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I
Land -
Declaration of title - Recovery
of possession - Perpetual
injunction and Damages for
trespass - Whether
non payment for the full cost of
the land to enable a written
conveyance to be made by the
vendor renders declaration of
title.void - Whether there is
want of description of the land
the plaintiff is seeking title -
Whether one can seek
title to land withouy
description .
HEADNOTES
The plaintiff’s case was that
she leased a parcel of land from
the Gbese Korle Stool in 1990,
constructed a five -bedroom
house on one part of the land
and moved in 1992. She pleaded
also that she erected a fence
wall around the whole land
comprising about four and half
plots. She later applied to the
Ga District Assembly and was
given a building permit after
paying a penalty. In 1996, the
Gbese Korle Stool gave her an
indenture evidencing the lease.
Later however, a surveyor called
Rockson, came and told her that
the land belonged to one Mr.
Nelson Cofie and when they went
to see Mr. Nelson Cofie, the
latter told her that he had
obtained judgment against all
those on the land so the said
Mr. Nelson Cofie, a lawyer, made
the husband of the plaintiff pay
the judgment debt and costs of
170, 000,00 Cedis for which a
receipt was issued. Lawyer
Nelson Cofie told them that for
building on his land without
permission he will sell the
building and the land to her for
10,000,000.00 Cedis. They
bargained and arrived at
8,000,000.00 Cedis out of which
the plaintiff paid 5,000,000.00
by instalments. The plaintiff
testified that she travelled to
Europe and on her return Mr.
Nelson Cofie told her that she
should consider the 8,000,000.00
Cedis arrived at earlier as
extinguished because she could
not produce the receipts and
demanded payment of another 10
million old Ghana Cedis for the
same parcel of land. After
bargaining they agreed on
8million Cedis out of which she
immediately paid 5 million Cedis
to Rockson. Two weeks later she
heard that Mr. Rockson was sick
and he died soon thereafter. The
plaintiff testified that she
travelled in 2002 and when she
returned she was informed that
somebody had demolished her
wall. She found out that it was
the defendant -
HELD :-
In sum, in this case the
defendant had actual notice of
the plaintiff living on the land
and never made an attempt to
consult him when Nelson Cofie
was about to or after he had
sold the land to him in 2002.
However, immediately the land
was sold to him he went about
demolishing the wall already
erected. Thus he was not a bona
fide purchaser for value and any
interest he purportedly acquired
by subsequent plotting at the
lands commission and registering
the land was void ab initio. In
conclusion, we find the decision
of the Court of Appeal
unassailable and we confirm
same. For the avoidance of
doubt, we find that the
plaintiff succeeds in his claim
and the defendants counterclaim
is dismissed.
STATUTES REFERRED TO IN JUDGMENT
High Court (Civil Procedure)
Rules 1954 (LN 140 A) and Order
II (‘8)(1) of the High Court
(Court Procedure) Rules 2004 (CI
47)
CASES REFERRED TO IN JUDGMENT
Re: Okine (Deceased) Dodoo &
Anor Vrs Okine & Ors [2003-2004]
SCGLR 582
Frabina Ltd v. Shell Ghana Ltd
[2011] 1 SCGLR
Sasu v. Amua Sakyi [2003/04]
SCGLR Vol.2, 742
NYIKPLORKPO V AGBODOTOR 1987-88
1 GLR163,
DAM v. J. K. ADDO AND BROTHERS [1962]
2 GLR 200
Drane Vrs Evangelou [1978] 2 ALL
ER 1437
AFRIYIE v. DOTWAAH AND ANOTHER [1962]
1 GLR 458
AKUFO-ADDO v. CATHELINE [1992] 1
GLR 377
Hanna Asi (No.2) v. GIHOC
Refrigeration & Household
Products Ltd (No.2) (2007-2008)
SCGLR 16.
Kotey v Korletey [2005-2006]
SCGLR 368
Tuakwa v Bosom [2001-2002] SCGLR
61,
Jass Company Ltd & Anor v. Appau
& Anor [2009] SCGLR 265
WIAFE v. KOM [1973] 1 GLR 240
TAHIRU v. MIREKU AND ANOTHER
[1989-90] 2 GLR 615,
Kingsnorth Finance Trust Co ltd
v Tizard [1986] 1 WLR 783,
Boateng v Dwinfuor [1979] GLR
360
MOASA CO v SAARA [1999-2000] 1
GLR 538
BOOKS REFERRED TO IN JUDGMENT
Megary and Wade on The law of
Real PROPERTY, 5th edition,
p.142
DELIVERING THE LEADING JUDGMENT
BAFFOE-BONNIE, JSC:-
COUNSEL.
K. ADJEI-LARTEY FOR THE
DEFENDANT/RESPONDENT/APPELLANT.
ADJABEN AKRASI FOR THE
PLAINTIFF/APPELLANT/RESPONDENT.
BAFFOE-BONNIE, JSC:-
This is an appeal against
the majority decision of the
Court of Appeal in Suit No.
H1/159/10 dated 9th
May, 2013 Coram Mariama Owusu
(Miss) Margaret Welbourne (Mrs.)
JJA and K. A. Acquaye, JA
(dissenting) pursuant to special
leave granted by Benin JSC on 1st
August, 2013.
The facts in this case are
quite simple. By an amended writ
of summons, the plaintiff/
appellant/ respondent
(hereafter, plaintiff), claimed
against the defendant/
respondent/ appellant
(hereafter, defendant), among
others, a declaration of title
to land at Dome in Accra,
recovery of possession,
perpetual injunction and damages
for trespass. The defendant,
after entering appearance, also
counterclaimed for, declaration
of title to the land in dispute,
recovery of possession,
perpetual injunction and an
order for the demolishing of the
development by the plaintiff.
The plaintiff’s case was
that she leased a parcel of land
from the Gbese Korle Stool in
1990, constructed a five
-bedroom house on one part of
the land and moved in 1992. She
pleaded also that she erected a
fence wall around the whole land
comprising about four and half
plots. She later applied to the
Ga District Assembly and was
given a building permit after
paying a penalty. In 1996, the
Gbese Korle Stool gave her an
indenture evidencing the lease.
Later however, a surveyor called
Rockson, came and told her that
the land belonged to one Mr.
Nelson Cofie and when they went
to see Mr. Nelson Cofie, the
latter told her that he had
obtained judgment against all
those on the land so the said
Mr. Nelson Cofie, a lawyer, made
the husband of the plaintiff pay
the judgment debt and costs of
170, 000,00 Cedis for which a
receipt was issued. Lawyer
Nelson Cofie told them that for
building on his land without
permission he will sell the
building and the land to her for
10,000,000.00 Cedis. They
bargained and arrived at
8,000,000.00 Cedis out of which
the plaintiff paid 5,000,000.00
by instalments. The plaintiff
testified that she travelled to
Europe and on her return Mr.
Nelson Cofie told her that she
should consider the 8,000,000.00
Cedis arrived at earlier as
extinguished because she could
not produce the receipts and
demanded payment of another 10
million old Ghana Cedis for the
same parcel of land. After
bargaining they agreed on
8million Cedis out of which she
immediately paid 5 million Cedis
to Rockson. Two weeks later she
heard that Mr. Rockson was sick
and he died soon thereafter. The
plaintiff testified that she
travelled in 2002 and when she
returned she was informed that
somebody had demolished her
wall. She found out that it was
the defendant, who lived in the
same area with her, who had
demolished the wall. The
plaintiff reported the trespass
to the local police at Kwabenya
and subsequently commenced this
instant action against the
defendant.
In the defendant’s
response to the charge of
trespass against him, he
admitted demolishing part of the
fence wall constructed by the
plaintiff. He however claimed
that he acquired the subject
matter of dispute by a deed of
gift from lawyer Nelson Cofie
dated 3/05/2002. Subsequently,
in the same pleadings he averred
that he bought the land from Mr.
Nelson Cofie who gave him a
document which he registered at
the Lands Commission. He
tendered the document in
evidence.
In the course of the
litigation, the defendant caused
further demolition of the
plaintiff’s property and began
construction of other buildings
on a part of the plaintiff’s
property. The plaintiff had to
be restrained by the High Court
from carrying out further
development of the subject
matter.
At the trial, Mr. Nelson
Cofie, who was mentioned in the
pleadings of both parties as
their grantor, gave evidence at
the behest of the plaintiff. He
told the court that he disposed
of the land he owned at Dome
including the subject matter of
this appeal because he had no
intention of developing same. He
also said that in all cases,
purchasers were led to him by a
surveyor called Rockson, now
deceased. The witness further
told the court that Rockson led
various persons to him and he
negotiated with him and they
paid him. He added that when
Rockson led people to him, he,
Mr. Nelson Cofie, did not follow
them to inspect the land
physically. He did not have time
to go to Dome to inspect the
land.
The trial judge found as a
fact that the land belonged to
Lawyer T.A. Nelson Cofie, but
observed that the receipts
tendered by the plaintiff do not
indicate the size of the land
allegedly sold to the plaintiff
by Mr. Nelson Cofie. He also
found from the evidence that the
plaintiff did not pay for the
full cost of the land to enable
a written conveyance to be made
in her favour by the vendor so
she cannot pray for a
declaration of title. The judge
further remarked on the want of
description of the land the
plaintiff sought title for as
she did not describe her
boundaries. The trial judge
considered the evidence of the
defendant, his title deed and
the fact that at the time of the
trial the defendant had built
two houses on the land.
He dismissed the
plaintiff’s claim and entered
judgment for the defendant on
his counterclaim
Dissatisfied with the
judgment of the trial Circuit
Court, the plaintiff appealed to
the Court of Appeal. By a
majority of 2.1, the Court of
Appeal allowed the appeal and
entered judgment for the
plaintiff.
The Court of Appeal found
that from the facts, there was
an unwritten contract for the
transfer of the land between the
plaintiff and Lawyer Nelson
Cofie. This contract was partly
performed by the part payment
made by the plaintiff and her
effective occupation and
possession of the land over a
decade prior to the trespass.
Additionally, from the Record of
Appeal, the defendant could not
be described as bona fide
purchaser for value without
notice. He was fully aware of
the plaintiff’s possession and
occupation of the land in
dispute prior to the purported
transfer of the subject matter
by the deed of gift or sale.
According to the
dissenting judge however, there
was sufficient evidence on
record to support the trial
judge’s finding of title in the
defendant’s favour.
Dissatisfied with judgment
of the Court of Appeal, the
defendant has appealed to us on
the following grounds;
a.
The judgment is against
the weight of evidence
b.
The majority of the
learned judges erred when they
substituted their own findings
for those of the learned trial
judge.
c.
The court erred in
applying the principle of part
performance and adverse
possession to ground it decision
when they had not been pleaded
and when indeed they were not
applicable
d.
The identity of the land
in dispute being crucial in the
plaintiff’s claim for
declaration of title, the court
erred when it preferred the
identity of the land as
contained in a documents given
to the plaintiff by an
acknowledged non owner to the
contradicted evidence of the
owner of the land who the
plaintiff herself called as a
witness (PW 1);
e.
It was wrong for the court
to have visited more or less the
“sins” of the plaintiffs own
grantor if any on the Defendant
when the plaintiff has not taken
any action against him (grantor)
for those alleged sins but
rather call him as a witness
f.
The court failed to
consider adequately the evidence
of the defendant, the finding by
the court that the defendant has
used his financial superiority
highly prejudiced the court’s
fair consideration of the
defendant’s case;
g.
The court erred in
dismissing the defendant’s
counterclaim and
h.
Additional grounds with
leave of the court when the
record of proceedings is
received.
Summary of submission by the
parties to the Supreme Court
Before us the defendant
has submitted that the judgment
of the Court of Appeal was
against the weight of evidence
adduced at the trial court. In
the opinion of the trial court,
the admission by the plaintiff
that at the time she obtained
Exhibit A from the Gbese Korle
stool she knew very well that
the land did not belong to the
stool and yet went to obtain
documents from the Stool, is an
admission of fraud.
On the description of
land, the Court of Appeal held
as follows;
“Therefore it is our
respectful view that it is not
so much arithmetic accuracy in
the description of the land that
will give one title. On that
score, we would opine that the
trial judge fell into error”
The defendant submitted
that this is not borne out by
the evidence as same is not only
contrary but inconsistent since
the whole land in issue was 4
plots and not four and one half
plots as the witnesses of the
plaintiff portray.
The defendant further
submitted that all the findings
made by the trial court were
supported by the evidence and
the Court of Appeal had no
grounds to set them aside and
substitute its own. He further
submitted that the Court of
Appeal failed to adequately
consider the case of the
defendant. He cited the case
of Re: Okine (Deceased) Dodoo &
Anor Vrs Okine & Ors [2003-2004]
SCGLR 582 where the
principle was laid down as:
“an appellate court must
not disturb findings of fact
made by a trial Court, even if
the appellate court would have
come to a different conclusion,
unless the findings of fact made
by the trial judge were wholly
unsupportable by the evidence.”
The defendant cited
Order 19 Rule 16 of the High
Court (Civil Procedure) Rules
1954 (LN 140 A) and Order II
(‘8)(1) of the High Court (Court
Procedure) Rules 2004 (CI 47),
and further submitted that the
Court of Appeal also erred in
applying the principles of part
performance and adverse
possession to ground its
decision when they had not been
pleaded and when indeed they
were neither applicable nor
relevant in the case. According
to the defendant, the plaintiff
never raised the issue of
specific performance, neither
did she raise the issue of
adverse possession under the
statute of limitation. Thus, the
Court of Appeal could not suo
motu raise the issue as well as
invoke the provisions of the
Limitations Act and give
judgment for the plaintiff on
it.
Order 19 Rule 16 of the High
Court (Civil Procedure) Rules
1954 (LN 140 A)
provides that;
“the
defendant or the plaintiff (as
the case may be) must raise by
his pleadings all matters which
show the action or counter claim
not to be maintainable, or that
the transaction is either void
or voidable in point of law, and
such grounds of defence or
reply, as the case maybe, as if
not raised would be likely to
take the opposite party by
surprise, or would raise issues
of fact not arising out of the
preceding pleadings as, for
instance, fraud, statute of
limitations, release, payment,
performance, facts showing
illegality either by statute or
common law or statute of fraud”.
Finally, the defendant
submitted that the Court of
Appeal erred in dismissing his
counterclaim. He submitted he
gave sufficient evidence on his
grant and tendered a conveyance
of the transaction in writing
and the trial judge evaluated
the probabilities and gave
judgment in his favour. He
reiterated his earlier point
that an appellate court has no
power to set aside findings of
fact made by the trial court
unless these findings were not
supported by the evidence or
when it is clearly shown to be
wrong or the judge did not take
all the circumstances into
account. According to the
defendant the only ground for
dismissing the defendant’s
counterclaim was that he had
known of the presence of the
plaintiff on the land yet had
gone to purchase the land, a
conduct the Court of Appeal
viewed as fraudulent. The
defendant submitted that the
conclusion that was arrived at
by the learned judges of the
Court of Appeal was harsh and
unsupportable and indicates that
no consideration was given to
his case.
In conclusion he submitted
that the trial judge was
justified in the judgment it
gave and the Court of Appeal
rather erred in setting aside
the judgment.
On his part the plaintiff
submitted that the defendant
departed from his earlier
pleadings without amending the
writ. She argued that the
defendant pleaded in paragraphs
9, 10 and 12 of his amended
statement of defence that the
disputed land was gifted to him
by PW1 and was covered by a Deed
of gift dated 3/05/02. However,
without amending his pleadings,
the defendant pleaded another
case of purchase of the disputed
property in paragraphs 17 and 18
of the same amended statement of
defence. The plaintiff thus
argued that this departure in
pleading sinned against Order 11
r.10 of C.I 47 which provides
that “A party shall not in
any pleading make any allegation
of fact or raise any new ground
or claim, inconsistent with a
previous pleading made by the
party.” In court, the
defendant continued with his
inconsistency as he departed
again from his pleaded case of
gift to one of purchase. She
supported this argument with the
decision of the Supreme Court in
Frabina Ltd v. Shell Ghana
Ltd [2011] 1 SCGLR where the
court held that
“the essence of pleadings is,
inter alia, not only to inform
the opposing party of the case
it will meet but also to put the
opposing party on notice so as
to prepare its case in response
to the facts pleaded against it.
In the instant case, the
contention by the plaintiff that
the payment of GHS 10,000 was a
refundable deposit was not only
an afterthought; it was also
belated attempt to change its
case from that of working
capital to refundable deposit.
That change would fly in the
face of the known principles of
pleadings; especially as
provided in the High Court
(Civil Procedure) Rules, 2004
(C.I 47), Order 11, r 10(1).
Thus the plaintiff submits that
the trial circuit court could
not have considered the deed of
gift (exhibit 3) of the
defendant, let alone made
findings thereon for him, under
any circumstance.
On the issue of possession and
occupation of land, the
plaintiff submitted that the
defendant knew of the
plaintiff’s occupation and
possession of the said property
in dispute before he purported
to obtain same from their common
grantor. This fact was
corroborated by the
PW3(carpenter) and PW4(mason).
That this fact was not
challenged by the defendant’s
lawyer during his cross
examination of the plaintiff and
the two witnesses was an
admission of the truthfulness of
that fact.
According to the plaintiff, the
reliance on documents alone in
proof of ownership of land as
defendant was seeking to do, is
not the position of the law. She
cited the case of Crentsil v
Kweinua [1979] GLR 348 where the
court held inter alia:
“In an action which
raises a question of title to
land… long possession and acts
of ownership afford pregnant
evidence of title in the person
possessed, notwithstanding the
non-production of his title
deeds, and even against some
evidence of title in the other
party.”
Plaintiff further submitted that
PW1’s interest in the land was
extinguished after sale to her,
and therefore had no interest to
pass to defendant or anybody
else. He cited on the case of
Sasu v. Amua Sakyi [2003/04]
SCGLR Vol.2, 742 holding 4,
the court said on the nemo dat
rule as follows:
“By virtue of the principle of
nemo dat quod non habet the same
stool had no land to sell to the
defendant. Therefore the
defendant acquired no valid
title to the land when he bought
it in 1973… that meant that as
between the 2nd
plaintiff and the defendant, the
defendant had no valid title to
the land…”
The plaintiff contended that the
Court of Appeal was right when
it held that the defendant
sought to use his financial
superiority to quickly commence
the construction of three
buildings on the land in
dispute.
On the final ground of appeal
that the Court of Appeal erred
in dismissing the defendant’s
counterclaim, the plaintiff
submitted that this allegation
is not supported by the
evidence. She observed that it
was strange on the part of the
defendant to argue that because
the PW1 had not given any lease
document to the plaintiff, the
Court of Appeal should have
ignored the overwhelming
evidence before them and thus
not tamper with the decision of
the trial court. The plaintiff
in turn submitted that on the
basis of pleadings, and evidence
before the Court of Appeal, the
court was very right in
overturning the judgment of the
trial court after evaluation and
assessment of the record.
She ended by intimating that the
courts must do justice not only
by looking at legal rights.
However dubious or questionable
the circumstances of the
acquisition are, equitable
rights were as secure as legal
rights.
Before proceeding to
tackle the appeal which we
intend to do under the omnibus
ground of “Judgment is against
the weight of evidence”, we wish
to comment on two things which
may seem peripheral to the
appeal but are equally
important.
IDENTITY OF THE LAND.
One of the main grounds
for the dismissal of the
plaintiffs case by the trial
judge was that plaintiff had
failed to describe the
boundaries and the dimensions
of the land for which she seeks
a declaration of title. He cited
the case of NYIKPLORKPO V
AGBODOTOR 1987-88 1 GLR163,
where the court said
“To succeed in an action
for a declaration of title to
land, recovery of possession and
for an injunction, the plaintiff
must establish by positive
evidence the identity and the
limits of the land which he
claimed…. No court of justice
could be expected to give a
declaration of title or recovery
of possession to a plaintiff in
respect of an area whose
boundaries were so uncertain.”
Axiomatic as this legal
statement is, it only becomes
applicable when identity and
dimensions of a subject land is
in issue or dispute. In this
case the identity and dimension
of the land is not in dispute.
This was a piece of land sold by
the same grantor to two
different persons at different
times. It involved 4-4/12 plots.
The plaintiff had put up a fence
wall around it. Yes, it is true
that the exhibit C series which
evidenced the sale of the land
to the plaintiff did not
specifically identify, or give
dimensions of the land, but
between the plaintiff and the
grantor they knew what area of
land they had contracted over.
If the plaintiff was claiming
beyond the area purchased, it
was the grantor and not the
defendant who, clearly, is a
trespasser, who has to say so.
The Court of Appeal rightly put
it when it said
“in our respectful view it is
not so much the arithmetic
accuracy in the description of
the land that will give one
title”
ISSUES OF SPECIFIC OR PART
PERFORMANCE AS UNPLEADED FACTS
The next issue that needs to be
addressed is the issue of
unpleaded facts. Unpleaded facts
are facts that do not appear in
the pleadings of a party, either
in his statement of claim or
statement of defence; and unless
the pleadings are amended the
courts will not allow a party to
make claim or submissions on it.
The function of pleadings is
well espoused in the case of
DAM v. J. K. ADDO AND BROTHERS
[1962] 2 GLR 200 where the
Supreme Court held that,
“The function of
pleadings is to give fair notice
of a case which has to be met,
so that the opposing party may
direct his evidence to the issue
disclosed by them. To condemn a
person on a ground of which no
fair notice has been given may
be as great a denial of justice
as to condemn him on a ground on
which his evidence has been
improperly excluded.”
The learned Judges of the Court
of Appeal held that the evidence
adduced at the trial pointed to
the existence of an unwritten
contract between the plaintiff
and Nelson Cofie, which she
partly performed by the payments
of large sums of money. So
Nelson Cofie could not have
validly sold the land again to
the defendant.
According to the defendant, the
issues about part performance
was not raised by the plaintiffs
therefore it was wrong for the
learned judges of the Court of
Appeal to have raised their own
issues and hence adjudicate in
favour of the plaintiff.
To support his argument,
he quoted Order 19 Rule 16 of
the High Court (Civil Procedure)
Rules 1954 (LN 140 A) which
provides that
“the
defendant or the plaintiff (as
the case may be) must raise by
his pleadings all matters which
show the action or counter claim
not to be maintainable, or that
the transaction is either void
or voidable in point of law, and
such grounds of defence or
reply, as the case maybe, as if
not raised would be likely to
take the opposite party by
surprise or would raise issues
of fact not arising out of the
preceding pleadings as, for
instance, fraud, statute of
limitations, release, part
performance, facts showing
illegality either by statute or
common law or statute of fraud”.
Again true as this statement may
be, it does not apply in this
case. This provision is a
caution to the parties in the
case so as to avoid “surprises”
to contending parties before the
court in the course of trial. If
the suit had been between the
plaintiff and Nelson Cofie then
the plaintiff may have been
required to plead part
performance and lead evidence in
support of same. Even then since
from the evidence there was no
denial by Nelson Cofie of
payments made by plaintiff to
him towards the purchase of the
land, the plaintiff was not
required to lead any further
evidence on that. So the Court
of Appeal’s holding that there
was in existence an unwritten
contract was borne out of the
evidence on record. Where a
particular relief is not
specifically claimed but
evidence has been led that
supports a claim for that
relief, a court is bound to
consider same.
In the case of Drane Vrs
Evangelou [1978] 2 ALL ER 1437
it was held that
“the judge was
entitled of his own motion to
raise the issue of trespass even
though it had not been pleaded,
because the facts were
sufficient to warrant a claim
for trespass and as they are set
out in the particulars of claim
the defendant could not claim
that he had been taken by
surprise when the judge raised
the issue.”
Again, even though the general
position is that the court shall
not grant a relief which has not
been sought, the exception is
that where it is in the interest
of justice and fairness it may
be granted. Such exception was
applied in the case of
AFRIYIE v. DOTWAAH AND ANOTHER
[1962] 1 GLR 458 where the
court held that
the plaintiff, as successor to
Pramang, is however, entitled to
accounts from the first
defendant. Although no such
claim has been made against the
first defendant the court will
order him to account to the
plaintiff, otherwise justice
will be defeated by a mere
technicality. To this end it is
immaterial that the first
defendant is not physically in
possession of the farm. It would
be wrong to allow him to evade
his liability to account by his
own wrong.”
Apaloo J (as he then was) said
in that case that
“I have come to the
conclusion that to refuse to
make the order only on the
ground that the plaintiff
misappreciated her right as to
who was legally accountable to
her would suffer justice to be
defeated by a mere
technicality.”
See also AKUFO-ADDO v.
CATHELINE [1992] 1 GLR 377
where the Supreme Court held,
“So it can be said
that the Court of Appeal should
not decide in favour of a
defendant on a ground not put
forward by him unless the court
is satisfied beyond doubt,
first, that it has before it all
the facts or materials bearing
upon the contention being taken
by it suo motu; and secondly,
that the point is such that no
satisfactory or meaningful
explanation or legal contention
can be advanced by the party
against whom the point is being
taken even if an opportunity is
given him to present an
explanation or legal argument;
for example, void matters as in
this case.”
See also the case of Hanna
Asi (No.2) v. GIHOC
Refrigeration & Household
Products Ltd (No.2) (2007-2008)
SCGLR 16.
In the course of adjudicating
cases justice and fairness need
to be seen to be done. We
believe that it was just fair
for the learned judges of the
Court of Appeal to advert their
minds to the issue of part
payments and specific
performance in this case which
were issues that flowed directly
from the findings of fact made
by the trial court.
In the case of Kotey v
Korletey [2005-2006] SCGLR 368
it was held that:
“The doctrine of part
performance referred to in
section 3(2) of the Conveyancing
Decree, 1973 (NRCD 175), is an
equitable remedy. Thus where a
contract for the sale or other
disposition of land was not
evidenced in writing, it might
nevertheless be enforced by a
decree of specific performance
if it had partly been carried
into effect. And an act of part
performance in equity must be (i)
referable to the contract
alleged and no other title; (ii)
the act must be such as to
render it fraud in the defendant
to take advantage of it not
being in writing; (iii) the
contract in its own nature must
be enforceable by the court”
From the facts of this case the
plaintiff made substantial
payments towards the purchase of
the subject land and had
therefore acquired an equitable
interest in same pending only a
formal conveyance upon her
completing payment. Thus it will
be inequitable on the part of
Nelson Coffie to sell the land
to another person without giving
the plaintiff the opportunity to
finish paying for it. The
principle in law has always been
that where a plot of land is
sold or leased unconditionally
and the buyer or lessee makes
part payment of the purchase
price, the right course of
action open to the seller or
lessor is to sue for recovery of
the unpaid balance, possibly
with interest. He cannot ask for
cancellation of the agreement or
the return of the land. And he
definitely cannot purport to
sell to another person without
being caught by the nemo dat
qoud non habet rule.
We hold that the learned
Justices of the Court of Appeal
did not err in law when they suo
motu raised the issue of part
payments and specific
performance which in our view
had been adequately covered by
the findings in the court
room..
Having addressed these two
issues we now turn to the other
grounds of appeal which we will
take together under the omnibus
ground.
Judgment is against the weight
of evidence
My lords before us, the
defendant alleges that the
judgment of the Court of Appeal
was against the weight of
evidence. He further asserts
that the Court of Appeal should
not have interfered with the
findings of the trial court
except where it is clearly shown
to be wrong, or the judge did
not take all the circumstances
into account or that the
findings are not supported by
the evidence.
Where a defendant complains that
a judgment is against the weight
of evidence, it implies there
are certain pieces of evidence
on record which if applied in
his favour, could have changed
the decision in his favour or
certain pieces of evidence were
wrongly applied against him. It
is trite learning that where the
defendant alleges that the
judgment is against the weight
of evidence, the appellate court
is under an obligation to go
through the entire record to
satisfy itself that a party’s
case was more probable than not.
As was held by their Lordships
in Tuakwa v Bosom [2001-2002]
SCGLR 61,
“an appeal is by way of
re-hearing, particularly where
the Defendant alleges in his
notice of appeal that the
decision of the trial court is
against the weight of the
evidence… In such a case, it is
incumbent upon an appellate
court, in a civil case, to
analyse the entire record of
appeal, take into account
the testimonies and all
documentary evidence adduced at
the trial before arriving at its
decision, so as to satisfy
itself that on a balance of
probabilities, the conclusions
of the trial judge are
reasonably or amply supported by
the evidence”.
With greatest respect to
the learned trial judge,
he proceeded on an erroneous
assumption that the plaintiff
had a greater burden of proof
than the defendant. In his
conclusion at the trial, he
stated,
“From the totality of
evidence on record, I will hold
that the plaintiff has failed to
prove her claim on the balance
of probabilities as is required
of her by law. I will therefore
dismiss the plaintiff’s claim
and enter judgment for the
defendant on his counterclaim.”
In this case, both parties
are asking for a declaration of
title. Therefore, there is an
equal responsibility to prove
their title on the preponderance
of probabilities. In the case of
Jass Company Ltd & Anor v.
Appau & Anor [2009] SCGLR 265,
the Supreme Court speaking
through our worthy brother
Dotse JSC said,
“The burden of proof is
always put on the Plaintiff to
satisfy the court on a balance
of probabilities in an action
for declaration of title to
land. Where the defendant has
not counterclaimed, and the
Plaintiff has not been able to
make out a sufficient case
against the defendant, then his
claims will be dismissed.
Whenever a defendant also files
a counterclaim, then the same
standard or burden of proof will
be used in evaluating and
assessing the case of the
defendant just as it was used to
evaluate and assess the case of
the Plaintiff against the
defendant.”
From the findings on the
record of appeal, it is not in
dispute that the land belonged
to Nelson Cofie who was the
grantor to both parties. So the
main issue for determination of
this case is “who has a better
or valid title to the land”?
Thus since each party had
claimed for a declaration of
title, in pursuance of
section 11(4) and 12(1) of the
Evidence Decree, NRCD 323,
each of the parties has equal
burden to prove sufficiently
their entitlement to the land.
The plaintiff, led evidence to
establish that she had a
subsisting agreement with Mr.
Nelson Cofie for the sale of the
land to her. This is borne out
by the exhibit C series, which
were receipts of part payments
issued by Nelson Cofie who gave
evidence at the behest of the
plaintiff. He confirmed this in
his evidence in chief and cross
examination. The plaintiff also
led witnesses to corroborate the
fact that he had been in
possession of the land for the
past decade. All these witnesses
were not challenged by the
defendant during cross
examination on these vital facts
of the case. Clearly, from her
unchallenged evidence the
plaintiff had established that
had she acquired equitable
interest in the subject
property.
On his part the defendant, in
his amended statement of
defence, initially said the land
was gifted to him by a Deed of
Gift dated 3/05/2002, but later
in the same pleadings and on
oath abandoned the entire idea
of gift and rather stated that
he purchased the land from
Nelson Cofie. He said he
purchased the land after
visiting the land with Nelson
Cofie. But Mr. Nelson Cofie
stated emphatically that he
never had time to go onto the
land with any prospective
purchaser. One would have
expected the defendant to
subject PW1 to cross examination
on this point. But he did not.
In the case of
WIAFE v. KOM
[1973] 1 GLR 240,
the court held;
“Where a witness
testified on oath on certain
vital matters and the opposing
side was silent in his
cross-examination on those
matters, he would be taken to
have admitted those matters.”
In the absence of any cogent
evidence from the defendant
shifting the probabilities in
his favour we hold that on the
preponderance of probabilities
the plaintiff has discharged the
burden of proof sufficiently as
against the defendant whose
averments is shrouded in
inconsistencies.
We hold therefore that
from the payments , the
plaintiff had acquired equitable
interest in the land. We also
find that the plaintiff was in
effective occupation, built on
the land and constructed a fence
wall around the land.
This finding of prior equitable
interest acquired by the
plaintiff should dispose of the
appeal. However to put the
frivolity of the appeal beyond
doubt we proceeded to find out
if the defendant’s interest
could be saved by the principle
of “bona fide purchaser for
value without notice”.
It is trite learning that a
bona fide purchaser for value
without notice can acquire a
valid title. In the case of
TAHIRU v. MIREKU AND ANOTHER
[1989-90] 2 GLR 615, the
court held that,
“the co-defendant
having been a party to this
fraudulent deal cannot be a bona
fide purchaser. The court also
found on the preponderance of
the evidence, that the
co-defendant had notice of the
prior interest of the plaintiff
in the house. Accordingly, I
hold that she is not a purchaser
for value without notice.”
From the record of appeal in
this instant case, there is no
doubt that there was a
transaction of conveyance
between Nelson Coufie and the
defendant in which the land in
dispute was alienated to the
defendant, although there is a
doubt as to the form of
alienation that took place, gift
or sale. Pursuant to this
alienation, the defendant went
to the Lands Commission for his
land to be plotted. But
did the defendant have notice of
the plaintiff’s prior interest
in the land at the time of
registration? We think so. In
Megary and Wade on The law of
Real PROPERTY, 5th
edition, p.142, the learned
authors said this of notice of
prior interest
“The relevant time for the
operation of doctrine of
innocent purchaser is the time
of purchase and not
subsequently.”
From the evidence adduced before
the trial court, the defendant
was sufficiently aware of the
interest of the plaintiff in the
land, which is the subject
matter of the dispute. This can
be seen from the unchallenged
testimony of the plaintiff, PW3
and PW 4.
The plaintiff testified that she
and defendant were neighbours.
At page 91 of the records of
appeal she said:
“As neighbours when there is
shortage of water we go to the
defendant’s house to fetch some
and the defendant’s children and
my children attend the same
Bible class.”
This evidence was not challenged
when the counsel for the
defendant had his turn to cross
examine the plaintiff.
PW3, the carpenter who worked on
the disputed land for plaintiff
said this under cross
examination as follows;
“when we put up the building, I
did not know Mr. Akyeampong.
Nobody came to claim the land.
We all knew the land belonged to
the plaintiff. I know where the
defendant lives. The defendant’s
house is not far from the
plaintiff’s property. I was the
carpenter who flowed(sic) the
main building and I also put the
box for the pillars for mason to
mold blocks to fence the
house.”(p. 102)
Again, this testimony by the
witness was not challenged.
PW 4, the mason, testified that
he built the wall and plaintiffs
building on the land. This is
what he had to say, at page 104,
lines 16-19:
“When I was working for the
plaintiff I knew the defendant
and know his residence… When I
was working for the plaintiff,
the defendant was living nearby
weaving kente cloth.”
He then adds, from lines 22 -27
on the same page that :
“While working, nothing
happened to suggest that the
plot belongs to somebody else.
Defendant never came to claim
that the plot belongs to him. I
used to converse with the
defendant. My store was on their
road and when he passes that
area we conversed. Defendant saw
me working on the land. And he
knows that the land belonged to
the plaintiff.”
Again this testimony was not
challenged. This leads to a firm
conclusion that the defendant
knew about the prior interest
and occupation of the plaintiff
on the land. It would have been
fair on the part of the
defendant as neighbours to have
consulted the plaintiff or his
agent when Nelson Cofie sought
to sell the land to him
In the English case of
Kingsnorth Finance Trust Co ltd
v Tizard [1986] 1 WLR 783,
the court held that;
“a bona fide purchaser will
not be bound by equitable
interests of which he/she does
not have actual, constructive or
imputed notice, as long as
he/she has made ‘such
inspections as ought reasonably
to have been made’”.
In the case of Boateng v
Dwinfuor [1979] GLR 360 holding
3 the court stated that:
“The general principle of equity
was that a purchaser was deemed
to have notice of all that a
reasonably prudent purchaser
would have discovered. Thus
where the purchaser had actual
notice that the property was in
some way encumbered, she would
be held to have had constructive
notice of all that she would
have discovered if she had
investigated the encumbrance. In
the instant case D admitted in
evidence knowledge that B was
living in the disputed house as
tenant at the time she bought
it; she would therefore be
deemed to have had constructive
notice of and to have been bound
by B’s tenancy and its terms,
including equities which as a
tenant, he had against A.”
This reasoning has been
confirmed in the case of
MOASA CO v SAARA [1999-2000] 1
GLR 538 where the court held
that:
“the law was that a grantor
should not derogate from his
grant. Accordingly, since the
Odorkor stool had earlier
granted the land in dispute to
the defendant, it had no right
to regrant that land to the
plaintiff or to any other
person, since the defendant had
not breached a condition of the
grant that could have led to
steps being taken by the stool
to re-enter. In any case, since
the plaintiff was aware of the
fact that ownership of the land
in dispute was vested in the
defendant and had seen clear
acts of her possession on the
land, he could not claim to be a
bona fide purchaser for value
without notice. The evidence of
possession had made it
obligatory on him to make the
necessary inquiries on the terms
on which the person was
occupying the land. He was not
relieved of the onus to
investigate even if the grantor
had failed to disclose the
relevant facts or even lied to
him, since registration per se
did not guarantee title to a
person who otherwise had none.”
In sum, in this case the
defendant had actual notice of
the plaintiff living on the land
and never made an attempt to
consult him when Nelson Cofie
was about to or after he had
sold the land to him in 2002.
However, immediately the land
was sold to him he went about
demolishing the wall already
erected. Thus he was not a bona
fide purchaser for value and any
interest he purportedly acquired
by subsequent plotting at the
lands commission and registering
the land was void ab initio.
In conclusion, we find the
decision of the Court of Appeal
unassailable and we confirm
same. For the avoidance of
doubt, we find that the
plaintiff succeeds in his claim
and the defendants counterclaim
is dismissed.
POST SCRIPT
We deprecate the behaviour of
Lawyer Nelson Cofie and condemn
in no uncertain terms his
actions and inactions which have
resulted in this judgment. As a
member of the noble profession
of lawyers, his behavior cannot
pass without comment. Collecting
various sums of money from
purchasers without ensuring that
such purchasers are given the
right land without any
encumbrances, or selling the
same parcel of land to different
purchasers, is highly
irresponsible and borders on
criminality! And he had the
impudence to stand before a
court of law and say gleefully
and unapologetically admit that
he was too busy to visit the
land with prospective purchasers
after collecting their monies,
preferring to leave that to his
surveyor, who incidentally is
deceased! This creeping
phenomenon where land owners
sell lands to 2 or more persons
must stop. We hope that victims
of such illegalities like the
defendant will have the courage
and boldness to bring actions
against the perpetrators of such
acts no matter their station in
life.
P. BAFFOE-BONNIE
(JUSTICE OF THE SUPREME COURT)
J. V. M. DOTSE
(JUSTICE OF THE SUPREME COURT)
N. S. GBADEGBE
(JUSTICE OF THE SUPREME COURT)
A.
A. BENIN
(JUSTICE OF THE SUPREME COURT)
Y. APPAU
(JUSTICE OF THE SUPREME COURT)
COUNSEL
K. ADJEI-LARTEY FOR THE
DEFENDANT/RESPONDENT/APPELLANT.
ADJABEN AKRASI FOR THE
PLAINTIFF/APPELLANT/RESPONDENT. |
