your
file you would have drawn the
attention of anyone who wanted
to deal in respect of the land.
A The caveat is an injunction
that would stop us from any
transaction unless a court order
was received.”
So from this wherein lies the
notice that the present lessee
could be fixed with?
Again from the series of
transactions carried out in
respect of this land even if the
court accepts the respondent’s
family’s interest in the
property there is no denying who
actually held the legal title
and who held the equitable title
if any. In fact from their own
pleadings the plaintiffs admit
that Michael Asante held the
legal title while the Family
held the equitable title. From
the narration of the root of
title on the various registered
documents on this land the said
Michael Asante dealt with the
property as if it was his own
and the family held him out by
their inaction as the legal
owner of the property. This is
borne out by the rather
half-hearted attempts they
allegedly made to assert their
interest in the property.
For example, the family sat
by and allowed Michael Asante to
take the property in his name
even though he was allegedly
pursuing the property on behalf
of the family. Their reason was
that Asante was the only
educated member of the family.
This turned out to be a lie as
PWI was found to be equally, if
not better, educated. Again,
when Asante sold the property to
Aboagye, the respondent said it
was some members of the family
that allegedly paid off the debt
and redeemed the property. Yet
after the alleged redemption the
property was re-assigned to
Asante. Again, they sat by as
Asante assigned the property to
Nsiah in 1981 and never did
anything until Nsiah died in
1995, fourteen years after the
assignment, when they allegedly
filed a caveat to show their
interest in the property!
In the case of Ussher v
Darko 1977 1GLR 476 at p 489,
Apaloo JA (as he then was)
said of legal and equitable
titles in relation to the
principle of innocent purchaser
for value without notice:
“If the plaintiff can show that
he obtained the legal estate for
value without notice of Sir
Edward’s equitable title he
takes free from it. As was said
in Pilcher v.Rawlins (1872) 7 Ch
App. 259 at p.269, the plea of a
purchaser for value without
notice is an absolute,
unqualified, unanswerable
defence against the claims of
any prior equitable owner.”
Interestingly all these claims
of the family are being made
against the backdrop that
Michael Asante is dead and
unable to defend himself. It
has always been advice to judges
to look with suspicion when
claims are made against deceased
persons. In the case of In
Re Agyepong(deceased), Poku v.
Abosi (1982-83) GLR 254
the Court of Appeal noted,
“The well established rule of
law is that a person making a
claim against the estate of a
dead man cannot sustain that
claim by his or her own
deposition and unless there be
some corroboration of it,
something to satisfy the court
that the assertion is literally
true, the court cannot take
notice of it.”
It is my view that if the Court
of Appeal had adverted its mind
fully to this and also the
principle of ‘innocent purchaser
for valuable consideration
without notice’, it would have
decreed title in the appellant.
It for these reasons that I
will also allow the appeal,
reverse the decision of the
Court of Appeal and reinstate
the judgment of the trial High
Court.
P. BAFFOE-BONNIE
JUSTICE OF THE SUPREME COURT
COUNSEL
S. KWAMI TETTEH FOR THE
APPELLANTS
MICHAEL GYANG OWUSU FOR THE
RESPONDENT
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