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J U D G M E N T
The plaintiff by his writ filed
on 18th June 2007
claimed the following
a)
Declaration of title to a piece
and parcel of land situate lying
and being at North Kwashieman,
Accra and bounded on the North
by proposed road measuring 50
feet more or less, on the East
by vendors land measuring 100
feet more or less, on the South
by high tension line measuring
50 feet more or less and on the
West by vendors land measuring
100 feet more or less and
containing an approximate area
of 0.14 acre more or less which
piece of land is covered and
edged in the site plan.
b)
Recovery of possession
c)
General damages
d)
Perpetual injunction
e)
An order for demolition of all
structures, buildings, wall,
houses etc on plaintiffs land at
defendants costs
f)
Costs
g)
Recovery of plaintiffs legal
fees
The writ was accompanied by a
statement of claim the gist of
which is that the land in issue
was acquired for him and his
siblings by his father from the
Kwashieman Stool sometime in
October 1993 and demanded an
indenture from the stool in
their name. The plaintiff
pleaded further that with the
assistance of the family he
erected a fence wall around it
and had the said land registered
by the lands commission. For
well over 14 years he had been
in active and uninterrupted
occupation of the land until
recently when the defendant
entered the land and started its
rapid development thus this
action.
The defendant on the other hand,
pleaded that he acquired the
land from Kwashieman Mantse Nii
Lartey Kwashie Ahiaku V in May
1991 and was favoured with an
indenture. He then carried out
the construction of a private
residence without any let or
hindrance and has since
completed same.
The plaintiff denied the
defendants assertion that he
commenced building on the land
when he acquired it and stated
that it was only recently that
the defendant commenced the
building and was building at an
alarming speed.
At the close of the pleadings,
the issues agreed upon and set
down for determination were as
follows:
1)
Whether there was a valid grant
of the disputed land to the
plaintiff or his father by the
Kwashieman Stool in or around
October 1993.
2)
Whether plaintiff has since the
grant of the disputed land
exercised various acts of
exclusive possession on the
land.
3)
Whether at any point in time
while plaintiff was in
possession of the land there was
any adverse claim to the said
land.
4)
Whether the purported grant to
the Defendant by the same
Kwashieman stool while plaintiff
was in possession is valid.
5)
Whether any structures built by
the Defendant on the disputed
land after the commencement of
this suit is protected.
6)
Any other issue(s) arising out
of the pleadings.
To prove these issues, the
plaintiff did not give evidence
himself but his father gave
evidence on his behalf as P.W.1.
and called Grace Afuah Abokoma,
as P.W.2.
The plaintiff’s father gave
evidence to the effect that it
was he who acquired the land for
his children. P.W.1’s evidence
is that in the later part of
1992, Asafoatse Nii Ankamu, the
surveyor, whose name was given
whilst under cross- examination
as Mr. Isaac Tetteh and others
informed him that they had been
driven away from the land on
which they were mining quarry
stones so they want to sell to
him. P.W.1 agreed to buy after
he had inspected and found that
there was no activity on the
land. He also went to the chief,
Nii Lartey Ahiaku, since the
land belonged to the stool. In
the latter part of 1993 document
on the land was prepared for him
in the name of Mark, Vera and
brothers and sisters who are his
children. The document was
tendered and admitted as exhibit
‘A’ which is dated 28th
October 1993. P.W.1 also took
exhibit ‘A’ to lands to register
and was given exhibits B1 and B2
which is dated 16th
February 1994. P.W.1 filled the
big hole and walled it. He gave
further evidence that on 14th
April 2007, his wife called him
and informed him that some
people were laying foundation on
the land and he reported the
matter to Odokor Police Station.
Three (3) policemen were sent to
arrest those laying the
foundation but they resisted.
P.W.1 then went to Aryaa Police
Station and he was made to write
a statement a copy of which was
admitted as exhibit ‘C’ which is
dated 21/04/07. The plaintiff
also tendered photographs which
were admitted as exhibits D, D1,
D2 and D3. P.W.1 also denied the
defence case that he acquired
the land in May 1991 from the
Kwashieman stool, and also
denied that the defendant
started building on it
immediately since there was
nothing on the land in 1993 when
he bought the land.
P.W.2 Grace Afuah Abokoma, who
lives in the area, gave evidence
that she and the people around
the area know that P.W.1 who
also lives in the same vicinity
is the owner of the land in
dispute and that other persons
including an old lady who sells
tomatoes know P.W.1 as the
owner. P.W.2 gave further
evidence that it was this old
lady who sells tomatoes who sent
her daughter Baby to go to
inform P.W.1 that some people
were working on his land. As
P.W.1 was not in at that time
the message was given to her,
P.W.2 and she informed P.W.1’s
wife. This, according to P.W.2,
happened in 2007. According to
P.W.2, people who are close to
her have been asking her why
P.W.1 had allowed somebody to
build on his land and when she
asked P.W.1 he said the matter
is in court.
P.W.2 also gave evidence that
apart from a fence wall around
the land, there was no
development on the land, except
food crops planted by somebody
who lived with the tomato seller
with the permission of P.W.1.
This farming according to her
ended around August 2006 when
the main crops were cut.
The defendant also gave evidence
on how he came by the land. He
said, he went to the chief of
Kwashieman on 12th
January 1991 for the land at the
cost of ¢300,000.00 now GH¢30.00
and a bottle of schnapps. On 12th
May, 1991, the chief signed the
indenture and demanded the
balance of the GH¢20.00. It was
on 15th May, 1991,
that he went back to pay the
balance and took the document,
which was tendered as exhibit I.
The defendant said he started
the actual construction of the
house in May 1991, but after
reaching 5 footing at some areas
and 3 footing at other areas on
the main building he ran out of
money and stopped building.
He however continued in 2007 and
completed in 2007. The defendant
also called D.W.1 who claimed to
be the acting secretary of the
Kwashieman stool. This D.W.1
said he only got to know the
Plaintiff in 2007 when they were
on their usual rounds collecting
ground rents when he saw him in
a certain house. He knew the
defendant since early 1991 when
he came to the palace and
requested for a plot to build a
house. The family gave him a
plot and he knows the location.
The location of the plot is at a
place called TEBUEN. He D.W.1
had been to the plot before
because from 1972 to 2000 he
worked there as stone cracker
with his labourers.
From the pleadings and the
evidence adduced, resolution of
issues (i) and (iv) will help in
resolving the other issue.
Issue (i) is whether there was a
valid grant of the disputed land
to the plaintiff or his father
by the Kwashieman stool in or
around 1993 and issue (iv) is
whether the purported grant to
the defendant by the same
Kwashieman stool while plaintiff
was in possession is valid.
Going by the pleading alone from
which the original issues were
raised, issue (iv) should not
have been raised in the way it
is, since the defendant claimed
he had his grant in 1991. If it
is true that the defendant’s
grant was made in 1991, then the
Kwashieman stool could not have
made any valid grant to the
plaintiff in 1993. Issue (iv)
should therefore be “whether the
land in dispute was granted to
the defendant in 1991 or not”.
From the evidence adduced, both
parties relied on documentary
evidence and possession to prove
their respective titles. The
plaintiff relied on exhibit ‘A’
whilst the defendant relied on
exhibit ‘I’.
Exhibit A was executed on 28th
October 1993 and stamped in
February 1994. Exhibits B, B1
and B3 also show that exhibit A
was presented to land title
Registry on 16th
February 1994.
A critical look at exhibit I
reveals that it is not a genuine
document. On 6th
December 2007, the trial Judge
ordered the parties to exchange
all documents they intend
tendering at the trial. The
Plaintiff filed all his
documents but the defendant
filed the first page of exhibit
1 and a site plan on 11th
June 2008. Other pages of
exhibit 1 were not filed. On
the page that was filed there
was no name and date at the side
of the indenture. When exhibit
1 was formally tendered on
27-08-2008 it was discovered
that the name of Emmanuel Tetteh
and a date had been written at
the same page1, that its
photocopy had no name and date
as at 11th June 2008
when it was filed. Counsel for
Plaintiff cross examined the
defendant on it as follows:
Q. Look at exhibit I, there is a
date as 12th May 1991
A. Yes, my Lord
Q. When was that date inserted
on the document
A. By the time, I was given the
document; I received it as it
was in 1991. When this matter
came to court and I showed this
document to my lawyer, my lawyer
asked why there was no
indication on the side of the
indenture. He further asked me
that I should take this document
to my grantor to insert the date
of purchase and the date the
indenture was given to me. I
took it to the chief’s palace
and informed him that I was
granted a parcel of land by
chief Ahiaku V on the said date
and the date on exhibit I was
inserted by the current chief of
Kwashieman.
Q. When was the date inserted on
the document?
A. About two months ago…
The Site Plans attached to
exhibit 1 by cello tape looks
very fresh and is not dated even
though all site plans attached
to an indenture is to be dated.
At page 3 of exhibit 1 the date
20…….. had been typed but change
with pen to read like 1991
without any signature but the
20……… was clear.
Whilst under cross examination,
the Defendant insisted that
there has been no change in the
date.
Apart from the attempt to change
20 into 19, the oath of proof of
Emmanuel Tetteh before the
Registrar of the High Court, was
alleged to be on 12th
May 1991, but the Registrars
certificate of proof is on 20th
day of May 20…….. but use pen to
make it 1991, even though the 20
is clear.
Apart from what appears on the
face of exhibit 1, D.W.1 gave
evidence that he saw in a book
at the palace that the Defendant
went for his land in 1991, the
document was not issued in the
same year; but could not tell
which year the defendant’s
documents was prepared.
Other evidence by the defendant
that discredited exhibit I is as
follows:
“…. After paying for the land
documents on 12th May
1991, I went to the chief and he
brought an indenture, signed it
and demanded the balance of
GH¢20.00. I did not have the
GH¢20.00 on me. On 15th
May 1991, I went to pay the
balance and took the land
document here and want to tender
it in evidence …”
If exhibit I was signed by the
chief on 12th May
1991 but was given to the
defendant on 15th May
1991, then the same document
could not have been taken to the
Registrar of the High Court,
Accra on 12th May
1991 since the defendant had
then not executed it because it
had not been given to him.
Again, the defendant in
explaining how the date at page
1 came to be written, he said
his lawyer asked him to take the
indenture to the chief to insert
the date the indenture was
prepared and the date it was
given to him.
The above findings with regard
to exhibit I, convince me that
it was fraudulently procured.
It was to hide these anomalies
on exhibit 1 from the court that
is why only page 1 was filed
when the Defendant filed his
documents to be relied on at the
trial on 11th June
2008.
I am mindful of the fact that
for fraud to succeed, one must
plead it and give its
particulars. In this case, the
plaintiff could not plead fraud
in his reply because exhibit 1
had then not been tendered. The
plaintiff, however, pleaded in
paragraph 2 of the reply filed
on 21-11-07 as follows:
“The plaintiff says that the
averments contained in
paragraphs 3 up to and including
paragraph 7 of the statement of
defence could not have been
pleaded in good faith and are
entirely false and are denied.”
Paragraph 3 to 7 of the
defendant’s statement of defence
are the paragraphs that
indicated that the defendant had
the land in dispute in May 1991
and carried on development
without any let or hindrance.
Again, paragraph 4 of the
plaintiff’s reply also suggested
to the defendant that the
plaintiff is of the view that no
grant had been made to the
defendant and even if made will
not be in 1991.
These parts of the pleadings and
the evidence adduced convince me
that exhibit I is tainted by
fraud, is a nullity and
incapable of passing title even
if it had been Registered under
the land title Registration
Law. I am strengthened in this
view by the case of APEAH and
another Vrs. ASAMOAH (2003-04)
SCGR 226 which held in its
holding 4 that “Fraud would
vitiate everything: and
ordinarily fraud should be
pleaded. It had not been
pleaded in the instant case.
Notwithstanding the rules on
pleadings, the law was that
where there was clear evidence
of fraud on the face of the
record, the court could not
ignore it”.
Defence counsel argued that the
Defendant called D.W.1 to
support him but the plaintiff
did not call anybody except
P.W.2 who is not from the family
and therefore the evidence of
the defendant on the grant must
be accepted.
With respect to defence counsel
D.W.1 Nii Yartey Tetteh cannot
be believed.
D.W.1 said in his evidence in
chief that he had known the
defendant in 1991, when he came
to the palace and requested for
a plot to build a house.
Under cross- examination, he
admitted that he became acting
secretary about 4 years ago but
cannot recall the exact date. He
also admitted that he is not a
member of the family and that in
1991; he held no position in the
family. He also said he does not
sign indenture or document on
land but deal with incoming and
outgoing letters. Finally D.W.1
said he only saw the defendants’
indenture in 2008 but there was
a committee that took it and he
did nothing about it.
Had it not been for the evidence
from cross- examination D.W.1
would have succeeded in creating
the impression that the
defendant went to the family
including him, in 1991 for his
land, when in truth D.W.1 is not
a member of the family and held
no position in it as at that
time. Even if it is true that
D.W.1 had seen Exhibit 1, it was
in 2008 when the defendant went
to the elders for assistance.
I therefore hold that exhibit I
was fraudulently procured and is
therefore not capable of passing
any title and that a valid grant
was made by the Kwashieman stool
to P.W.1’s children.
The next issue to be resolved is
whether any structures built on
the disputed land after the
commencement of this suit is
protected.
The plaintiff pleaded that it
was only in 2007 that the
defendant entered the land and
started building. P.W.1 gave
evidence that at the time that
he bought the land in 1993,
there was nothing on the land
except a big hole; and that the
defendant entered the land in
2007. P.W.2 also gave evidence
that it was in 2007 that the
defendant was seen building on
the land. Before then there was
a fence wall and somebody was
farming on it with P.W.1
consent.
The defendant on the other hand
said he started building on the
land in 1991 but abandoned it
and came back in 2007. Whilst
under cross examination, the
defendant said he was not paying
ground rent because he was not
on the land even though he knew
receipts are issued to those who
pay it. D.W.1 also said he knew
the land in issue because he
worked on the plot from 1972 to
2000 as a stone cracker with his
labourers. D.W.1 also said he
got to know the defendant only
about 4 years ago and denied
that he had said he followed the
surveyor when the land was
demarcated to the defendant.
If as late as 2000, D.W.1 was
cracking stones with his workers
on the plot but never knew the
defendant except only 4 years
ago, then the defendants’
evidence that he had commenced
building on the land in 1991
cannot be true. It also meant
the defendant was then not in
possession of the land.
The defendant admitted that he
did not take a permit before he
commenced the building and no
development permit or a building
permit has been tendered. I
therefore hold that the
defendant started his building
on the land in 2007 but not in
1991. It was this that compelled
the plaintiff to commence this
action. With this holding,
defence counsel’s argument that
the plaintiff is estopped by
laches since he came by the land
in 1991 cannot hold.
It must also be noted that the
defendant did not plead this
defence in his pleading and is
therefore estopped from arguing
it. In the case of Dolphine
(NO3) VRS Speedline Stevedoring
Company Ltd (1996-97) SCGLR 514,
it was held that since the
limitation Decree N.R.C.D 54 was
not pleaded, it could not be
adverted to in submissions to
the court.
For these reasons, I hold that a
valid grant was made by the
Kwashieman stool to P.W.1 in the
name of his children in 1993 at
a time that no grant had been
made to the defendant. In Amuzu
vrs Oklikah (1998-99) SCGLR 14,
the Supreme Court held that
equity follows the law but
equity would not permit an act
to be used as an instrument of
fraud. Any conduct that borders
on fraudulent behaviour should
be frowned upon.
Having found that exhibit 1 is
tainted with fraud and that the
defendant did not enter the land
in 1991 but in 2007, his
occupation of the land cannot be
protected under Act 2 since in
2007, when he entered the land,
there was a fence wall around
the land. The plaintiff had also
presented his title deeds to the
Land Registry as far back as
1994. An injunction order had
also been served on the
defendants but he ignored it and
continued to build.
I therefore enter Judgement for
the plaintiff as follows:
a)
Declaration of title to the land
as described in the writ of
summons
b)
Recovery of possession of the
said land
c)
An order of perpetual injunction
restraining the defendant, his
agents, servants, e.t.c from the
land described in the writ.
d)
The plaintiff is at liberty to
demolish all structures on the
land if he so wishes and if he
does, should claim the cost
involved from the defendant.
e)
Nominal damages of GH¢5,000.00
for the destruction of the
plaintiff’s fence wall and for
trespass to the land.
There plaintiff is awarded cost
of GH¢2,000.00.
Counsel: Mr.
David Ametepe for Plaintiff
Mr. Vicent Garr for
Defendant
(SGD) MR.S. H. OCRAN J.
JUSTICE OF THE HIGH
COURT
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