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CORAM
GBADEGBE, JSC
(PRESIDING) BENIN, JSC APPAU,
JSC PWAMANG, JSC KOTEY, JSC
Land -
Declaration of title - Judgment
- Setting aside – Fraud -
Cancellation Land Title
Certificate – Perpetual
injunction – Counterclaim -
Recovery of possession –
Practice and Procedure -
Estoppel by acquiescence -
statute of limitation - Stranger
to a judgment - Whether or not
failure to obtain the consent of
the defendant to the said
proceeding before issuing the
writ of summons herein deprived
them of any cause of action
flowing from the judgment -
Whether or not a stranger to a
judgment who is adversely or
injuriously affected can set it
aside. section 2 (4) of the
Courts Act, 1993, (Act 459) -
section 43(1) of the Land Title
Registration Law, PNDC L 152 of
1996
HEADNOTES
The
plaintiffs, a husband and wife
alleged that they had acquired
the disputed property by
purchase from one Kofi Boateng.
The purchase was done through
the mother of the 1st plaintiff
while the purchasers were said
to be resident outside the
country. The plaintiffs, a
husband and wife alleged that
they had acquired the disputed
property by purchase from one
Kofi Boateng. The purchase was
done in or about 2001 through
the mother of the 1st plaintiff
while the purchasers were said
to be resident outside the
country. and they moved into
occupation. Sometime in 2007,
while in occupation of the
property, the plaintiffs were
served with a court process
indicating that the defendant
herein had obtained a prior
judgment against, a person known
as Edith Nyarko in respect of
the same land The plaintiffs who
denied knowledge of the said
Edith Nyarko informed the
defendant herein who apparently
was in the company of the
process server that they had
lawfully acquired the disputed
property from the owners. In the
face of the conflicting claim to
the land by the defendants,
which was acknowledged in the
judgment sought to be enforced
against them, the plaintiffs
caused their proceedings herein
to issue before the High Court,
Accra The plaintiffs' action
suffered a dismissal both in the
trial court and the intermediate
appellate court
HELD
We are of the
view that the reasons provided
by the learned justices are
amply supported by the evidence
on record and add that in the
face of the posting of court
processes on the land, the
plaintiffs acted rashly to their
own detriment when they
continued with the construction
works without giving any thought
to the pending matter. That
conduct is clearly wrong and we
do not think that any court
applying equitable principles
should enable the wrongdoers to
benefit from their own wrong as
their hands are infected with
iniquity. Perhaps, the
plaintiffs labored under the
erroneous impression that once
the building works are
completed, they might receive a
favorable hearing that such
possession is deserving of
protection but unfortunately
that is something that on the
facts of this case no court of
conscience will do in their
favor. The conduct of the
plaintiffs, in our view was
fraudulent and intended to
overreach the defendant and
accordingly cannot be the
foundation of any order; for
yielding to such a contention
has the effect of allowing
dishonorable conduct to prevail
over societal expectations of
the law representing the
conscience of society in terms
of that which is good and devoid
of unworthy conduct. For these
reasons, the instant appeal
fails and is dismissed. We
proceed to affirm the decision
of the Court of Appeal. The
result is that the plaintiffs'
claim as endorsed on the writ of
summons is dismissed and
judgment entered in favor of the
defendant on his counterclaim as
allowed by the trial High Court.
STATUTES
REFERRED TO IN JUDGMENT
Courts Act,
1993, (Act 459)
Land Title
Registration Law, 1996 PNDC L
152
CASES
REFERRED TO IN JUDGMENT
Gbagbo v
Owusu [ 1972] 2 GLR, 250.
Gregory v
Tandoh IV and Hanson [2010]
SCGLR 971, 975
Achoro and
Another [1996-97] SCGLR 209,
214,
Fynn v Fynn
and Osei [2013] 1 SCGLR 727,
Bisi v Tabiri
alias Asare [1987-88] 1 GLR 360,
BOOKS
REFERRED TO IN JUDGMENT
DELIVERING
THE LEADING JUDGMENT
GBADEGBE:
COUNSEL
S.K. AMOAH
FOR THE
PLAINTIFFS/APPELLANTS/APPELLANTS.
AUGUSTINA
TETE DONKOR FOR THE DEFENDANT/
RESPONDENT/ RESPONDENT.
JUDGMENT
THE UNANIMOUS
JUDGMENT OF
THE COURT IS READ BY GBADEGBE
JSC, AS FOLLOWS-:
GBADEGBE:JSC
In this
appeal, for reasons of
convenience, the parties will be
referred to simply as plaintiffs
and defendant. The circumstances
in which the action herein
arises may be stated shortly as
follows. The plaintiffs issued
the proceedings herein against
the defendant seeking an order
setting aside a prior judgment
of the High Court, Accra in Suit
Number L/187/2003 dated November
23, 2005 on the ground of fraud.
Also claimed as reliefs in the
action are an order for the
cancellation of a Land Title
Certificate No GA 10930, and an
order of perpetual injunction.
Upon service of the proceedings
herein on the defendant, he
submitted himself
unconditionally to the
jurisdiction of the trial High
Court and filed a defence to the
action and counterclaimed among
others for a declaration that
the judgment dated 23rd
November, 2005 entered in favour
of the defendants herein in Suit
L/187/2003 is valid and binding
on the Plaintiffs. The said
claim was expressed to be in the
alternative to a declaration of
title to the property in respect
of which the previous judgment
and the present action related
to. The previous judgment, on
which the proceedings herein
turn is entitled: Joseph Amenyah
v Edith Nyarko.
The
plaintiffs, a husband and wife
alleged that they had acquired
the disputed property by
purchase from one Kofi Boateng.
The purchase was done in or
about 2001 through the mother of
the 1st plaintiff while the
purchasers were said to be
resident outside the country.
Sometime after acquiring the
disputed property, they caused
the 1st plaintiff's mother to
put up a residential dwelling
for them. After the said
building was completed around
2005, they caused utilities to
be provided therein and they
moved into occupation. Sometime
in 2007, while in occupation of
the property, the plaintiffs
were served with a court process
indicating that the defendant
herein had obtained a prior
judgment against, a person known
as Edith Nyarko in respect of
the same land. The plaintiffs
who denied knowledge of the said
Edith Nyarko informed the
defendant herein who apparently
was in the company of the
process server that they had
lawfully acquired the disputed
property from the owners. In the
face of the conflicting claim to
the land by the defendants,
which was acknowledged in the
judgment sought to be enforced
against them, the plaintiffs
caused their proceedings herein
to issue before the High Court,
Accra seeking the reliefs herein
before mentioned.
In his
defence to the action, the
defendant also alleged a
purchase of the disputed
property around 1995 from a
source other than that asserted
by the plaintiffs. Further to
this he alleged that after
acquiring the disputed property,
he caused sand and stones to be
deposited thereon and put up a
fence wall to protect the land.
Later, he was informed of acts
of encroachment on the property
by a person whose name was
indicated as Edith Nyarko. The
said person, it was alleged was
engaged in the construction of a
building on the land.
Accordingly, he caused
proceedings to be instituted
against the encroacher resulting
in the judgment, the subject
matter of the plaintiffs'
action. According to him, as the
said encroacher could not be
personally served, processes by
way of substituted service were
affected on the land before the
matter was tried. The defendant
also said that before he
purchased the land, he had seen
a land title certificate in the
name of his grantor who was
described as the registered
proprietor of interests to the
disputed property from whom he
obtained a conveyance to the
disputed land. Based on these
facts, the defendant lodged a
counterclaim to the disputed
property.
The
plaintiffs' action suffered a
dismissal both in the trial
court and the intermediate
appellate court. Both lower
courts upheld the defendant's
counterclaim for declaration of
title together with the
ancillary reliefs of recovery of
possession and perpetual
injunction. The plaintiffs,
claiming to be dissatisfied with
the judgment of the CA have
appealed to us seeking an order
of reversal of the decision in
their favor. The appeal before
us having been heard subsequent
to the submission of written
briefs by the parties, we now
proceed to deliver our decision
in the matter.
One
significant matter emerging from
the record of appeal before us
is that both the trial court and
the CA made a determination at
pages 262 and 409 respectively
of the record of appeal that
the plaintiffs were not parties
(or privies) to the previous
action whose judgment they seek
to annul. In view of this
determination, their failure to
obtain the consent of the
defendant to the said proceeding
before issuing the writ of
summons herein deprived them of
any cause of action flowing from
the judgment. Consequently, as
strangers to the previous
action, the instant proceedings
by which they seek among others
an order annulling the previous
judgment was improperly
constituted. We find it quite
puzzling that both the learned
trial judge and the learned
justices of the CA did not
advert their minds to the
obvious lapse in the
proceedings. Indeed, having
reached the same view of the
matter as the trial court, the
learned justices of the CA
should have proceeded to strike
out relief (1) by which an order
was sought to set aside the
previous judgment as it was
improperly constituted. As the
proceedings herein are in the
nature of a re-hearing in which
we have all the powers of the
trial court, we are of the
opinion that based on the
determination that the
plaintiffs lacked capacity to
seek a relief related to the
prior judgment entitled Joseph
Amenyah v Edith Nyarko, it is
right that we pause with a
consideration of the issues
raised by the appeal to correct
an obvious slip in the
proceedings. In our opinion, in
so acting, we are only applying
the extensive power vested in us
under section 2 (4) of the
Courts Act, 1993, (Act 459) to
make any order that ought to be
made. The said section
provides:
"For the
purposes of hearing and
determining a matter within its
jurisdiction and the amendment,
execution or the enforcement of
a judgment or order made on any
matter, and for the purposes of
any other authority, expressly
or by necessary implication
given to the Supreme Court by
the Constitution or any other
law, the Supreme Court shall
have all the powers, authority
and jurisdiction vested in any
court established by the
Constitution or any other law."
In reaching
the view that relief (1)
contained in the writ of summons
is improperly constituted, we
were guided by the settled
practice of courts where a
person other than a party to an
action seeks to intervene in an
action as was decided in the
case of Gbagbo v Owusu [ 1972] 2
GLR, 250. In his judgment in the
said case, Abban J (as he then
was) at page 253 thereof set out
the applicable procedure and
practice to be employed by third
parties (strangers or
interveners) who have been
adversely affected by judgments
as follows:
"It is well
established that there are only
two methods whereby a stranger
to a judgment who is adversely
or injuriously affected can set
it aside. That is, he can obtain
the defendant's leave to use the
defendant's name and then apply
in the defendant's said name to
have the judgment set aside. Or
where he cannot use the name of
the defendant, he can take out a
summons in his own name to be
served on both the plaintiff and
the defendant, asking to have
the judgment set aside and for
him to intervene..."
Having struck
out relief (1), we proceed to
consider the other claims which
were properly before the court.
We commence from the premise
that as the two lower courts
dismissed the plaintiff's claims
and upheld that of the
defendant, to succeed, the
plaintiff must demonstrate that
the said decisions particularly
that of the CA was rooted in
perversion such as to be an
instance of miscarriage of
justice. The attack on the
judgment of the CA by resort to
the omnibus ground that: " The
judgment is against the weight
of the evidence" is in our
view, devoid of any merit as
the learned justices carefully
considered the various grounds
of appeal which concerned the
factual determination before
proceeding to dismiss the appeal
before them. In our opinion,
the decision reached by the
learned justices of the CA are
amply supported by the evidence
and it would be an exercise in
indiscretion if we were to
reconsider the various grounds
of appeal and reach our own view
of the facts; that is something
which we cannot do in the
absence of a clear demonstration
that the findings of fact were
wrong. Indeed, in the case of
Gregory v Tandoh IV and Hanson
[2010] SCGLR 971, 975 Dotse JSC
reiterating the settled practice
of appellate courts regarding
concurrent findings observed in
a manner that is very relevant
to the matter herein as follows:
"We have
noted that the Court of Appeal
in its judgment concurred in the
findings of fact made by the
learned trial judge. There is
this general principle of law
which has been stated and
re-stated in several decisions
of this court, namely; that
where findings of fact ( such as
in the instant case), have been
made by a trial court and
concurred in by the first
appellate court, in this case,
the Court of Appeal, then the
second appellate court ( such as
this Supreme Court) must be
slow in coming to different
conclusions unless it is
satisfied that there are strong
pieces of evidence on record of
appeal which make it manifestly
clear that the findings of the
trial court and the first
appellate court are perverse."
The
plaintiffs in their submissions
before us have failed to
demonstrate that any of the
findings made by the two lower
courts suffers from error such
as being contrary to documentary
evidence placed before it or
that a principle of law has been
applied in error which when
corrected has the effect of
dissolving and or undermining
the findings on which the
concurrent findings are
anchored. Further, there has not
been any showing by the
plaintiffs that vital pieces of
evidence were glossed over or
misread by the two lower courts
or that there was no evidence to
sustain the findings. As has
been emphasised of the appellate
function, the mere fact that we
might take a different view of
the facts is not sufficient to
derogate from the effect of the
concurrent findings warranting
our interference. The burden
that any appellant who seeks
to have such concurrent findings
overturned assumes is to
demonstrate from the evidence
contained in the record of
appeal that the findings are not
supported by the evidence or
that any court composed of
reasonable persons would not
have reached the conclusion
arrived at by the two lower
courts; the requirement of
perversion is to satisfy the
appellate court that clearly the
decision on the contested
facts is wrong and that the
other version of the matter is
preferable. In our opinion, the
restraint that this court as the
final appellate court is
required to exercise regarding
concurrent findings is not
displaced by an allegation that
"The judgment is against the
weight of the evidence''; to
succeed one must raise specific
grounds of error in the process
of evaluation preceding the
making of the findings.
We think
that the time has come for us as
part of our responsibility in
decongesting the court to
develop a mechanism that will
truly bear out the rule of
wisdom in judicial proceedings
regarding the approach to
concurrent findings by for
example, requiring appellants to
demonstrate clearly by reference
to specific instances of error
and or blunder inherent in the
findings under attack before us
both in the grounds of appeal
and statement of case. We do not
think that the present practice
of attacking such grounds under
the omnibus ground is
satisfactory as any party who
appeals from concurrent findings
to this court must appreciate
that the burden which he assumes
is not a very light one. In the
celebrated case of Achoro and
Another [1996-97] SCGLR 209,
214, the court specified what
would suffice for it to
interfere namely:
"It was well
established with absolute
clearness that some blunder or
error resulting in a miscarriage
of justice resulting in a
miscarriage of justice, apparent
in the way in which the lower
tribunals dealt with the facts.
It must be established, e.g.,
that the lower courts had
clearly erred in the face of a
crucial documentary evidence, or
that the principle of evidence
had not been properly applied;
or that the finding was so based
on erroneous proposition of law
that if the proposition be
corrected, the finding w will
disappear……. It must be
demonstrated that the judgments
of the courts below were clearly
wrong."
The same
position was emphasised by Wood
CJ in the case of Fynn v Fynn
and Osei [2013] 1 SCGLR 727,
732-734. Earlier on, in the case
of Bisi v Tabiri alias Asare
[1987-88] 1 GLR 360, 368,
Osei-Hwere JSC observed of the
appellate function thus:
"I cannot
believe that it was ever
intended that the Court of
Appeal (for that matter any
appellate court) should move
into a new era of regular
questioning of decisions of
trial judges on issues of fact,
as distinct from law, which are
supportable."
Since we
have expressed our agreement
with the concurrent findings of
fact, we do not think that it is
necessary to delve into the
reasons. In the circumstances,
we turn our attention to the
plaintiff's attack on the
counterclaim decreed in favor of
the defendant and argued as
ground (1) of the notice of
appeal, which raises a purely
legal question for our
consideration. The said ground
of appeal was formulated thus:
"The Court of
Appeal erred by upholding the
Defendant/Respondent's title to
the land by virtue of his Land
Certificate."
In respect
of this ground, we wish to say
that we find it incomprehensible
that the plaintiffs placed great
reliance on the argument that as
title to the land is in the
Government of Ghana, the failure
by the defendant to take his
grant from the owner was
decisive of his claim of title
to the land. In our view, this
is a significant departure from
the case pleaded at the Bar and
quite frankly, a concession that
their case had crumbled as they
sought vainly to plank their
case on a new foundation, which
unfortunately may be likened to
placing something on nothing. It
is trite law as the learned
justices of the CA held that as
the owner of a land title
certificate to the land, the
defendant had an indefeasible
title to the disputed land and
in the absence of proof of any
vitiating circumstances such as
fraud and or mistake, the
registered proprietor, the
defendant herein was entitled to
be adjudged as the owner of the
area comprised in the land title
certificate. This is a
consequence of the registration
as provided in section 43(1) of
the Land Title Registration Law,
PNDC L 152 of 1996 in the
following words:
"Subject to
subsections (2), (3) and (4) of
this section, and section 48 of
this Law, the rights of a
registered proprietor of land
whether acquired on first
registration or by the order of
the Court, shall be indefensible
and shall be held together with
all privileges and appurtenances
attaching thereto free from all
other interests and claims
whatsoever."
Having been
declared the registered
proprietor, the defendant was
entitled to the ancillary orders
of recovery of possession and
perpetual injunction contained
in his counterclaim. The
plaintiffs, in our view made a
feeble challenge to the
ancillary orders when they
sought to rely on the fact that
they had completed a building on
the disputed land and as such
are in effective possession.
The submissions related to their
possession is contained in their
statement of case and
extensively discussed under the
sub-heading "POSSESSION BY THE
APPELLANTS" to which we next
direct our attention to as
follows.
We are of the
opinion that as the plaintiffs
did not raise any issue either
on the pleadings or in the
appeal herein on the question of
estoppel by acquiescence or
statute of limitation or both,
their submissions related to the
said possession is an unusual
practice which must be
deprecated by the court. In
support of the said sub-heading,
the plaintiffs, sought to rely
on the fact that they are
possessed of the building whose
construction was resisted by the
defendants by the issue of the
previous action against Edith
Nyarko and as such they can only
be deprived of such possession
by the true owner namely the
Government of Ghana. That
contention, in our view seeks to
deprive the holder of a Land
Title Certificate of the rights
conferred on him under section
43 (1) of PNDCL 152 and finds no
favor with us. Indeed, having
regard to the declaration of
ownership in the defendant, he
is in the eyes of the law the
true owner and accordingly the
plaintiffs must yield their
unlawful possession of the land
in his favor. We think that the
learned justices of the Court of
Appeal were quite magnanimous
when they expended time in their
judgment at pages 415-416 in
considering the effect of the
said submissions before reaching
what we consider to be the right
conclusion that the plaintiffs
claim should fail. By so doing,
the learned justices preferred
the defendant's version of the
facts which was to the effect
that the said possession was
with full knowledge of the claim
of the defendant that was
accompanied promptly by the
issue of a writ of summons and
the service of processes on the
land on which the building was
being constructed by the
plaintiffs.
We are of
the view that the reasons
provided by the learned justices
are amply supported by the
evidence on record and add that
in the face of the posting of
court processes on the land, the
plaintiffs acted rashly to their
own detriment when they
continued with the construction
works without giving any thought
to the pending matter. That
conduct is clearly wrong and we
do not think that any court
applying equitable principles
should enable the wrongdoers to
benefit from their own wrong as
their hands are infected with
iniquity. Perhaps, the
plaintiffs labored under the
erroneous impression that once
the building works are
completed, they might receive a
favorable hearing that such
possession is deserving of
protection but unfortunately
that is something that on the
facts of this case no court of
conscience will do in their
favor. The conduct of the
plaintiffs, in our view was
fraudulent and intended to
overreach the defendant and
accordingly cannot be the
foundation of any order; for
yielding to such a contention
has the effect of allowing
dishonorable conduct to prevail
over societal expectations of
the law representing the
conscience of society in terms
of that which is good and devoid
of unworthy conduct.
For these
reasons, the instant appeal
fails and is dismissed. We
proceed to affirm the decision
of the Court of Appeal. The
result is that the plaintiffs'
claim as endorsed on the writ of
summons is dismissed and
judgment entered in favor of the
defendant on his counterclaim as
allowed by the trial High Court.
SGD
N.S.GBADEGBE
(JUSTICE OF THE SUPREME COURT)
SGD A.A. BENIN
(JUSTICE OF THE SUPREME COURT)
SGD
Y. APPAU
(JUSTICE OF THE SUPREME COURT)
SGD G. PWAMANG
(JUSTICE OF THE
SUPREME COURT)
SGD PROF. N.A. KOTEY
(JUSTICE OF THE SUPREME COURT)
COUNSEL
S.K. AMOAH
FOR THE
PLAINTIFFS/APPELLANTS/APPELLANTS.
AUGUSTINA
TETE DONKOR FOR THE
DEFENDANT/RESPONDENT/RESPONDENT.
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