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Land - Declaration of title - Damages for trespass - Section 26 of the Evidence Act NRCD 323 of 1975
- Whether
land in dispute was conveyed by
a deed and registered at the
Deeds Registry from occupant of
the Mankralo stool - Whether or
not - Whether
appellant’s grantor did not own
the land in dispute he had no
title to convey - whether the
alleged grant to the appellant
was void for want of title..
HEADNOTES
The Appellant in her statement of claim had pleaded that the land in
dispute was conveyed by a deed
dated 24/11/1959 and same
registered at the Deeds Registry
as No. 1335/1960from one Nii
Okang Nmashie III, the Mankralo
of Teshie and occupant of the
Mankralo stool at the time, with
the consent and knowledge of the
principal elders and councilors
of the said stool in accordance
with the customary law. The
Respondent was at the time
material to the commencement of
this action the head of the
Kle-Musum Quarter and the Tsei
We family of Teshie. He claimed
that the land in dispute falls
within Kle-Musum Quarter lands
as contained in a Statutory
Declaration dated 25/07/1965 and
registered as L.R 1332/1965 and
that by virtue of the fact that
the appellant’s grantor did not
own the land in dispute he had
no title to convey and
consequently the alleged grant
to the predecessor of the
appellant was void for want of
title. The Respondent in
resisting the claim of the
appellant, contended that his
family has been in undisturbed
possession of their lands
including the one in dispute
since the original settlement
dating back in the 16th Century
-
HELD
After careful perusal of the
evidence on record, there is no
evidence to support the plea
which counsel wanted to
introduce into this appeal when
it was never raised at the two
lower courts. On the whole, we
find no merits in this appeal as
the Court of Appeal adequately
resolved all the issues in
accordance with the law. We
therefore proceed to dismiss
same, and it is accordingly
dismissed.
STATUTES REFERRED TO IN JUDGMENT
Evidence Act, NRCD 323 of
1975
CASES REFERRED TO IN JUDGMENT
Duodu v Benewah [2012] 2
SCGLR 1306
T.K. Serbeh & Co. V.
Mensah [2005 – 2006] SCGLR 341
In re Suhyen Stool; Wiredu
V. Agyei [2005-2006] SCGLR 424
Akoto v Kavege [1984-86]
CA 2 GLR 365
Mondial Veneer (Gh) Ltd V.
Amuah Guedu XV [2011] 1 SCGLR
466.
Penkro V. Kumnipa
[1987-88] 1 Glr 558
Juxton-Smith v KLM Dutch
Airlines [2005-2006] SC 438,
Kwantreng v. Amassah & ORS
[1962] 1GLR 241 SC
Stool of Abinabina V. Enyimadu
[1953] 12 WACA 171.
Akoto v Kavege [1984-86]
CA 2 GLR 365
Hydrofoam Estates (GH) Ltd
v. Owusu [2013-14] 2 GLR 1117
BOOKS REFERRED TO IN JUDGMENT
DELIVERING THE LEADING JUDGMENT
YEBOAH, JSC:-
COUNSEL
THADDEUS SORY FOR THE
PLAINTIFF/RESPONDENT/APPELLANT.
KWAME FOSU-GYEABOUR FOR THE
DEFENDANT/APPELLANT/RESPONDENT.
JUDGMENT
YEBOAH,
JSC:-
The
Plaintiff/Respondent/Appellant
herein (who shall be simply be
referred to as the Appellant)
commenced an action at the High
Court, Accra for a declaration
of title to a piece or parcel of
land at Baatsonaa Station, North
of Teshie and other ancillary
reliefs against the
Defendant/Appellant/Respondent
herein (who shall for sake of
brevity be referred to as the
Respondent) in this appeal.
The facts of this case appeared
not to be seriously controverted
at the trial court and at the
Court of Appeal. The suit was
originally instituted by the
Appellant per her lawful
attorneys Sampson Okai Adjetey
and John Allen, against the
Respondent herein and one other
in the person of Nii Nortey
Adjeifio as the second defendant
but before the case could
proceed to trial, the trial
court on 10/03/2005 struck off
the said Nii Nortey Adjeifio
with the consent of counsel for
the parties. The case thus
proceeded for trial on the same
day between the two parties
herein.
The Appellant in her statement
of claim had pleaded that the
land in dispute was conveyed by
a deed dated 24/11/1959 and same
registered at the Deeds Registry
as No. 1335/1960 from one Nii
Okang Nmashie III, the Mankralo
of Teshie and occupant of
the Mankralo stool at the time,
with the consent and knowledge
of the principal elders and
councilors of the said stool in
accordance with the customary
law, to one Sardis Noah Adjetey
and his heirs and personal
representatives. According to
the Appellant, after the grant
the grantees enjoyed peaceful
possession of the land free from
all encumbrances. It was averred
in the Statement of Claim that
prior to the Conveyance by the
Mankralo, the stool had control
over the land in dispute and had
the authority to convey the land
to the said Sardis Noah Adjetey.
The Respondent was at the time
material to the commencement of
this action the head of the
Kle-Musum Quarter and the Tsei
We family of Teshie. He claimed
that the land in dispute falls
within Kle-Musum Quarter lands
as contained in a Statutory
Declaration dated 25/07/1965 and
registered as L.R 1332/1965 and
that by virtue of the fact that
the appellant’s grantor did not
own the land in dispute he had
no title to convey and
consequently the alleged grant
to the predecessor of the
appellant was void for want of
title.
It was further averred by the
Respondent that the land in
dispute was also outside the
Krobo Quarter land. The
Respondent in resisting the
claim of the appellant,
contended that his family has
been in undisturbed possession
of their lands including the one
in dispute since the original
settlement dating back in the 16th
Century. He therefore
proceeded to lodge a
counterclaim for a declaration
of title to the land in dispute,
damages for trespass and for an
order to annul the grant
allegedly made to the
appellant’s predecessor and
perpetual injunction restraining
the appellant and her privies,
etc from entering the land in
dispute.
The learned trial judge at the
High Court, Accra entered
judgment against the Respondent
who appealed to the Court of
Appeal for reversal of the trial
judge’s judgment. The Court of
Appeal on 12/3/2015 reversed the
judgment, and granted the
Respondent’s Counterclaim after
evaluating the evidence and
dismissing the claim of the
Appellant. The Appellant has
lodged this appeal before this
Court, seeking the reversal of
the judgment of the Court of
Appeal. Before this Court, the
Appellant has filed several
grounds of appeal stated in the
notice of appeal thus:
i.
The Court of Appeal did
not properly evaluate the
evidence on record regarding the
rights of a party like
Plaintiff/Respondent/Appellant
who took interest in the land
the subject matter of the suit
from the Mankralo of Teshie
instead of the Kle-Musum Quarter
prior to the year 1962.
ii.
The Court of Appeal erred
when it failed to consider the
issue of estoppel which was
evident at the trial in relation
to
Defendant/Appellant/Respondent’s
Counterclaim.
iii.
The Court of Appeal erred
when it failed to consider the
issue of Bona fide purchaser of
land without notice which was
evident from the record of
proceedings and evidence adduced
at the trial in relation to
Defendant/ Appellant/
Respondent’s Counterclaim.
iv.
The judgment of the Court
of Appeal is against the weight
of the evidence adduced before
the High Court.
On ground one, the complaint of
counsel for the appellant, with
due respect, did not take into
consideration the fact that both
parties agree that, the land in
dispute falls within the
Kle-Musum Quarter lands. Indeed,
the only point of divergence is
that the Appellant only admits
that it became part of the
Kle-Musum Quarter after 1965 and
that any land alienated before
the declaration as regards the
land of Kle-Musum in 1965 was
not part of their land. The
Court of Appeal as an appellate
court with jurisdiction by way
of rehearing subjected the mass
of documentary evidence to
scrutiny and evaluated the oral
evidence, judgments of the
Superior Courts of Judicature,
etc and arrived at its
conclusion. The learned Justices
of the Court of Appeal placed
reliance on Exhibit 6, a land
suit instituted as Adjei
Kwanko II v Ibrahim Mensah
Kometeh unreported
judgment of Omari-Sasu J (as he
then was) in suit no. 1993/8 to
determine the right person to
alienate Teshie lands which also
relied on the case of Mensah
v Ghana Commercial Bank a
judgment of Ollenu J (as he then
was) dated 2/02/1962 to hold
that long before 1962 Teshie
lands could only be alienated by
the heads of the quarters. The
Court per Maful-Sau JA delivered
as follows:
“…from the above decision (re
Mensah V Ghana Commercial Bank
as per Ollenu J) it is clear
that even as at 1957, lands at
Teshie were alienated by the
head of respective quarter which
owned the land and that the
stool could not execute any
conveyance concerning quarter
land without reference to the
respective quarter. This is for
me an authoritative evidence to
the effect that heads of the
quarter in Teshie had the vested
right to alienate their lands
long before 1962 as claimed by
the respondent relying on
Exhibit B which was executed by
the Mankralo in 1959. The fact
as stated by Ollenu J. was that
even as at 1957 the head of the
quarters in Teshie were
alienating lands in their area
of authority.”
The Court of Appeal went further
to rely on Exhibit 7 which was
tendered as an archival record
covering the case of Numo
Adjei Komey v Numo Adjei Onanka,
a judgment of Accra High Court
dated 2/02/1962 Land Appeal No.
69/61 to hold that oral evidence
aside, Superior Courts of
judicature have found as a fact
that before the alleged grant to
the Appellant, Teshie lands
could only be alienated by the
Quarters. As these judicial
pronouncements stand it would be
unjust if the established custom
is reversed by this court in the
absence of any compelling
reasons canvassed before us.
This Court has not been
persuaded to change the
long-established custom as being
repugnant to natural justice and
good conscience.
It appears that the Court of
Appeal and the High Court differ
on this finding as regards the
proper person or entity to
alienate the Teshie lands. This
court as the second appellate
court having considered the two
judgments is entitled to form
its own opinion on the facts,
see Duodu v Benewah [2012] 2
SCGLR 1306. It is clear from
the record that the Court of
Appeal went very far to consider
both documentary and oral
evidence on record before
proceeding to depart from the
findings made by the trial
court. This court finds it
reasonable to support the
findings made by the Court of
Appeal and proceed to hold that
the conveyance by the Mankralo
of Teshie to the predecessor of
the appellant was void as being
contrary to the established
customary law of Teshie as it
then stood at the time of the
alienation.
The second ground upon which
learned counsel for the
Appellant argued this appeal
borders on estoppel which
according to counsel, the Court
of Appeal failed to consider
even though it was evident from
the record of proceedings and
the evidence led at the trial
court. The basis for this ground
of appeal is that paragraph 6 of
the appellant’s reply and
defence to Counterclaim had
stated thus:
6. “As to paragraph 8,9 and 10
of the defence, the Plaintiff
says that the 1st
defendant is ESTOPPED by the
judgment of the Supreme Court in
Civil Appeal No. 8/92 entitled
Nii Armah Koranteng II and 5
ors vrs Numo Adjei Nkpa Klu
(substituted by Nii Nartey
Adjeifio) delivered on the 19th
day of April, 1992 from
claiming”
From the record of proceedings
in this appeal before us, it is
clear that the learned trial
judge considered the issue of
estoppel. Counsel for the
appellant complains as per the
ground of appeal before us that
the Court of Appeal did not
consider the issue of estoppel.
It was argued at length and as a
court we owe a duty to counsel
in this final court not to leave
this point unanswered.
Learned counsel for the
Appellant in his submissions on
estoppel by placed reliance on
section 26 of the Evidence Act,
NRCD 323 of 1975 which states
thus:
Section 26 – Estoppel by
own statement or Conduct.
“Except as otherwise provided by
law, including a rule of equity,
when a party has, by his own
statement, act or omission,
intentionally and deliberately
caused or permitted another
person to believe a thing to be
true and to act upon such
belief, the truth of that thing
shall be conclusively presumed
against that party or his
successors in interest in any
proceedings between that party
or his successors in interest
and such relying person or his
successors in interest.”
Counsel for the Appellant has
submitted that in this case the
Respondent was aware or fixed
with knowledge of plaintiff’s
claim to the land but did
nothing and thereby caused the
appellant to believe for all
those years that the appellant
had good title to the land.
References were also made to the
Limitations Act, 1972, NRCD 54
to support this point raised
against the respondent.
The Court of Appeal was of the
view that the grant to the
appellant was void and no title
passed. Justice Marful Sau,
speaking for the Court said:
“From the evidence on record in
as much as the land conveyed to
the predecessor of the
respondent in Exhibit B was
within Kle-Musum land, that
conveyance was void and no title
passed to the predecessor of the
respondent. By the evidence on
record Exhibit B is therefore
void since the interest created
therein was not granted by the
lawful head of family, that is
the Kle-Musum quarter of Teshie”
It would certainly be contrary
to law for a court of law which
after evaluating the evidence
and finding a transaction to be
void in law to apply section 26
of NRCD 323 of 1975 to endorse
the transaction in the absence
of compelling evidence. Section
26 of NRCD 323 has been well
discussed by this very court in
T.K. Serbeh & Co. V. Mensah
[2005 – 2006] SCGLR 341 and
In re Suhyen Stool; Wiredu V.
Agyei [2005-2006] SCGLR 424.The
evidence in support presented by
the parties must establish
conclusively that the Respondent
did not take any action to
protect the land and caused the
appellant and the predecessors
to believe that the Mankralo of
Teshie was the proper person to
alienate the land. There was no
conclusive evidence of any
inaction on the part of the
respondent to assert title to
the land. Counsel’s further
complaint was that, the Court of
Appeal did not consider the
issue of estoppel at all.
It must, however, be made clear
that a court of law is not bound
to consider every conceivable
issue arising from the pleadings
and the evidence if in its
opinion few of the issues could
legally dispose of the case in
accordance with the law. In this
case, as said earlier, the
grantor of the appellants
predecessor had no title to pass
at all in view of the several
subsisting judgments of the
Superior Courts and Exhibit D.
It thus appeared that the issue
of estoppel was a feeble attempt
by the respondent to make a case
even when the maxim ‘nemo dat
quod non habet’ had indeed been
successfully established against
the grantor. In land suits in
which title is in issue, the
party claiming title must always
plead and prove his root of
title to enable his succeed. See
Akoto v Kavege [1984-86] CA 2
GLR 365 and Mondial
Veneer (Gh) Ltd V. Amuah Guedu
XV [2011] 1 SCGLR 466. The
Court of Appeal in reversing the
trial judge on compelling
grounds was of the opinion that
the Mankralo of Teshie was not
legally clothed with any
authority to alienate the land
to the appellant and concluded
that such grant was void. The
issue of estoppel was on record
not supportable by the evidence
led.
The remaining ground which was
also argued with much industry
was the failure of the Court of
Appeal to consider the issue of
bona fide purchaser for value of
the land in dispute in favour of
the appellant. It appears that
this is the first time that this
defense on issue is being raised
in these proceedings. This point
in my view must be answered in
detail.
Even though all appeals in this
country being first or second
appeal is by way of rehearing,
new matters not raised at the
lower court generally are not
allowed to be raised in an
appellate court for the first
time. This court in Penkro V.
Kumnipa [1987-88] 1 Glr 558,
stated per Sowah JSC (as he then
was) at page 561 that:
“Courts should not be
ready to permit unsuccessful
parties to attempt to overturn
judgment by raising new
considerations.”
In our adversarial system, the
court and the parties are bound
by the pleadings and the
influence of pleadings in civil
proceedings is asserted
throughout the trial and
appellate proceedings. Parties
cannot generally introduce new
matters on appeal even though a
point of law apparent on the
record which may not require any
fresh evidence may be allowed on
appeal save for the above,
appellate courts are very
circumspect. It is only when
from the facts on record, a
legal point could be raised for
the first time on undisputed
facts on appeal. An appellate
court will be loath to entertain
such course. See Juxton-Smith
v KLM Dutch Airlines [2005-2006]
SC 438, Kwantreng v.
Amassah & ORS [1962] 1GLR 241 SC
and Stool of Abinabina V.
Enyimadu [1953] 12 WACA 171.
In any case, the plea of bona
fide purchaser for valuable
consideration if even applicable
is a defence which calls for
supporting evidence to prove it.
In this case the Appellant as
plaintiff was pleading it as a
shield to assert title which was
obviously void by the nature of
the grant. The defence even if
pleaded should have been proved
to the satisfaction of the court
on the evidence. This Court in
the recent case of Hydrofoam
Estates (GH) Ltd v. Owusu
[2013-14] 2 GLR 1117 in
discussing this plea held as
follows:
“Where a party had put up the
plea of bona fide purchaser for
value without notice of any
adverse title, the onus would
squarely be on that party who
had pleaded the same. Since the
plea was to be considered as an
absolute, unqualified and
unanswerable defence if upheld
by a court of law, the law would
require that evidence in support
of the plea must satisfy the
court.”
After careful perusal of the
evidence on record, there is no
evidence to support the plea
which counsel wanted to
introduce into this appeal when
it was never raised at the two
lower courts. On the whole, we
find no merits in this appeal as
the Court of Appeal adequately
resolved all the issues in
accordance with the law. We
therefore proceed to dismiss
same, and it is accordingly
dismissed.
ANIN
YEBOAH
(JUSTICE OF THE
SUPREME COURT)
S. A.
B. AKUFFO (MS)
(JUSTICE OF THE
SUPREME COURT)
J.
ANSAH
(JUSTICE OF THE
SUPREME COURT)
S. O. A.
ADINYIRA (MRS)
(JUSTICE OF THE
SUPREME COURT)
V.J.
M. DOTSE
(JUSTICE OF THE
SUPREME COURT)
COUNSEL
THADDEUS
SORY FOR THE
PLAINTIFF/RESPONDENT/APPELLANT.
KWAME FOSU-GYEABOUR FOR THE
DEFENDANT/APPELLANT/RESPONDENT |
