HOME  JUDGEMENT OF THE COURT OF APPEAL

JUDGMENT

Well over a century ago on 21st March, 1888 Kofi Bordai, ancestor or the defendant/respondent who hailed from Esikuma in the Gold Coast Colony, purchased a piece of land known as Asisiwah lying between Esikuma and Assin Anyinabirim. His vendor was Edward Francis Amissah of Essiam, also in the Gold Coast Colony. Kofi Bordai paid an amount of twelve pounds seven shillings for the land. According to the deed poll, exhibit A that evidenced the sale transaction, the purchased land contained ten villages including Asisiwah, Bentsinase, Mpeasem, Akinkoassie, Quandoo, Aninam, Gyingyinase, Odumbarkuo, and Otwitsin Awuradur. The result of the various long and protracted litigations that challenged Kofi Bordai's ownership and control of the land in dispute was that kofi Bordai and his successors retained the ownership and control of the land. The last challenge to Kofi Bordai's ownership of the land came from Nana Ofori Daban II, Chief of Assin Anyinabirim, the plaintiff/appellant herein directed at Ekua Akyema, successor to Kofi Bordai, the defendant/respondent herein. The basis of the plaintiff's challenge was that the deed poll dated 21st March, 1888, was allegedly tainted with fraud and therefore passed no title to the defendant's ancestor Kofi Bordai. In a writ of summons which was filed on 26th June, 1989 the plaintiff claimed for the following reliefs:

(a) Declaration that the deed poll bearing the date 21st March, 1888 whereby one Edward Francis Amissah purported to "bargain, sell, assign, transfer and set over unto" Kofi Bordai what was said to be a "a large plot of land between Essikumah and Assin Anyinabirim" and called "Assisiwah" containing certain villages is fraudulent and therefore a nullity.

(b) Delivery of the said document for cancellation.

(c) Injunction restraining the defendant by herself, servants or agents from in anyway whatsoever relying upon or making use of the said document.

The plaintiff's Amended Statement of Claim is as follows:

1. While the plaintiff is the chief of Assin Anyinabirim and institute this action in that capacity the defendant is the customary successor of one Kofi Bordaa or Bordai who died several years ago and is sued in that capacity.

2. Before his death Kofi Bordaa had had in his possession a document in the form of a deed poll bearing the date 21st March 1888 purported to be executed by one Edward Francis Amissah said to hail from Essiam whereby the said Edward Francis Amissah purported to 'bargain, sell, assign, transfer and set over unto' him, Kofi Bordaa, what was said to be the 'large plot of land between Esikuma and Assin Anyinabirim called Asisiwah' containing ten villages.

3. On the strength of that document laid claim to and succeeded in asserting control over a large stretch of land near Assin Anyinabirim which included a large area of land between River Kurokyewa and River Dwawere which had been in the open and active possession of the citizens of Assin Anyinabirim since the foundation of the town two hundred years earlier. The said stretch of land so occupied by the citizens of Assin Anyinabirim is bounded on the East by the lands of Chief and people of Baako on the other side of the Kurokyewa River, in the North by the lands of the Chief and people of Akropong, Wurase and Gyamera and on the remaining sides by other lands occupied by the people of Assin Anyinabirim. The said stretch of land together with the said other land occupied by the people of Assin Anyinabirim constitutes one compact land originally belonging to the Chief of Assin Andoe which was granted to the plaintiff's ancestors to settle upon over two hundred years ago.

4. Of the ten villages mentioned in the said document given were by 21st March 1888, the date of the document, in occupation of citizens of Assin Anyinabirim who had established them as farm cottages in connection with farming activities in the area where they had been farming since the foundation of their town...

5. As successor to the late Bordaa the defendant has taken possession of the document and on the basis of it is asserting and exercising diverse acts of ownership over the area between the Kurokyewa River and River Dwawere which is and has, as hereinbefore stated, been farmed upon by citizens of Assin Anyinabirim since the foundation of their town.

6. The plaintiff says that he has recently discovered that the said document is a fraudulent conveyance.

Paragraph 6 of his Statement of Claim lists the PARTICULARS OF FRAUD as follows:

(i) The transaction recorded therein is a complete sham as far as the area aforementioned between the kurokyewa River and Dwawere River is concerned.

(ii) Procurement of preparation of the document by Kofi Bordai in the name of a fictitious Edward Francis Amissah who, to his knowledge, did not own the land covered by the document or at least the portion between the Korokyewa River and the River Dwawere occupied by the citizens of Assin Anyinabirim.

(iii) Alternatively, conspiring with the said Francis Amissah to bring the said document into existence with the intent to defraud or deceive.

(iv) The area between the Kurokyewa River and River Dwawere had been occupied by citizens of Assin Anyinabirim since the foundation of their town some two hundred years previously without the leave or licence of the said Francis Amissah as landowner.

(v) The absence of any just cause by 21st March, 1888 showing why, if Edward Francis Amissah was the landowner, he should sell to Kofi Bordai, land already occupied by citizens of Assin Anyinabirim without the knowledge and consent of such citizens.

(vi) The date 21st March, 1888 was fictitiously inserted so as to give the document a semblance of antiquity.

The defendant in turn counterclaimed for Declaration of Title and Recovery of Possession of the land in dispute. She also asked for the relief of Perpetual Injunction restraining the plaintiff and his agents, subjects, servants, assigns and relatives from in any way having anything to do with the disputed land.

The issues for trial were listed as follows:

i. Whether or not the deed poll bearing the date 21st March, 1888 purported to have been executed by one Edward Francis Amissah was and still is a fraudulent conveyance.

ii. Whether the document is a nullity.

iii. Whether the subsequent agreements, judgments and compromises based on the said deed poll are also null and void.

iv. Whether the agreements of 19th December, 1910 and 25th September, 1914 were fraudulent having regard to how they were prepared and executed.

The plaintiff's claim in its entirety was dismissed and the defendant was given judgment on her counterclaim for declaration of title. The learned trial judge concluded the judgment in the following words:

"In view of the fact that the people of Anyinabirim who are tenants to the defendant might have been misled by their chief into this unfortunate litigation, they will be allowed reasonable time of not more than four months from 15/12/92 to attorn fresh tenancy to the defendant or to her agent failing which an order to recover possession from them which I grant to take effect four months and a day from 15/12/92 can be executed. The plaintiff and his agents and assigns and servants etc. are perpetually restrained from in their own right having anything to do with the land. Costs to be assessed by the Registrar."

The plaintiff filed the following grounds of appeal:

i. The learned judge completely misdirected himself on the issues raised by the plaintiff's case and consequently failed to deal with those issues adequately.

ii. Alternatively the judgment was against the weight of evidence on the issues raised by the plaintiff's case.

iii. In allowing the defendant's counterclaim the trial judge failed to appreciate that he was recognising and giving effect to the judgment and agreements clearly demonstrated to have been obtained by means of fraudulent documents.

iv. The learned trial judge failed to appreciate that a judgment or agreement shown to have been procured by fraud is not to be recognised and enforced by the court.

The following two Additional Grounds of Appeal were filed:

i. The learned trial judge was wrong in referring the whole costs of the defendant to the registrar for assessment without doing it himself because there was no reason on the face of the record why the trial judge himself could not fix the amount of costs. By doing so the learned trial judge paved the way for the Registrar who had no experience in awarding costs to arrive at a fantastic amount of over one million cedis as costs in favour of the defendant/respondent for the trial in this case.

ii. The costs of one million cedis arrived at by the Registrar was excessive and unreasonable having regard to all the circumstances.

As it can be seen from the content of the two Additional Grounds of Appeal they relate to the award of costs. However in the STATEMENT OF CASE IN SUPPORT OF THE APPELLANT'S APPEAL, counsel's written address was completely silent on the issue of the award of costs by the registrar of the court below as ordered by the trial judge. In actual fact the plaintiff's counsel's submissions relating to the Additional Grounds of Appeal did not mention any thing about costs. At page 14 of the appellant's STATEMENT OF CASE his counsel made the following submissions, which I reproduce to clarify the dilemma in which I find myself when considering the relevance of counsel's submissions relating to the Additional Grounds of Appeal, which I have quoted above:

"ADDITIONAL GROUND TWO

Although as stated above, counsel for the defendant failed to address the court to answer the points raised in the address submitted on behalf of the plaintiff and thus waived his right to address the court, the learned judge himself decided to 'tackle' plaintiff's counsel's address and in so doing used his own points in answering the points argued by counsel for the plaintiff. (See page 103 line 22 of the record). It is submitted that what the learned judge did amounted to a great miscarriage of justice arising from a contravention of the audi alteram [partem] rule of natural justice. When evidence is concluded and it comes to addressing the court the party who addressed first is entitled to know what the opponent says in answer so as to afford him the opportunity to say something, if need be, to correct or add to what the answer says. Here counsel for the defendant failed to file a reply so the plaintiff did not know whatever could be said against what his counsel had submitted. The trial judge himself took the place of counsel for the defendant and used his own ideas, of which counsel for the plaintiff did not have the opportunity to react to, in dislodging the points raised in his written address submitted by him to enable judgment to be entered against the plaintiff in favour of the defendant. By the rules of practice where arguments have been made and the matter is left for the judge to give a decision, the judge is obliged to grant the parties the opportunity to know in advance the contrary views he wishes to rely upon to give his judgement. If when the new ideas arise the case has already been adjourned he has to recall the parties to apprise them of the new ideas and know their comments before he uses the new ideas as a basis of his judgment. A failure to allow the parties to see the new grounds on which the judge has proposed to base his judgment before he gives the judgment on those grounds amounts to a denial of a fair hearing... As it turned out, the learned trial judge supplied what counsel for the defendant had failed to supply and used them to give judgment for the defendant against the plaintiff. This was most unfair to the plaintiff and has occasioned a great miscarriage of justice to him."

Learned counsel for the appellant did not stop there. In what appears to be a new version of Additional Ground One he made the following submissions which appears at page 15 of appellant's STATEMENT OF CASE:

"GROUND ONE

The trial judge held that the plaintiff did not have the capacity to institute this action. (See page 117 line 13.) This was clearly wrong and unfair to the plaintiff. Although the defendant pleaded this lack of capacity in her defence her counsel failed to address the court on this to draw the court's attention to what evidence supported this lack of capacity. It being a point of law raised in the defence the defendant should have raised it as a preliminary point of law for argument or her counsel should have addressed on it to alert counsel for the plaintiff also to deal with the issue. Without any indication that the point was still being pursued and no reference having been made to it in the address submitted on behalf of the plaintiff the trial judge, out of the blue, raised this point in his judgment and decided it against the plaintiff. This was most unfair and unjust to the plaintiff as he was denied the opportunity to deal with the point..."

What makes the situation more difficult is the fact that the appellant's STATEMENT OF CASE does not quote the two additional grounds in respect of which counsel for the appellant made the submissions quoted above. Those submissions have nothing to do with the above quoted additional grounds relating to costs. What also makes things worse is the fact that respondent's counsel's written submissions in response to the plaintiff's STATEMENT OF CASE addresses the issues raised in what appears to be new additional grounds which have no place in the record of appeal. To help deal with the dilemma, judgment in this appeal, which was to have been delivered on 19th of December, 2002 was postponed to enable appellant's counsel to supply the court with the new version of the additional grounds of appeal, which from the submissions of both counsel appear to be in existence but which is not available to the court, as confirmed by the court clerk. After the Christmas Vacation the clerk informs me that he has not received a new version of the Additional Grounds of Appeal, which counsel for the plaintiff promised to supply to the court. I therefore have no option but to go on and complete this judgment on the assumption that the submissions quoted above do not relate to any existing Grounds of Appeal or Additional Grounds of Appeal. According to rule 20(1) of Court of Appeal Rules, 1997 (C.I. 19) as amended by Court of Appeal (Amendment) Rules, 1999 (C.I. 25) "An Appellant shall within 21 days of being notified in Form 6 set out in Part I of the Schedule that the record is ready, or within such time as the Court may upon terms direct, file with the Registrar a written submission of his case based on the grounds of appeal set out in the appeal and such other grounds of appeal as he may file". Since it is obvious that the above quoted submissions of learned counsel of the appellant do not conform to the statutory requirement that they must be based upon the grounds of appeal and other grounds that the appellant may file, they are not worth being considered by the court since they do little or nothing to advance the appeal of the appellant. It means in effect that the addresses of both counsel on the Additional Grounds of Appeal, which do not appear on the record of appeal are of no relevance to the issues relating to the Grounds of Appeal and the Additional Grounds of Appeal. Besides, the portion of the Statement of Case of the appellant quoted above did not in any way reflect any relationship to the Additional Grounds, which appear in the record of appeal. What we have to do therefore is to limit ourselves to the original Grounds of Appeal filed by the appellant namely:

i. The learned trial judge completely misdirected himself on the issues raised by the plaintiff's case and consequently failed to deal with those issues adequately.

ii. Alternatively, the judgement was against the weight of evidence on the issues raised by the plaintiff's case.

iii. In allowing the defendant's counterclaim the learned trial judge failed to appreciate that he was recognising and giving effect to judgment clearly demonstrated to have been obtained by means of fraudulent documents.

iv. The learned trial judge failed to appreciate that a judgment or agreement shown to have been procured by fraud is not to be recognised and enforced by the court notwithstanding the fact that such judgment or agreement has not been set aside for fraud.

Out of the seventeen pages long written address of learned counsel for the appellant contained in the Appellant's STATEMENT OF CASE the first fourteen pages are devoted to background information relating to this appeal as well as review of the evidence adduced at the trial. Since the submissions contained in those pages do not come under any of the grounds of appeal filed by the appellant I would agree with counsel for the respondent that we would do well to ignore them. I think it would be convenient to take the first two grounds together namely that the judgment is against the weight of evidence. From the issues, which  were set down for trial there is no doubt at all that the case was all about the validity of the deed poll dated 21st March, 1888. As would be expected the grounds of appeal have a direct relationship with the issues, which were set down for trial.

In his submissions relating to the first two grounds of appeal, learned counsel for the appellant did not point out the areas in the judgment of the court below which failed to address adequately the issue of the validity of the deed poll. Page 16 of the Appellant's Statement of Case contains the submissions of his counsel in that regard which are reproduced below:

"Grounds 1 and 2

For these grounds reference is made to the views expressed in the written address at pages 89-98 of the record to show that the several issues raised on the fraudulent nature of the deed poll there was sufficient evidence, which negatived any idea that Francis Edward Amissah did ever own the land between the two rivers. If he owned any land in the area it certainly did not include the land between the Kurokyewa River and the Dwawere River, having regard particularly to the fact that there was no evidence to show that he ever had any connection with the land before its alleged sale to Bordaa in 1888. There was no reason why, with the Anyinabirim people on the land actively farming on it he would sell the land to somebody else. What was to happen to the farms and cottages of the Anyinabirim people? Was the transfer to Bordaa subject to the rights, which the Anyinabirim people had over the land or their rights were overreached by one deed poll? If it was intended to overreach their rights then it was fraudulent and void, it having been without their consent. The defendant woefully failed to explain how the deed poll came to be made once there was irrefragable proof that the area was by 21st March, 1888 in the active possession of the people of Anyinabirim. The learned trial judge should, in the light of the evidence led by the plaintiff irresistibly tending to prove that Amissah had no vestige of right to sell that land to anybody, not have dismissed the plaintiff's claim against the validity of the deed poll. The dismissal of the plaintiff's claim was either clearly against the evidence or failed to appreciate the real nature of the controversy raised by the claim."

In the submissions of learned counsel for the appellant quoted above he makes capital of the fact that at the time of the execution of the deed poll of 1888 the people of Anyinabirim were in possession of the land and the deed poll which sought to deprive them of their rights was fraudulent and void. It is worthy of note that the deed poll lists the names of the ten villages, which were and are still being inhabited by the people of Anyinabirim. What is very obvious is that the submissions of learned counsel quoted above ignored the history of the plaintiff's predecessors' transactions with the land in dispute. The endorsement on the writ of summons and the plaintiff's pleading give the impression that but for the alleged fraudulent execution of the deed poll of 1888 the people of Anyinabirim were in occupation of the land in their own right having lived on the land for over two hundred years following a grant from the Andoe Stool. The learned trial judge saw through the smoke screen, which the nature of the plaintiff's reliefs sought to create and came out with obvious facts, which the plaintiff by his writ of summons and Statement of Claim deliberately brushed aside.

What the judgment of the court below highlighted was the fact that the predecessors of the plaintiff sought to pursue and acquire from the Andoe Stool some form of legal title to the land in dispute which implied that as far back as 1901 they acknowledged their need to seek legal recognition to their unauthorised presence on the land. The 1910 agreement, which cancelled the agreement of 1901 in so far as it related to the land of Bordai did, no doubt, recognise Bordai's ownership to the land in dispute. That means even if the predecessors of the plaintiff had not known about Bordai's ownership of the land in dispute that fact was made known to them by their supposed grantors, the Andoe Stool in 1910. I am quite sure that the predecessors of the plaintiff understood and accepted the position because following the 1910 agreement which announced clearly that the Andoe Stool had no claim to Bordai's land, they went ahead and dealt directly with Kofi Bordai and the result was an agreement dated 25th September, 1914. That agreement which appears at page 136 of the record of appeal was between Kofi Bordai and plaintiff's predecessor Kwaku Foli who represented sixty other farmers. The sequence of events, which give a clear account of the plaintiff's predecessors dealing with the land in dispute, is captured in the West Africa Court of Appeal judgment in the case of West Coast Timber Exporters And Another v. Matthew Fosu, which appears at page 185 of the record of appeal as follows:

"By exhibit H2 the co-defendant-appellant's predecessor who, in the year 1901 was claiming ownership of the area in dispute, purported to make an agreement with Kofi Foli (Ofoli) of Anyinabirem stipulating that Ofoli should sell or lease all Kweku Efilfa's stool lands for the consideration that the proceeds would be shared between them as 2/3 for Kweku Efilfa and 1/3 for Kweku Ofoli; a peculiar arrangement. By exhibit H1, which was made about nine years later Kweku Efilfa, as the agreement recites, cancelled exhibit H2 in so far as it relates to the lands of Kofi Bordai situate on the Eastern side of Anyinabirim land and town, the property of Chief Kwaku Afilfa and in possession of Kwaku Foli and his people, the river Jierra (Gwayir) being the boundary between Anyinabirim land and the lands of Kofi Bordai. The instrument goes on to declare that three years earlier the Agreement (Exhibit H2) which is dated 19th December 1901 was returned by him the said Kwaku Foli to Chief Kwaku Afilfa who delivered it to the said Kofi Bordai as evidence of the fact that the said Chief Kwaku Afilfa acknowledged Kofi Bordai to be the owner and they the said Chief Kwaku Afilfa and Kwaku Foli disclaimed right, title and claim thereto. It is to be noted that Kwesi Efoom and Yaw Fosu, predecessors of the plaintiff-respondent were witnesses to this document. It would appear that after the ownership of the land had been regularised and acknowledged in the manner stated above Kwaku Foli attorned tenant to Kofi Bordaa, and by the agreement of 25 September 1914 upon which Yaw Fosu, successor of Kofi Bordaa sued for tribute as already narrated".

It is important to note that the representatives of the Andoe stool whom the plaintiff's people see as their grantors dealt directly with Bordai when they acknowledged his ownership of the land in dispute. The effect of the plaintiff's claim is that his grantor, the Andoe stool was induced by fraud perpetrated by Amissah and Bordai to give up their claim of ownership of the land in dispute. If that were the case why has Andoe Stool not complained? When the Andoe stool dealt with Bordai the issue between them was obviously about ownership of the land and the plaintiff's people were not at all brought into the picture because that was not necessary. I do not want to think that representatives of Andoe stool relinquished their claim to the land in dispute just because Bordai showed the deed poll, exhibit A to them. I am quite sure that if they had a genuine claim of ownership as asserted in the 1901 agreement they would have stuck to their guns and not acknowledged the ownership of Bordai without a fight. There is an erroneous impression given by the stand taken by the plaintiff that Andoe stool owned the land in dispute prior to the date of the deed poll, exhibit A on 21st March 1888. From every indication there is no evidence of any claim of ownership by that stool at any point in time. The only time that the Andoe Stool impliedly asserted ownership to the land in dispute was when they executed exhibit D, the 1901 agreement. As indicated above they abandoned that position when they entered into the 1910 agreement, cancelled the 1901 agreement and acknowledged Bordai as the owner of the land in dispute.

The finding of the trial High Court on the plaintiff's allegation of fraud appears at pages 115 and 116 of the record of Appeal and it is reproduced below as follows:

"It follows that since the 1901 agreements have been found to be valid and not fraudulent all the subsequent ones are valid and not fraudulent and so I hold. It follows and I hold that the transaction recorded in the deed poll is not a sham. I find F.E. Amissah was not a fictitious person; I find he owned the land covered by the document. I dismiss the charge of conspiracy levelled against Amissah and Bordaa. I find it untrue that the area in question has been owned and occupied by the citizens of Anyinabirem for some 200 years. Their presence on the land as explained earlier was either as trespassers or bare licensees or as tenants of Andoe Stool, which it recognised as their landlord. I hold the sale by Amissah to Bordaa was valid".

As stated earlier in this judgment the Statement of the Plaintiff's Case is completely silent as to which aspect of the judgment of the trial court lacked factual or legal basis.

With all due deference to learned counsel for the appellants I do not exactly know what to make of the third and fourth legs of the original Grounds of Appeal namely: (iii) In allowing the defendant's counterclaim the learned trial judge failed to appreciate that he was recognising and giving effect to judgment clearly demonstrated to have been obtained by means of fraudulent documents and (iv) The learned trial judge failed to appreciate that a judgment or agreement shown to have been procured by fraud is not to be recognised and enforced by the court notwithstanding the fact that such judgment or agreement has not been set aside for fraud. In any case in all fairness the written submissions of learned counsel on those grounds is reproduced as follows:

"If the deed poll was fraudulent as the trial judge should have found out but failed to do, then legally it was void ab initio and no rights could have been acquired by Bordaa or his descendants to legally entitle them to make the agreements relied on by the defendant or the judgments which were based on them. This [is] the first case raising the issue of the deed poll's validity since it was made. There is therefore no judgment on the issue and the long passage of time could not turn what was a fraudulent and void document of title into a valid document. This is not a document made between the Plaintiff's ancestors, Bordaa and Amissah, in which case lapse of time might have amounted to a waiver of the right to object to it. It is a document made between two parties fraudulently to take away the rights of a third party. Any time the third party realizes the fraud in the document he can sue to have it declared a fraudulent document and get an order for its surrender and cancellation. The plaintiff's claim was in order despite the agreements and judgments unless there was evidence, which was not there, that those agreements and judgments obtained their inspiration from a source other than the existence of the deed poll."

What the address of learned counsel for the appellants fails to specify is the right of the "third party" that was taken away by the alleged fraudulent document. As demonstrated above at the time of the deed poll in 1888 the predecessors of the plaintiff had no legal right to be on the land. The conclusion of the trial court as stated above is that the execution of the deed poll was not fraudulent. Not only that, the agreements that followed, which acknowledged the ownership of Kofi Bordai of the land in dispute were also not fraudulent. That would take care of the submissions of learned counsel for the appellant. What came out in the trial was that not only was the plaintiff's predecessors outsiders so far as the 1888 deed poll was concerned but also it did not affect any right of theirs which was simply non existent. The first time that the plaintiff's predecessors sought to obtain some form of legal right to remain on the land in dispute was in 1901 when Chief Kwaku Afilfa, and Kweku Foli entered into an agreement, which affected that land. However that was cancelled by the agreement of 1910 with Kweku Afilfa, representing the supposed grantors of the plaintiff's predecessors making a declaration that it was Kofi Bordai who owned the land. It was the 1914 agreement that for the first time gave Kweku Foli and those whom he represented the right to farm on the land upon terms. For the reasons given in this judgment the appeal fails and it is accordingly dismissed. The decision of the court below with regard to the respondents counterclaim is affirmed.

B. T. ARYEETEY

JUSTICE OF APPEAL

I agree entirely with the judgement delivered by my brother Aryeetey and I have nothing more useful to add. I also dismiss the appeal.

P. K. TWUMASI

JUSTICE OF APPEAL

I also agree with my brother Aryeetey. I accordingly dismiss the appeal too.

K. TWENEBOA-KODUA

JUSTICE OF APPEAL

COUNSEL

MR. JAMES AHENKORAH FOR THE PLAINTIFF/APPELLANT

MR. EBO BARTON ODRO FOR THE DEFENDANT/RESPONDENT