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Land - Ownership - Trespass
- Claim
from the same grantor. - Whether
either party has encroached on
the other party’s land -
surveyor called upon as an
expect failing to assist the
court arrive at a decision -
HEADNOTES
The parties herein are disputing
over a piece and parcel of land
situate at a place in Accra
called Bawaleshie. Both parties
claim from the same grantor.
Both parties claim to have
registered their respective
tract of land. Thus from the
pleadings, the issue boiled down
to the identity of the land and
whether from their respective
site plans contained in their
indenture that they claim to
have registered, either party
has encroached on the other
party’s land. This was the
ultimate issue, which from the
brief narration could have been
resolved with a properly drawn
up composite plan The trial
judge took the right step by
appointing a surveyor to draw up
a composite plan with the aid of
the documents, especially the
site plans presented by the
parties. It is clear the
surveyor created more confusion
than he was called upon to
resolve. -
HELD :-
There is no evidence the
plaintiff was aware Nii Ashie
Kotei no longer represented the
grantor family, nor was the
Lands Commission made aware of
it. Thus it is unreasonable to
reject exhibit A. In appropriate
proceedings, a plea of
limitation, laches and
acquiescence may even lie
against the grantor family. The
judgment of the Court of Appeal
is supportable for the foregoing
reasons. The appeal is
accordingly dismissed.
STATUTES REFERRED TO IN JUDGMENT
Evidence Act, 1975 (N.R.C.D.
323) Section 3(2)
CASES REFERRED TO IN JUDGMENT
Anthony Wiafe v. Dora Borkai
Bortey & Victoria Amoo, CA
J4/43/2015, unreported judgment
of the Supreme Court, dated 1st
June 2016
BOOKS REFERRED TO IN JUDGMENT
DELIVERING THE LEADING JUDGMENT
BENIN, JSC:-
COUNSEL.
PROSPER XORLA NYAHE FOR THE
DEFENDANT/RESPONDENT/APPELLANT
KWEKU PAINTSIL FOR THE
PLAINTIFF/APPELLANT/RESPONDENT
BENIN, JSC:-
This is an appeal from the
decision of the Court of Appeal,
which had reversed a decision of
the Circuit Court, Accra. The
parties herein are disputing
over a piece and parcel of land
situate at a place in Accra
called Bawaleshie. Both parties
claim from the same grantor.
Both parties claim to have
registered their respective
tract of land. Thus from the
pleadings, the issue boiled down
to the identity of the land and
whether from their respective
site plans contained in their
indenture that they claim to
have registered, either party
has encroached on the other
party’s land. This was the
ultimate issue, which from the
brief narration could have been
resolved with a properly drawn
up composite plan.
The trial judge took the
right step by appointing a
surveyor to draw up a composite
plan with the aid of the
documents, especially the site
plans presented by the parties.
The surveyor who did the
assignment testified as CW1.
Indeed his testimony leaves much
to be desired; he made a mess of
himself, and we wonder if he is
truly a professional surveyor.
In one breath, he said the
plaintiff’s land lay some 100
feet away from the disputed
land. In the next moment he said
the distance was about 45 feet
approximately. Yet in another
breath he said the two parties
showed the same piece of land.
As if there was not much
confusion already, he said the
defendant had also exceeded his
land, so only a part of the land
in dispute falls within the
defendant’s land. Indeed the
defendant’s land overlaps the
disputed area, according to the
witness. He was specifically
asked by counsel for the
defendant this question:
“You admit that the areas
covered by the site plan for Mr.
Appenteng, the defendant which
is marked yellow virtually
covers the land in dispute.” And
his answer was:
“No, there was an overlap”
It is clear the surveyor
created more confusion than he
was called upon to resolve. It
is no wonder that at the end he
could not tell the court exactly
the position of the plaintiff’s
land, as he himself had depicted
on the composite plan. The
following extract from his cross
examination by counsel for the
plaintiff is instructive:
“Q. So given the outcome
of what you did and in
accordance with the composite
plan, could you confirm to the
court where the plaintiff’s land
is located?
A.
If I compare the site plan
and the ground situation, there
is a shift of about 100 feet at
the north-western part.
Q. So as a result of the shift,
where would say the plaintiff’s
land is situated?
A.
My Lord, I think the court
will ascertain that.”
It is true that it is the
court’s duty to ascertain the
relative positions of the land
being claimed by each party. But
it is to ease that finding that
an expert, in this case, a
surveyor was called upon to
assist the court arrive at a
decision. If the expert is
unable to tell the court
precisely where the respective
pieces of land are located, in
spite of the site plans, then it
would have been better not
calling for expert testimony at
all. From the totality of the
evidence of the surveyor one is
able to point out not less than
nine areas where he gave
contradictory and inconsistent
statements. Since he was called
as a court witness, the court
ought to have treated his
testimony as unreliable and
lacking credibility, and should
have discountenanced it
altogether.
Rather unfortunate to
re-call, the trial court judge
chose to rely on those portions
of the surveyor’s evidence which
favoured the defendant’s case
and rejected the parts that
favoured the plaintiff’s case.
The court took that course
notwithstanding its own finding
that the surveyor ‘‘was at times
ambivalent on the
issues……………(and) confused
himself and reduced his
credibility as a witness.” The
Court of Appeal fell into the
same error, by accepting the
parts of the surveyor’s evidence
which favoured the plaintiff’s
case and rejected the other
part. Having done that, the
Court of Appeal was able to
overturn the trial court’s
decision on the facts. The Court
of Appeal, however, also based
its decision on the ‘nemo dat
quod non habet’ principle, in
that the grantor family having
made a valid grant to the
plaintiff had no more title to
pass to the defendant. The
courts below failed to realize
that they were not bound to
accept the findings of the
court-appointed surveyor even if
his testimony was credible and
reliable. They failed to realize
that the surveyor, as an expert,
was there to assist the court
only, so his evidence was
subject to all the rules
pertaining to evaluation of
witness testimony. The court as
the trier of fact was bound to
form an opinion on the facts,
independent of the surveyor’s
testimony. This is a statutory
edict captured in Section 3(2)
of the Evidence Act, 1975 (N.R.C.D.
323) which states that “where
there is no jury, all questions
of fact shall be decided by the
court.” In this country, this
applies to all civil trials.
Thus even where expert evidence
has been received, the power of
decision rests solely with the
trial judge in civil matters.
And as stated in Phipson on
Evidence, 15th
edition, paragraph 37-12 at page
925, “This is so even when the
decision turns on a matter on
which the tribunal would be
unable to understand the
evidence without the assistance
of experts.”
And given the fact that
the surveyor was not positive
and conclusive in findings he
himself had put down, nothing
prevented the courts from
rejecting same as unreliable and
forming their own opinions on
the evidence adduced by the
parties.
The defendant appealed
against the Court of Appeal’s
decision on these grounds:
1.
The judgment is against
the weight of evidence.
2.
The learned justices of
the Court of Appeal erred when
they gave judgment for the
plaintiff contrary to the case
put forward by the plaintiff as
revealed by the pleadings.
3.
The learned justices fell
into grave error when they
applied the principle of ‘nemo
dat quod non habet’ in resolving
the case in favour of the
plaintiff.
PARTICULARS OF ERROR
The principle of nemo dat
quod non habet is only
applicable where the subject
matter in dispute is the same
and the parties to the suit
claim through a common grantor.
4.
The learned Justices of
the Court of Appeal erred when
they held that the identity of
the disputed land was one of
agreed fact and that the trial
judge was bound by law to have
accepted this agreed fact
established without any proof.
This is essentially a
matter that can be resolved on
the facts, so we intend to deal
with all the issues together,
with emphasis on the omnibus
ground. This court has the task
now to review the entire
evidence on record by way of
re-hearing in order to ascertain
which of the parties’ evidence
is reasonably probable. In so
doing we have decided to discard
the evidence of CW1, the same
being unreliable and
discredited, thereby rendering
its probative value
inconsequential; in short no
weight should be attached to it.
At the hearing before the trial
court, both parties testified.
The plaintiff called three
witnesses. The summary of the
testimony of the plaintiff and
her witnesses is as follows.
According to the plaintiff her
husband acquired two plots of
land at a place called
Bawaleshie, a suburb of Accra,
in 1978 from the Tsiquaye family
of the Klana Quarter of La,
Accra. One of the plots was
registered in her name and the
other in her husband’s name. The
two plots adjoin each other. In
evidence-in-chief she was led by
her lawyer in respect of the
identity of her land, and was
asked:
“Q-The defendant says the land
that he claims to be his is
different from yours; what do
you say?” And her answer was:
“That is not correct. It is not
true because my land shares
boundary with my husband’s
land.....”
On acts of possession, the
plaintiff said she decided to
erect a house on the plot so she
bought two thousand blocks and
placed same on the land. Her
brother Kwesi Ofori-Atta who
testified as PW3 confirmed this
and said he was the one who saw
to the conveyance of the blocks
to the plot sometime in 1985.
The other two witnesses were
David Osei Yeboah (pw1) and
Godfred Kwesi Nkansah Baah,
(pw2). Pw2 was one of the
administrators of the estate of
the plaintiff’s late husband.
The administrators decided to
sell his land to pw1. The said
pw1 conducted a search at the
Lands Commission which confirmed
that the land was in the name of
the deceased and the adjoining
land was in the name of the
plaintiff. But when they
conducted a physical inspection
of the land, they discovered
that the plaintiff’s land as
well as part of the deceased’s
land had been fenced. A local
inquiry disclosed it was the
defendant who had erected the
fence wall. Pws 1 and 2
therefore went to the defendant.
The witness pw1 recounted the
two encounters with the
defendant in his
evidence-in-chief recorded as
follows:
“....myself and one of the
vendors, Mr. Kwesi Nkansah Baah
confronted Mr. Appenteng with
the evidence. We gave him a copy
of the search report for him to
verify.
Q-What was his reaction when you
showed the report to him?
A-He didn’t appear to have
anything against it. Two weeks
later, Mr. Kwesi Nkansah Baah
went back to Mr. Appenteng and
we demanded to know whether he
had any document to counter what
we had submitted to him. He did
not have anything to support his
interest in the land. At that
point Mr. Appenteng pleaded with
me to give up my interest in the
land offered me by the vendors
to enable him buy but I
................refused but
instead advised him that he
should contact Madam Ofori-Atta
to explore the possibility of
getting her to sell hers to him.
Mr Appenteng accepted the
suggestion............At that
meeting, we agreed with Mr.
Appenteng that I could go ahead
and demolish a part of the fence
wall and the temporary structure
that fell within the boundaries
of the land offered me by the
vendors. The condition was that
I should be responsible for the
construction of the new boundary
wall and also reconstruction of
the temporary structure.”
The witness added that following
this second meeting he went
ahead to demolish the wall and
the temporary structures as
agreed. He then concluded the
sale with the vendors. He said
in December 2010 the defendant
phoned to tell him that “he had
managed to lay hands on his
title documents and that I had
to go back to reconstruct the
wall I had demolished. I took it
as a big joke. Naturally, I
demanded to see documents and as
I speak, he has not been able to
show me any title documents.
Since then when he made that
empty threat, I have continued
to develop my property without
let or hindrance.”
Pw2 confirmed in material
details the testimony given by
pw1. The defendant denied that
any of the matters spoken of by
pws1 and 2 in the alleged
encounters with him took place.
In his evidence the defendant
stated that he acquired this
land from the head of the
Niiquaye Tse We of the Klana
Quarter of La in 2001. He
erected a fence wall and a
wooden structure and planted
caretakers therein. In 2004 he
was given an indenture-exhibit 1
dated 16 March 2004. He said he
remained in undisturbed
possession until he was invited
by the Nima Police where he got
to know the plaintiff. The
police asked both of them to
produce their documents and
according to him “after going
through the documents, the
Police said if both of us were
claiming the same land then it
has to go to court.”
On the encounter with pws1 and 2
he said pw1 alone came to him
and requested to see his
documents as he was interested
in buying the land from him
(defendant) but he told pw1 he
could not give him his
documents. He said he only got
to know pw2 when he came to
testify in court.
The first witness for the
defendant dw1, was Dr. Nii
Kortei Dzane, who testified as
attorney for Nii Kotei Amli III,
head of the grantor family. The
substance of his testimony was
that the family granted the land
in dispute to the defendant in
2001 and gave him the document
exhibit 1 with site plan
attached. He said Nii Ashie
Kotei who signed the plaintiff’s
deed, exhibit A was not the head
of family at the material time.
The next witness for the
defendant was one Apronti
Godson, dw2. He testified that
in 2013 he conducted a search
for the defendant in respect of
the disputed land and it
disclosed that it was in the
name of the defendant. This
search report was tendered as
exhibit 5.
The Court of Appeal found that
both parties were ad idem as to
the identity of the land in
dispute, a finding which is
supported by the evidence on
record. The meeting between
pws1, 2 and defendant confirmed
this. The defendant in his
police caution statement
confirmed it. From the totality
of the evidence on record, it is
the piece of land measuring 100
by 90 feet more or less, lying
to the south of plaintiff’s late
husband’s land (now the property
of pw1), and sharing boundary
with this land.
The only issue is the ownership
of this land. It is purely a
question of fact, and the burden
of producing evidence rests with
the plaintiff. On the evidence,
the plaintiff led evidence as to
how she and the late husband
acquired two adjoining plots,
one for each of them. There was
evidence she placed 2000 blocks
on the land. She made efforts to
develop the land by securing
building permits, but could not
do so due to the husband’s
illness. Her husband passed into
eternity and his land was sold
to pw1 by the administrators.
One of the administrators, pw2
and the person to whom they
eventually sold the plot pw1
went to meet the defendant. The
detailed encounters have been
reproduced already in this
decision. The significance of
this encounter was three-fold: i.
the defendant impliedly admitted
having trespassed into the
plaintiff’s husband’s land; ii.
the defendant agreed that pw1
should pull down the part of the
wall that had encroached upon
the said land and reconstruct
same at the correct place; iii.
the defendant told them he did
not have his documents on the
land, which is understood to
mean as at the time of the
meeting.
It is said that a plaintiff
cannot rely on the weakness of
the defendant’s case in order to
succeed in a land case. But it
does not mean that where the
defendant has made important
admission prior to or at the
trial the plaintiff cannot rely
on it. It does not also mean
that the defendant’s evidence,
even though discredited, cannot
inure to the benefit of the
plaintiff. By conceding to pw1’s
demolition of part of the fence
wall, the defendant had
effectively conceded that the
land he claimed was given to him
was not correct. He had conceded
that he knew the wall he erected
had partly encroached on
somebody’s land.
And the evidence established
that the remainder of the land
covered by the defendant’s fence
wall after pw1 had demolished a
part was the land lying south of
pw1’s land, which the undisputed
evidence establishes is the
adjoining land owned by the
plaintiff.
The defendant is saying the
plaintiff’s land lies elsewhere.
If this is accepted it means the
plaintiff’s land no longer
adjoins that of her late
husband. That is clearly
untenable in the light of the
overwhelming evidence on record.
If the defendant’s testimony is
accepted, it’d mean he owns part
of the land he has ceded to pw1;
but he has no claim against pw1.
Following the concession
defendant made to pw1, it means
what remains of the land is less
than what the defendant purports
to have secured by exhibit 1.
At the trial the defendant did
not appear to be a witness of
truth, a fact which should not
have been glossed over by the
courts below. For the
credibility of a witness is very
critical in assessing and
evaluating his evidence, and
what weight to attach thereto.
To begin with, both defendant
and his grantor said he bought
the land in 2001. Three years
later he was given a document
exhibit 1 which the defendant
says he registered in 2005. But
a look at exhibit 1 disaffirms
what defendant and dw1 said.
Exhibit 1 does not show the land
was given to the defendant in
2001. It does not show it is
even a registered instrument.
And there was no way it could
have been registered in 2005
when the oath of proof was taken
in November 2009. It also shows
the document was received at the
deeds registry on 26 November
2010. The defendant’s
explanation was that he
submitted it to the Lands office
in 2004 so he was not in a
position to explain all these
obvious anomalies. On the face
of exhibit 1, it is clear the
purported registration in 2005
was either backdated or was
plainly false. A court of
justice cannot countenance such
misconduct on the part of
whoever was involved in putting
the 2005 registration number on
exhibit 1. Exhibit 1 does not
give rise to any legal
consequence and is rejected
accordingly. It is clear it was
prepared and given this veneer
of legality to defeat the
plaintiff’s claim.
Next, if indeed the defendant
had exhibit 1 in proof of his
title he would not have told pw1
he did not have a document. And
indeed he did not have it having
regard to the date it was
received and stamped at the
deeds registry.
Thirdly, the defendant denied in
evidence he knew pw1 prior to
seeing him in court in this
case. It was part of the attempt
to deny the narrative of the two
encounters he had with pws1 and
2. Hence his evidence was that
it was only pw1 who came to him.
Pw2 had testified that he knew
the defendant at both KNUST and
at Roman Ridge in Accra. But the
denial by the defendant was
clearly an afterthought because
the defendant failed to suggest
this to pw2 when he testified,
in line with the principle that
a party is required to put
across to his opponent so much
of his case as he does not
admit, during cross examination.
On the contrary, the questions
that were put to pw1 during
cross examination confirmed that
the defendant knew him before
this case. The following
extracts from the cross
examination of pw2 will bear out
whether or not pw2 was present
at the encounters with
defendant:
“Q- You said you went to Mr.
Appenteng, is that correct?
A- That is correct.
Q- When you went to Mr.
Appenteng, he told you the land
belonged to him and he had been
in possession for over ten
years, is that not correct?
A- Mr. Appenteng never said so.
Q- I am putting it to you that
you were not truthful to the
court when you said Mr.
Appenteng never said so.
A- I have sworn to tell the
truth; Mr. Appenteng never said
so.
Q- You requested for his
document, is that correct?
A- We did not request for his
document.
Q- What did you ask him to
produce to you when you went to
him?
A- We only put it to him that
the land belongs to Madam
Comfort Ofori and gave him a
copy of the joint search report
we had secured”
On whether or not pw2 and
defendant knew each other before
they met in court, this extract
from pw2’s cross examination by
defendant’s counsel is also
revealing:
“Q- Your allegation that you
know Mr. Appenteng in KNUST is
not true.
A- I know Mr. Appenteng both
from Roman Ridge, Accra and
KNUST.
Q- It was only in Roman Ridge
that you got to know Mr.
Appenteng not in KNUST as you
are alleging.
A- I still affirm what I said.”
It is clear the defendant was
not being truthful to the court,
and is discredited as a witness.
Dw1 was also not being truthful,
when he said they gave land to
the defendant in 2001.
On the plaintiff’s grantor not
being the head of family at the
time he signed exhibit A for
her, that is of no moment. If he
was a former head of family this
must be known to the Lands
Commission so that they will be
in a position to reject any
document signed by him.
According to dw1 the family
heads and elders would sign a
document signifying that a
particular person has been
appointed a head of family. How
will the Lands Commission know
about this unless it has been
deposited with it. Thus if such
head signs a document and his
name appears in the records at
the Lands Commission as the head
of the family, that document
will be accepted for
registration. And indeed any
lessee risks not having his
document registered if it is
issued by the present head of
family who is unknown in the
records of the Lands Commission.
Indeed the scenario being
described was played out in the
case of Anthony Wiafe v. Dora
Borkai Bortey & Victoria Amoo,
CA J4/43/2015, unreported
judgment of the Supreme Court,
dated 1st June 2016. In that
case the then Nungua Manche was
removed from office and that
removal was affirmed in a
judgment of this court. The
court judgment was not
communicated to the Lands
Commission. The destooled chief
called Nii Odai Ayiku continued
to grant leases of stool lands
which were duly registered by
the Lands Commission. One such
registered document was the
subject of the dispute in the
case cited. This court stated
that “...unless the court’s
decisions were brought to the
notice of the Lands Commission
to enable them to rectify their
records, it would be unfair to
fault them for registering any
document issued in the name of
Nii Odai Ayiku IV. It would
therefore be unjust and
unreasonable in the
circumstances for the court to
reject exhibit A.”
There is no evidence the
plaintiff was aware Nii Ashie
Kotei no longer represented the
grantor family, nor was the
Lands Commission made aware of
it. Thus it is unreasonable to
reject exhibit A. In appropriate
proceedings, a plea of
limitation, laches and
acquiescence may even lie
against the grantor family.
The judgment of the Court of
Appeal is supportable for the
foregoing reasons. The appeal is
accordingly dismissed.
A.
A. BENIN
(JUSTICE OF THE SUPREME COURT)
V. J. M. DOTSE
(JUSTICE OF THE SUPREME COURT)
P.
BAFFOE-BONNIE
(JUSTICE OF THE SUPREME COURT)
N. S. GBADEGBE
(JUSTICE OF THE SUPREME COURT)
Y. APPAU
(JUSTICE OF THE SUPREME COURT)
COUNSEL
PROSPER XORLA NYAHE FOR
THE
DEFENDANT/RESPONDENT/APPELLANT
KWEKU PAINTSIL FOR THE
PLAINTIFF/APPELLANT/RESPONDENT
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