|
Land - Declaration of title -
Boundaries - Rebuttable
presumptions - Whether or not
land has been acquired by
Government. - whether or not any
compensation was paid for the
acquisition of the land in
dispute. - Whether or not
plaintiff is entitled to the
claim - Whether or not
Certificate No. 404/1944 did not
reflect the true positions of
the boundaries on the land.
HEADNOTES
It was that the
plaintiff/respondent/appellant
family, (I shall hereinafter
call it as the
plaintiff-appellant family), was
a subject of the La Stool which
had been in possession of the
land in dispute until when in
1944 the Colonial government
compulsorily acquired 136.39
acres or 5.6 square miles of the
appellant family land for the
construction of an extension to
the aerodrome, for which
compensation of £30.00 (thirty
pounds) was paid to the La
Stool, the allodial owners of
the land, for the stool family,
(the usufructuary holders), for
18 acres of land affected by the
acquisition. Thereafter,
plaintiff’s family has been in
possession of the remaining area
of land measuring 136 acres,
which was unaffected by the
acquisition. The plaintiff
further stated the Military
expressed an interest in
acquiring the remaining land but
that was not made possible due
to the frequent changes in
government the military was not
able to acquire the remainder of
the land because it was not able
to establish any correspondence
between the Ministry of Defense,
Lands Commission, and the
plaintiff family, concerning the
amount to be paid for the
remaining 136 acres of land
belonging to the said family,
appellants herein. The
Government, represented by the
Lands Commission, assessed the
value of the remaining land at
¢64,000.00 (sixty four thousand
cedis), but this sum of money
has not been paid as yet.
Nothing has been done to acquire
the land legally and the
plaintiffs continued to carry
out their farming activities on
the land; they led evidence that
they are the owners of the land
in dispute. It was that the
Government compulsorily acquired
the land in dispute and tendered
the certificate of acquisition
in evidence, it was further
stated that the land so
acquired, was part of the
Aerodrome extension acquisition.
and £8,540 was paid to the La
Mantse, £1,283,11.8d paid as
compensation for crops, huts and
cattle kraal, thus making a
total of £9,824.8.8d paid for
the acquisition of the land.
HELD :-
After considering the appeal on
its merits, the court of Appeal
held that the conclusions by the
trial court in its judgment were
wrong; in my view, there could
be no doubt the appellate court
was right in its conclusions. We
affirm the judgment by the Court
of Appeal and dismiss the claims
of the appellant, plaintiff at
the trial High Court; we enter
judgment in favor of the
defendant, respondent at the
Court of Appeal, on his
counterclaim. The Appeal is
dismissed.
STATUTES REFERRED TO IN JUDGMENT
1992 Constitution,
Evidence Act, 1975, NRCD
323,
Public Lands (Protection)
Act, 1974, NRCD 240,
Local Government (Dangme
District Assembly)
(Establishment) Instrument, 1989
(LI 1490)
Local Government (Manya Krobo
District Assembly) Establishment
Instrument,1989 (LI 1492).
Public Lands Ordinance
1876, Cap 134
CASES REFERRED TO IN JUDGMENT
Bosom v Tuakwa [2001-2002]
SGGLR 61
Bonney v Bonney (1992-93)
GBR 779
Akuffo Addo v Cathline
[1992] 1 GLR 377
Republic v High Court,
Accra; ex parte Attorney General
(Titriku I & Others interested
parties) [2007-2008] SCGLR 665
In Re the Public Lands
(Leasehold) Ordinance and In Re
land acquired at Accra for
Public Works Department
workshop; Osu Mantse and others
(claimants) [1959] GLR 163
Gawu III v Ponuku [1960]
GLR 101
Kwabena v Atuahene [1981]
GLR 136
Nyikplorkplo v Agbodotor
[1987-88] 1 GLR 165, CA;
Anane v Donkor [1965] GLR
188 at 192,
BOOKS REFERRED TO IN JUDGMENT
Black’s Dictionary of Law,
Eighth edition
The Ghana Law of Evidence’
by J. Ofori-Boateng
DELIVERING THE LEADING JUDGMENT
ANSAH
JSC:
COUNSEL
KENNETH KUDJORDZIEE ESQ. FOR THE
PLAINTIFF/RESPONDENT/APPELLANT.
GRACE OPPONG ESQ. (SENIOR STATE
ATTORNEY) FOR THE DEFENDANT/
APPELLANT/RESPONDENT
---------------------------------------------------------------------------------------------------------------------
JUDGMENT
---------------------------------------------------------------------------------------------------------------------
ANSAH JSC:
Introduction
and facts of the case:
This is
an appeal against the judgment
of the Court of Appeal, (Civil
Division), Accra, dated, 16th
January, 2014, which dismissed
the judgment of the High Court,
Accra.
2)
The reliefs which the plaintiff
sought from the High Court at
the trial were for:
“a) Declaration of title to all
that piece of land situate and
lying at La in the Greater Accra
Region and bounded at the North
by Nii Manley Osokrono’s land
measuring 186.21 ft. from SGE
13/73/20 to 15/73/21,105. 44 ft
from SGCAJ 316/08/4 to SGGAJ
316/08/5, on the North East by
Burma Camp measuring 196.49 ft
from SGG316/98/5 to
SGGAJ316/08/6, 115.50 from SGGAJ
316/08/7 to SGGAJ 316/08/7 to
SGGAJ 316/08/8, to 133/.47 ft
from SGGAJ 316/08/8 to SGGAJ
316/08/9 to SGGAJ
316/08/10,809.4 ft from SGGAJ
316/08/11 from SGGAJ 316/08/to
12 11 7.1 ft from SSG216/08/13
to SGGAJ 316/08/14 on the West
by the Kotoka International
Airport measuring 21.445.6 from
GCAA 38,400 ft from 316/08/3 to
GCAA38,400.6 ft from GCAA 38,400
ft from GCAA 42,399.8 ft from
GCAA 47,799 ft from GCAA43400 ft
from GCAA44,799 ft from GCAA
4799.7 ft from GCAA 46,400 ft
from GCAA to GCAA47 and covering
an approximate area of 136.39
acres. (emphasis supplied in
bold)
ii). A declaration that
Certificate No. 404/1944 did not
reflect the true positions of
the boundaries on the land.
iii) An order to compel the Land
Registry No 404/1944 to reflect
the true positions of the
boundaries on the land”
The defendants appearance,
amended statement of defense and
counterclaim
:
“i. Declaration to all that
piece of land containing an
approximate area of 5.6
square miles situate in
the Accra District of the
Eastern Province of the Cold
Coast colony the boundary
whereof commencing at pillar
marked GCG 74 at the North
Western corner of the existing
aerodrome for 6338.5 feet on a
bearing of 900.00 to a pillar
marked GCC 79 and thence for
7393.5 feet on a bearing of
1800.00 to a pillar marked GCG
8.2 and thence for 2091.2 feet
on a bearing of 2800.00 to a
pillar marked GCG 83 and thence
for 2091.2 feet on a bearing of
1910.10 to pillar marked GCG 63
and thence pens on a bearing of
1910.10 for approximately 3058.8
feet and thence on a bearing of
940.08 for approximately 2;122
feet to a pillar marked GCSEP.
1/35/98 and thence on a bearing
of 940.08 for 4093.6 feet to a
pillar marked GCSEP 1/35/97 and
thence on a bearing of 2700.00
to a point on the Eastern edge
of the Accra-Dodowa road in the
Southerly direction to the point
commencement be the same several
dimensions little more or less
as the boundary is shown edged
with pink color on a plan
numbered x1840 (emphasis
supplied in bold) and attached
hereto.
II. Perpetual injunction
restraining the plaintiffs,
their agents, servants or
assigns from entering and
interfering with the defendants
right to the peaceful use of the
land for security purposes in
the public interest.”
Issues settled for trial:
At the
close of pleadings the parties
settled the following issues for
trial:
“1Whether or not land has been
acquired by Government.
2 Whether or not compensation
has been paid to the land
owners.
3 Whether or not plaintiff is
entitled to the claim.”
Judgment
by the trial court:
At the end of the trial at the
High Court, Accra, the judge
found in his judgment on the
evidence led before him that,
the plaintiff family’s land had
been wrongfully taken over by
the military and no compensation
had been paid to the family
except for £30 paid for 18 acres
of land. The trial judge found
that the land in dispute, was
for the plaintiff’s family; he
dismissed the counterclaim by
the defendant, and further
awarded costs of GH ¢1,000.00
for the plaintiff.
The
defendants were aggrieved by the
judgment of the High Court and
appealed to the Court of Appeal
which on 16th January
2014, allowed the appeal, set
the judgment of the trial High
Court aside and entered judgment
for the defendant and upheld its
counterclaim, but made no order
as to costs.
Appeal
to the Supreme Court:
The
plaintiff was dissatisfied with
the judgment of the Court of
Appeal and appealed to this
court on the grounds that:
“a. The
judgment is against the weight
of evidence on the record.
b. The
Court of Appeal erred when it
concluded that the present case
lends itself to the application
of certain presumptions of law
even though the evidence on
record suggests the contrary.
c. The
Court of Appeal erred when it
resorted to use of presumptions
of law to enable it rely on a
plan which was not in evidence
and so ascribe validity to
rejected evidence.
d. The
Court of Appeal erred when it
unjustifiably concluded that the
Lands Department and the
Military had negotiated for the
land, a subject matter of
dispute out of ignorance/mistake
contrary to the findings of fact
made by the trial judge.
e. The
Court of Appeal erred when it
proclaimed and rejected evidence
of CW1 & CW2 of the trial court
valid contrary to the findings
made by the trial court.
f. The
Court of Appeal erred when it
sought to interpret plan Y575 to
mean plan X1840 contrary to
evidence on the land
certificate.
g. The
Court of Appeal erred when it
gave judgment on a counterclaim
which was not proved in the
trial.
h.
Further grounds to be filed upon
receipt of the Record of
Appeal.”
Despite
the receipt of the record, the
appellant has filed no further
grounds of appeal, as he
intimated.
By this
appeal, the appellant sought a
reversal of the judgment of the
Court of Appeal, while that of
the trial High Court was
restored.
Ground
(A) of appeal:
There is not a dearth of
authority on this omnibus ground
of appeal that the judgment is
against the weight of the
evidence on record such as was
contained in Ground (a) of
appeal before us.
This
court stated in Bosom v
Tuakwa [2001-2002]
SGGLR 61 at 65 that:
“Furthermore, an appeal is by
way of a re-hearing particularly
where the appellant, that is the
plaintiff in the trial court in
the instant case, alleges in his
notice of appeal that the
decision of the trial court is
against the weight of evidence.
In such a case it is not the
function of the appellate court
to evaluate the veracity or
otherwise of any witness, it is
incumbent upon an appellate
court in a civil case to analyze
the entire record of appeal,
take into account the
testimonies and all documentary
evidence adduced at the trial
before it arrives at its
decision so as to satisfy itself
that, on a preponderance of the
probabilities the conclusions of
the trial judge are reasonably
or more amply supported by the
evidence”
See also
Bonney v Bonney
(1992-93) GBR 779 which
reiterated these principles of
law;
In
considering the first ground of
appeal before us, I shall
analyze the entire record of
appeal to see from how far the
evidence on record supported the
conclusions made by the courts;
I set out the respective cases
by the parties at the
trial:
The case
of the plaintiff at the trial:
It was
that the
plaintiff/respondent/appellant
family, (I shall hereinafter
call it as the
plaintiff-appellant family), was
a subject of the La Stool which
had been in possession of the
land in dispute until when in
1944 the Colonial government
compulsorily acquired 136.39
acres or 5.6 square miles of the
appellant family land for the
construction of an extension to
the aerodrome, for which
compensation of £30.00 (thirty
pounds) was paid to the La
Stool, the allodial
owners of the land, for the
stool family, (the
usufructuary holders), for
18 acres of land affected by the
acquisition. Thereafter,
plaintiff’s family has been in
possession of the remaining area
of land measuring 136 acres,
which was unaffected by the
acquisition.
The plaintiff further stated the
Military expressed an interest
in acquiring the remaining land
but that was not made possible
due to the frequent changes in
government. The La Stool
executed Exhibit B,
a deed of surrender, in favor of
the plaintiff, but the military
was not able to acquire the
remainder of the land because it
was not able to establish any
correspondence between the
Ministry of Defense, Lands
Commission, and the plaintiff
family, concerning the amount to
be paid for the remaining 136
acres of land belonging to the
said family, appellants herein.
The Government, represented by
the Lands Commission, assessed
the value of the remaining land
at ¢64,000.00 (sixty four
thousand cedis), but this sum of
money has not been paid as yet.
Nothing has been done to acquire
the land legally and the
plaintiffs continued to carry
out their farming activities on
the land; they led evidence that
they are the owners of the land
in dispute.
The
case of the
defendant/Appellant/Respondent:
It was that the Government
compulsorily acquired the land
in dispute and tendered the
certificate of acquisition in
evidence at the trial, marked as
Exhibit 1; it was
further stated that the land so
acquired, was part of the
Aerodrome extension acquisition.
It measured 5.689 square
miles or 3,548.246 acres,
which was registered under a
Certificate of title with the
Deeds Registry as No. 404/1944
and £8,540 was paid to the La
Mantse, £1,283,11.8d paid as
compensation for crops, huts and
cattle kraal, thus making a
total of £9,824.8.8d paid for
the acquisition of the land.
All these facts were admitted by
the defendant in his amended
statement of defense and
counterclaim filed on 2-3-11.
At the trial, (during
cross-examination), the
defendant, respondent herein,
admitted not being able to show
demarcations of the acquisition
on the ground, as pillars
marking them, had disappeared
due to recent developments on
the grounds. Simply put, the
defendant could not identify the
land acquired for the extension
of the aerodrome.
Order for the drawing of the
plan of the land:
In the course of the
proceedings, when the trial
court ordered a composite plan
of the area of land acquired by
the Government, among others, to
be made; the evidence revealed
that the survey was done without
any visit to the land, but was
rather made in the office; the
plans and a report thereon, were
tendered in evidence as
CW1 and CW2.
How the courts treated these
exhibits in their judgments will
be considered presently in this
opinion.
Judgment of the
trial court, and appeal to the
Court of Appeal:
At the end if the trial, the
High Court entered judgment in
favor of the plaintiff, and
found that the plaintiff’s
family’s land had been
wrongfully taken over by the
military who did not make any
payment to the family except
paying £30 (thirty pounds) for
only 18 out of 136.39 acres of
land in dispute; the defendant
was aggrieved with this judgment
and successfully appealed
against it to the Court of
Appeal, where judgment was
entered for the defendant and
its counterclaim upheld.
In Tuakwa v Bosom
[2001-2002] SCGLR 61,
this court considered a ground
of appeal that a decision of a
trial court was against weight
of evidence and held at page 65
that
“in such a case although it
is not the function of the
appellate court to evaluate the
veracity or otherwise of any
witness, it is incumbent upon an
appellate court, in a civil
case, to evaluate the veracity
in a civil case, to analyze 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 preponderance
of the probabilities, the
conclusions of the trial judge
are reasonably or amply
supported by the evidence.” See
also Bonney v Bonney 1992 GBR
779, re-emphasizing these
points of law.
case for the
plaintiff:
I shall consider and apply these
principles in my opinion in this
appeal and state that the
plaintiff appellant gave
evidence by his pleadings and
evidence on the acquisition of
title to the area of land they
claimed declaration of title to
and stated that: his family
acquired the land when it was
gifted to them as a reward for
the assistance they gave the La
Stool family which emerged
victorious in a war between a
combined force of Akuapems,
Akims and Fantes; they
continued to possess and use the
land as owners until 1944 when
the Colonial Government acquired
the land by virtue of the Public
Lands Ordinance, 1876, (Cap
134). The then Colonial
Government paid compensation to
the La Stool. The plaintiff
appellant received £30.00
(thirty pounds) for the La
Mantse, Adjei Onano V, for only
18 acres of land, leaving 136.89
acres unpaid for. After the
acquisition, the plaintiff’s
family continued to be on the
land.
The trial judge referred to
evidence in correspondence
tendered in evidence in the
exhibit D series
at the trial, and other
documents on their acquisition
of the land they laid title to,
and, found that:
“I have no iota of doubt in my
mind that the plaintiff’s land,
the subject matter in dispute,
no compensation had been paid to
the family.
Also, there is no doubt that the
said land belongs to the
plaintiff family, appellants
herein. The Lands Department
which is the repository of all
Land transactions in the
country, acknowledged that it,
and recognized the plaintiff’s
family as the owners of the land
in dispute. The Ministry of
Defense never said the land
belongs to another family nor it
has been acquired for them
already.”
The case of the defendant at the
trial:
The
defendant on the other hand,
pleaded they owned the land they
claimed; they pleaded and led
evidence in support that the
State owned the 5.689 square
miles of land covered by the
Certificate of Title registered
in 1944 for which compensation
had been paid for already. The
Certificate of Title was
registered as No. 404/1944 for
extension of the existing
airfield; it was also submitted
that legally, the Certificate of
Title constituted sufficient
proof of statutory ownership of
the land it covered, without any
further assurance; for all this
the trial High Court held that
the land in dispute had not been
acquired by the Government
because compensation had not
been paid to the land owners and
the plaintiff entitled to his
claims.
In an action for declaration of
title to land, plaintiff bears
the onus of proof of the
ownership of the land claimed by
him. He ought to prove how he
acquired title to the land. The
defendant counterclaimant in
this appeal also bore the onus
to prove he was entitled to the
declaration of title to the
piece of land they claimed.
The plaintiff argued grounds
‘b’ and
‘c’ of appeal (above),
together in his statement of
case.
In this appeal, the Court of
Appeal set aside findings of
facts made by the trial court
and substituted them by its own
facts. The practice in law is
that when an appeal was lodged
against the judgment of the
Court of Appeal to a second
appellate court like this court,
then this court is obliged to
reconsider all the evidence led
on record and arrive at its own
facts. This principle of law was
supported by Akuffo Addo
v Cathline [1992] 1 GLR
377, where the court
said at 394 that:
“since the courts
have made different findings of
facts based on the same
evidence, I do not suppose this
court can be denied the right to
make its own assessment of the
case as a whole. It is not only
sensible thing to do but it is a
matter of judicial obligation
embedded or rooted in rules
having force of statutes.”
The appellant submitted that the
trial court found that the
plaintiff had led credible
evidence on how the family
acquired the land in dispute
from the La Mantse and tendered
exhibit B, (the indenture,
also called the
surrenderer/beneficiary),
from the allodial title
holder, to wit, the La Mantse;
he also led evidence to show
that the acquisition made in
1944, affected only 18 acres of
land for which a receipt was
issued to show that only £30.00
(thirty pounds) was paid to the
family. Exhibit ‘B’,
dated 20th June 1985,
and Exhibit ‘C’,
dated 19th November
1946, were tendered in evidence
to support these facts. Exhibit
‘C’, was an ancient
document which ipso facto
proved itself by the operation
of law. I quote exhibit ‘C’
in full hereunder as follows:
“Exhibit C”
LET ALL MEN KNOW today that I,
NII ANYATEI ONANO V, La Mantse,
known in private life as Mankata
Odoi Sowah, have come to
agreement with NII ANYATEI JONKA
lawful representatives of Nii
Kofi-La Family of La Abese to
pay an amount of £30.00 (thirty
pounds), being full payment of
his family land affected by
Airport extension acquisition
after the initial demand of
£60:00 (sixty pounds), had been
dropped by the family after
intensive negotiations since the
land affected, is only 18.0 Acres.”
Exhibit ‘C’ was
signed by Nii Anyetei Jonka as
head of the Nii Kofi-La family,
Nii Adjei Onano V as the Mantse
of Labadi, and witnessed by
certain personalities described
on the face of the exhibit as
principal members of family.
The plaintiff also led evidence
to show efforts by the
Government to acquire the
remaining parcels of land at
North of Arakan Barracks, for
the Ghana Army. There were
negotiations for that purpose
between the Government/Army and
the family confirmed by the
evidence tendered at the trial
marked as the exhibit D
series. Even though the
plaintiffs’ family still farmed
the land, the Ghana Army was
given permission to use the land
for their training activities
and it was for these reasons
that the trial judge found that
the land in dispute belonged to
the plaintiff’s family.
Grounds
‘b’, and ‘c’
of appeal:
It is trite learning that a
finding of fact by a trial court
could be set aside or disturbed
on appeal only if the facts or
findings were not supported by
the evidence on record. In this
appeal, the appellant submitted
that, the Court of Appeal never
made any finding of fact even
though the appeal before it was
a rehearing; the court only
based itself on presumptions of
regularity of official acts,
which in law are at best,
rebuttable presumptions. They
are covered by section 37(1) of
the Evidence Decree, 1975, NRCD
323, (now Act) fully quoted
hereunder, as follows:
“(1) It is presumed
that official duty has been
regularly performed.”
As stated, section 37 (1) of the
Evidence Act, (supra), creates a
presumption which can be
rebutted by other credible
evidence on the record. After
all, rebuttable evidence
means, according to Black’s
Dictionary of Law, Eighth
edition, at page 1224; an
inference drawn from certain
facts that establish a prima
facie case, which can be
overcome by the introduction of
contrary evidence.
In his ‘The Ghana Law of
Evidence’ by J.
Ofori-Boateng, the learned
author, an eminent jurist, and a
retired Justice of the Supreme
Court, wrote at page 26 that:
“rebuttable presumptions arise
when a preliminary fact
has been established and the law
provides that on the
establishment of that
preliminary fact, some
conclusions should be
drawn…..but in a rebuttable
presumption, the conclusion
required by law to be drawn
after the proof of the necessary
preliminary facts, is deemed to
be only prima facie. This is to
say, as provided by section 20
of the Decree (now Law), which
says that
“A rebuttable
presumption imposes upon the
party against whom it operates
the burden of producing
evidence, to establish to the
court that the presumed
conclusion does not exist.”
This presumption is rendered
with flourishes in ‘Latinism’
as “Omnia praesumuntur rite
et solemniter esse acta donec
probitur in contrarium”,
literally meaning: “All
things are presumed to have been
done regularly and with
due formality, until the
contrary is proved.”
The Court of Appeal said of this
presumption that: “I do not
think the absence of evidence on
record as to when, how, why the
words were inserted leaves the
position helpless. By section
37(1) of the Evidence Act, 1975,
NRCD 323, an official duty is
presumed to have been regularly
performed and there is also the
Latin maxim “omnia praesumuntur
rite esse acta”, which expresses
in summary form, the principle
that where there is proof of the
performance of an official act,
until the contrary is proved,
that act is presumed to have
been done in compliance with the
necessary formalities and the
person who did it is presumed to
have been duly appointed.
A presumption of an even greater
relevance in the present
case, is that if a deed contains
an alteration or insertion, ….
then it was made before
execution…”
“Also the
Latin maxim …which expresses in
summary form the principle that
where there is proof of the
performance of an official act,
until the contrary is proved,
that act is presumed to have
been done in compliance with the
necessary formalities and the
person who did it is presumed to
have been duly
appointed.”
The Court of Appeal went on to
state that: “A presumption of an
even greater relevance in the
present case is that which
states that if a deed contains
an alteration or insertion, it
is presumed that the alteration
or insertion was made before
execution…As stated
above, the Certificate of Title,
Exhibit 1, is an ancient
document and it proves itself.
The presumption that an
insertion in the deed was made
before the Certificate of Title
was executed on 1st September,
1944, and by virtue of, section
37(1) of NRCD 323, or on
the principle of “omnia
praesumuntur, esse rite acta” …
it is presumed to have been
regularly made.
The reasons given by the Court
of Appeal for making that
presumption were that the
certificate was tendered through
an official of the Survey and
Mapping Division of the Lands
Commission, and produced from
official and proper custody. In
the circumstances, as there was
no evidence to the contrary of
these facts, it raised the
presumption that the insertion
was made regularly or was made
after execution of the
certificate. The words: “See
plan no. Y575”, ex facie the
certificate of title were very
much a part of the certificate
whose validity was acknowledged
as an ancient document.
The Court of Appeal
proceeded from there to consider
that the boundary of the
acquired land was shown edged
with pink color on a plan marked
numbered X1840, thereto,
followed by the words “See Plan
No. X575”. It construed these
words to mean, to find the plan
numbered X1840, (attached
thereto), or the land that it
identifies, you must look for
the plan numbered Y575. In other
words, if you see Plan No Y575,
you have found the land that
plan numbered X1840, identifies.
According to the Court of
Appeal, it meant then that the
trial court erred when it found
that the use of plan number Y575
was a void enterprise not
backed by any mandate. That
was because the trial court
ordered for the superimposition
of the plans in the summons for
directions in the following
terms:
Order
for the composite plan: At the
summons for directions stage the
tria;l court ordered that:
“The
Regional Director, Survey and
Mapping Division of the Lands
Commission, Accra is to draw a
composite plan and show the
following:
a) The land covered by the
Government acquisition for the
Airport.
b) The plaintiff should also
show the land that they claim is
not covered by the Government
acquisition.
c) The land that the plaintiff
claims to be covered by the
Government acquisition”.
By these directions at the
summons for directions, the
trial court erred very much when
he held that there was no
direction for the enterprise to
be carried out. I agree with the
Court of Appeal when it
concluded that there was
authority given to the witness
who produced and tendered the
report on the survey in evidence
as exhibits CW1 and CW2. The
Court of Appeal said after
studying the exhibits it found
that: “On Exhibit CW1, I find
from the legend that the land
for the Aerodrome extension is
edged with blue color,
while the land claimed by the
Nii Kofi-La family is edged with
red color. All that part
of the vast edged red on the
exhibit which has been hatched
with blue color falls
within the land acquired in 1944
for the aerodrome extension.”
For which reason, the enterprise
was not void, as held by the
trial court. In the
circumstances, the Court of
Appeal was right to have used
the presumptions provided by the
law referred to and applied in
the circumstances.
Consequently, due to what I have
said above, grounds ‘b’, ‘c’ and
‘e’ of appeal are
dismissed.
At the trial the burden fell on
the plaintiff and the defendant,
who sued or counterclaimed
respectively, for a declaration
of title to the piece of land
they claimed, to prove on the
preponderance of the
probabilities, the mode of
acquisition of the area in
dispute.
I have quoted section 137 of the
Evidence Act NRCD 323, on
rebuttable presumptions and now
I wish to state further that for
its full effect and explanation,
I further quote section 20 of
the Decree, (now Act), hereunder
that: “A rebuttable
presumption imposes upon the
party against whom it operates,
the burden of producing evidence
and the burden of persuasion as
to the non-existence of the
presumed fact.”
In
this appeal, the plaintiffs’
evidence established that the
defendant made efforts to
acquire the land but did not
succeed, for, they did not pay
the requisite amount of
compensation for the
acquisition.
In his judgment, the learned
trial judge said, after
dismissing the defendant’s
counterclaim, that: “Further, I
hold that, the plaintiff’s
family’s land had been
wrongfully taken over by the
military. No compensation had
been paid the family except for
the 18 acres which was £30. It
is my considered opinion that
the land in dispute covering an
approximate area of 136.39 acres
is adjudged to be for the
plaintiffs family.”
Judgment of the Court
of Appeal:
On appeal against the judgment
of the High Court, the Court of
Appeal considered the judgment
of the trial court to be wrong,
allowed the appeal before it and
set it aside, and entered
judgment for the defendant in
favor of its counterclaim. In
the unanimous judgment of the
Court, the learned Aduama Osei
JA wrote that: “After a full
consideration of the judgment of
the trial Court, I am clear in
my mind that it was wrong and I
consider this a proper case for
the substitution of conclusions
made by the trial court with
those of the appellate court. I
will therefore allow this appeal
and set aside the judgment of
the trial court. The claim of
the respondent is hereby
dismissed and judgment is
entered in favor of the
appellant on his
counterclaim.”
The issue then was which could
be more right than the other on
the issue of whether or not any
compensation was paid for the
acquisition of the land in
dispute.
The trial court found no
compensation had been paid for
the acquisition of the land; but
the appellate Court of Appeal
found otherwise. The Court of
Appeal made no express finding
for or against the allegation
that the Government made any
payment for the acquisition of
the land in dispute or any part
thereof. However the evidence on
record in exhibit ‘C’
(supra), showed an
amount of £30 (thirty pounds)
was paid for the acquisition of
land for the extension of the
aerodrome.
At the Court of Appeal, the
finding by the trial court that
the Military had wrongfully
taken over the respondents,
(appellant herein), land was
attacked by counsel for the
appellant who contended that a
certificate of title issued and
signed by the Registrar and a
judge of the Superior Court, was
conclusive proof of the State’s
ownership of the land covered by
the certificate. The composite
plan ordered by the court also
showed that the land in dispute
fell within the land covered by
the certificate of title.
The defendant respondent
submitted that there were two
inconsistencies in the case of
the appellants which he
explained was due to two
different site plans tendered in
evidence. None of them conformed
to the schedule to the deed of
surrender in evidence; the
schedule was planned about ten
years after the date of
execution of the deed itself.
The other criticism was the
reference to farming activities
being carried out on the land in
dispute cited as an act of
ownership of the land in
dispute. Reference was made to
the fact that people farm on
lands they do not own, or,
occupy vacant public lands
without any interference by or
from the rightful owners, or any
adverse claims being made
despite the duration of the
adverse possession and so even
if the possession was a criminal
activity under the Public Lands
(Protection) Act, 1974, NRCD
240, (an Act to provide for the
protection of public lands and
for relevant matters,) section 2
of which provided that:
“2 Unlawful
occupation of public land.
A trespasser who, without
reasonable excuse the proof of
which lies on the trespasser,
occupies or encroaches on or
interferes with a public land,
commits an offence and is liable
on summary conviction to a term
of imprisonment not exceeding
three years, or to a fine not
exceeding seven hundred and
fifty penalty units.”
In other words, activities like
unlawful occupation of public
lands are criminalized and upon
conviction by a court of
competent jurisdiction, are
punishable by fines being
imposed on guilty ones.
Ground ‘e’ of appeal: The
composite plan in exhibits CW1
and CW2:
The issue thrown out by this
ground of appeal was: as between
the decisions of the trial court
and the Court of Appeal which
was more supported by the
evidence in its findings on the
validity of these exhibits?
I must observe firstly, that
these exhibits were ordered by
the trial court but when
tendered in evidence at the
trial they were rejected for the
reasons that pertain to their
usefulness; the plan was
prepared by superimposing the
site plan for the 136.39 acres
claimed by the plaintiff
appellant in their statement of
claim on the larger 5.6 square
miles claimed by the defendant
respondent.
It was also submitted by the
respondent that the land
acquired in 1944 was declared to
be for the plaintiff at the
trial, and the legal effect
thereof was to effectively
revoke the Certificate of Title
issued by the Executive, an act
that was made without
jurisdiction to do so in law;
reference was made in connection
herewith to the case of
Republic v High Court, Accra; ex
parte Attorney General (Titriku
I & Others interested parties)
[2007-2008] SCGLR 665, where
this court held in the classic
words of the inimitable Dr
Date-Bah JSC that:
“(1) the High Court
being a court of general
jurisdiction, has jurisdiction
to construe the two impugned
legislative instruments being
ordinary legislation, namely,
the Local Government (Dangme
District Assembly)
(Establishment) Instrument, 1989
(LI 1490) and and the Local
Government (Manya Krobo District
Assembly) Establishment
Instrument,1989 (LI 1492).
However, under article 130
(1)(b) of the 1992 Constitution,
even when ordinary legislation
is involved it is the Supreme
Court and not the High Court
which has has exclusive
jurisdiction in “all matters
arising as to
whether an enactment was made
in excess of the powers
conferred on Parliament or any
other authority or person by
law or under the constitution.”
Applying the authority in the
case last cited to the facts in
this appeal, I believe in law,
the trial High Court Judge
lacked jurisdiction to challenge
or do anything to suggest a
challenge to the authority and
efficacy of the Land Title
Certificate issued by the
government to acquire the land
in question in 1944.
Grounds (b) and
(c) of Appeal stated
above, were argued together and
the Court of Appeal held that
the findings by the learned High
Court judge were not supported
by the evidence on record.
When these grounds of appeal are
examined properly, the evidence
of the plaintiff was that the
Certificate of Title registered
as No. 404/1944 affected only 18
acres of plaintiffs land but
when the family attempted to
register the remaining 136.39
acres it was told that was part
of the 1944 acquisition and this
gave rise to the action before
the High Court, now on appeal
before this court.
The dominant issue in this
appeal and indeed even the whole
trial is, could that be true?
The Court of Appeal held that
the findings of fact by the
trial court were not supported
by the evidence on record, for
when examined as properly as
they should, it would be found
that the assertions by the
appellant (plaintiff at the
trial court), were not proved on
the preponderance of the balance
of the probabilities; the reason
being that, (1): there were
conflicts in exhibit B,
the deed of surrender; (2) no
reference to an earlier grant by
the ‘surrenderor’ made in favor
of the ‘surrenderee’, (3) nor
any mention made in the recitals
of the Deed that an earlier
grant had been made of the land.
Also, (4) the deed was executed
in 20th January 1985, between
Nii Anyatei Kwakwranya II, La
Mantse (also called The
Surrenderer/grantor in exhibit
B), and Nii Annan Ashong, head
of head of Nii Kofi-La family of
La, but the site plan attached
to it was prepared on 2nd April
2004, that was more than a year
after the execution of the deed.
(5) It was also alleged there
were conflicts in the deed on
the description of the land in
the schedule (to the deed), and
the description of the
boundaries of the land; and
further (6) the deed of
surrender was a six sided piece
of land measuring 136.39 acres;
but the appellants’ site plan
was 10 sided and interestingly
also measured the same 136.39
acres. There were discrepancies
to the deed as compared to the
site-plan, making it impossible
to calculate its size. These
conflicts operated against
raising the presumption by the
Court of Appeal.
There were certain facts made
quite clear or put beyond any
controversy in the trial of this
suit. One of them was that in
1944, the Colonial Government
compulsorily acquired a piece of
land under the Public Lands
Ordinance 1876, Cap 134, for
public use, and for which a
Certificate of Title was issued.
The legal effect of a
Certificate of Title:
By the provisions of Cap 134, a
Certificate of Title has certain
legal consequences flowing from
it, notable, among them being
that once it was issued, it
conferred an absolute and
indefeasible right to the land
referred to in the certificate,
against all persons free from
all adverse or competing rights,
titles, interests and claims.
The mere production thereof
before any court constituted an
absolute bar or an estoppel
against any proceedings before a
court, casting an impregnable
torpedo against any such claims
and actions in respect of the
land so acquired, or, in
dispute. Reference is made to
sections 12(1) and (2) of the
law in Cap 134, reproduced
hereunder as follows:
“The Commissioner of Lands on
behalf of the Governor, shall at
any time on production in [the]
Supreme Court of a conveyance to
any lands or at any time after
the date of the service and
publication of the notice
mentioned in sections 5 and 6,
upon proof of such service and
publication, be entitled to
receive a Certificate of Title
to the lands described in the
said conveyance or notice which
certificate may be in the Form
C of the Schedule
and shall have the following
effects and qualities:
(1) The certificate shall not be
questioned or (made) defeasible
by reason of any irregularity or
error or defect in the notice,
or want of notice, or of any
other irregularity, error or
defect in the proceedings
previous to the obtaining of
such certificate.
(2) It shall confer to the
Governor to whom such
certificate shall be given, and
on every succeeding Governor for
the time being in trust for Her
Majesty for the Public Service
of Gold Coast, an indefeasible
right to the lands comprised or
referred to therein against all
persons, and be free from all
adverse or competing rights,
titles, trusts claims and demand
whatsoever.”
In In Re the Public Lands
(Leasehold) Ordinance and In Re
land acquired at Accra for
Public Works Department
workshop; Osu Mantse and others
(claimants) [1959] GLR 163,
Ollennu J (as he then was),
considered the effect of the law
on the acquisition of lands
under the law in (cap 134) and
held that: “Under Section 11 of
the Public Lands Ordinance, the
acquisition operates to ‘bar and
to destroy all other estates,
rights, titles, remainders,
reversions, limitations, trusts,
and interests whatsoever of and
in the lands” acquired; claims
and demands whatsoever of and in
the lands” acquired; and in
virtue of section 12, a
Certificate of Title issued by
the Court issued in respect of
the lands acquired, confers upon
the Governor-General to whom it
is issued an absolute and
indefeasible right to the
lands…free from demands
whatsoever.” Similarly, section
10 of the Public Lands
(Leasehold) Ordinance provides
that a Certificate of Title
granted by the Court under that
Ordinance shall “confer upon the
Governor-General … an absolute
and indefeasible right to the
land,… free from all adverse or
conflicting rights, interests,
trusts, claims and demands
whatsoever.”
There was evidence on record
that the land in dispute was
covered by a ‘Certificate of
Title’, numbered 404/1944; the
Certificate of Title to the land
in question, marked Exhibit 1 at
the trial, was tendered in
evidence by Peter Opoku, a
Principal Staff Surveyor of the
Lands Commission, which, covered
an area of 5.6 square miles.
The trial court made the
following orders in the course
of the trial that: The Regional
Director Survey and Mapping
Division of the Lands Division,
Accra is to draw a
Composite Plan and show
the following:
“a. the land covered
by the Government acquisition
for the airport;
b. the plaintiff
should also show the land that
they claim is not covered by the
government acquisition
c. the land that the
plaintiff claim to be covered by
the Government acquisition.”
The Regional Director Survey and
Mapping Division of the Lands
Commission Accra, the
representative of the Regional
Surveyor, tendered the composite
plan in evidence as CW1 and CW2,
for the report and plan
respectively. In assessing the
weight to attach to these
exhibits the trial judge
observed that the regional
director admitted under cross
examination that he did not go
to the field but did the work
assigned to him in his office
and also that pillars marking
the boundaries on the land had
all been removed due to
development works going on, in
the area.
The learned trial judge
discussed the maps tendered
before him and after digressing
into other matters, referred to
the demarcations by both parties
on their claims and
counterclaims respectively;
Exhibit B, was for the plaintiff
and Exhibit 1, the defendant. He
observed that exhibit 1 quoted a
plan numbered X1840 and carried
or bore an inscription
‘See plan no. Y 575’, on
its face. The trial judge
observed or confessed he did not
have the benefit of looking at
this document, plan number Y575,
for the reasons that it was not
tendered in evidence and so no
evidence was led on it. He
expressed surprise that the
representative of the Director
of Survey could still purport to
use this exhibit to do the
super-imposition he was
requested by the court to do. To
the trial court, if the witness
had encountered any difficulty
in discharging the assignment
entrusted to him, he could have
come back to the court for
further directives; but there
was no evidence he did so. This
failure attracted a sharp rebuke
and a disapproval by the court
expressed in the ‘ipsisima
verba’ of the court that:
“What he did as best can be
described as a void enterprise
not backed by any mandate.”
There can be little or no doubt
that for a plaintiff or a
counterclaimant to succeed in an
action for a declaration of
title to land, ‘it is his/her
first duty to clearly show the
area of land to which his
claim/counterclaim relate’; see
Gawu III v Ponuku [1960] GLR
101 at 103; Kwabena v Atuahene
[1981] GLR 136 at 144;
Nyikplorkplo v Agbodotor
[1987-88] 1 GLR 165, CA; Anane v
Donkor [1965] GLR 188 at 192,
where Ollennu JSC stated the
rational for that holding – so
that an order for possession can
be executed without difficulty …
Thus in actions for
declaration of title to lands,
charts, maps, surveys and plans,
play pivotal roles in
determining issues at stake, for
they are presumed to be
authentic, and section 153 of
the Evidence Act provided that:
“153. All maps, or charts made
under the authority of a public
entity, and not made for the
purpose of any litigated
questions, are presumed to be
authentic and correct.”
In this appeal the trial judge
made the order for the plan for
the area in dispute to be made
for the court as indicated by
the respective parties. The
plans were made and tendered in
evidence as CW1 and CW2; however
they were rejected by the judge
for reasons stated by him.
The Court of Appeal held that
contrary to what the trial court
found, the land covered by the
Government acquisition was shown
on the composite plan and was
described on the Certificate of
Title as plan No.Y575 and as
such the witness acted within
his mandate when he used plan no
Y575 for the superimposition and
therefore the outcome was so
valid and regular as it could be
used in determining the issue
whether or not the certificate
of Title issued in 1944, that
was to say CW1, covered the 136
acres of land tendered before
the trial court; and therefore
trial court erred in rejecting
what he ordered to be done for
him. The appellate court then
accepted the plan and report in
Exhibit CW1 and CW2.
For this reason the Court of
Appeal found for itself that the
land claimed by the appellant
fell within the acquired land;
hence the appellant was by
virtue of the Land Title
Certificate it held, entitled to
the protection afforded by the
Public Lands Ordinance, to wit,
“freedom from all adverse or
competing rights titles
interests trusts claims and
demands whatsoever”.
Grounds ‘e’ and ‘f’ of appeal:
Exhibits CW1 and CW2 were the
report on the composite plan by
the Director of Surveys prepared
from the Aerodrome Extension
plan number Y575 with LS NO.
481/144, with the results
according to the legend on CW1,
that:
“1 The boundary edged
BLUE is the Aerodrome Extension;
(belonging to the Ghana Armed
Forces)
2 The boundary edged
GREEN is registered by Dade
Kotopon Trust;
3 The boundary edged
RED is the Nii Kofi-La Family
plan;
4 The area hatched is
the portion in conflict with the
aerodrome Extension.”
It ought to be borne in mind
that the trial court rejected
the report and the composite
plan of the surveyor, that was
to say, CW1 and CW2. The
argument made was that the trial
court rejected CW1 and held that
the military had wrongfully
taken over lands belonging to
the plaintiff.
At the Court of Appeal counsel
for the respondent argued that
the plan used to represent the
land acquired in 1944, was made
after the acquisition and the
Certificate of Title had been
issued after the acquisition, so
it could not be used to support
the attempt to extend the area
acquired to cover the family
land. However, the Court of
Appeal did not find any favor
with that submission, for, the
court did not find anything
unusual about the Certificate;
rather, the Court found that the
title certificate was validly
and regularly made and exhibit
plan Number Y575 was used in
preparing Exhibit CW1.
In the result, the Court of
Appeal was right in accepting
and drawing inferences from
exhibits CW1 and CW2 and the
appeal on ground ‘e’ is
dismissed.
We have to consider under this
ground of appeal, the
interpretation the Court of
Appeal gave to plan Y575 and
plan X1840 on the land
certificate.
I, at this stage, refer to
comments made on grounds (b)
and (c) above in relation
to the maps in exhibits CW1 and
CW2 already and with that I do
not think the submissions on
these grounds of appeal have any
merits in them. Those grounds of
appeal are accordingly dismissed
as lacking any merit.
The first appellate Court made
an express finding of fact that
from the exhibit before it,
apart from a small portion of
the land on the south-west, the
land claimed by the Nii Kofi-La
family, falls within the
acquired area. The appellate
Court of Appeal held that there
was no basis for contending that
unlike the plaintiff, appellant
at the Court of Appeal, the
defendant at the trial, was not
entitled to protection under the
provisions of the Public Lands
Ordinance. Section 12 (2) and
(4) (supra), were referred to in
support of these legal
inferences.
CONCLUSION:
After considering the appeal on
its merits, the court of Appeal
held that the conclusions by the
trial court in its judgment were
wrong; in my view, there could
be no doubt the appellate court
was right in its conclusions. We
affirm the judgment by the Court
of Appeal and dismiss the claims
of the appellant, plaintiff at
the trial High Court; we enter
judgment in favor of the
defendant, respondent at the
Court of Appeal, on his
counterclaim.
The Appeal is dismissed.
(SGD) J. ANSAH
JUSTICE OF THE SUPREME COURT
(SGD) V. J. M.
DOTSE
JUSTICE OF THE SUPREME COURT
(SGD) ANIN YEBOAH
JUSTICE OF THE SUPREME COUR
(SGD)
P. BAFFOE BONNIE
JUSTICE OF THE SUPREME COURT
(SGD) V. AKOTO BAMFO (MRS)
JUSTICE
OF THE SUPREME COURT
COUNSEL
KENNETH KUDJORDZIEE ESQ. FOR THE
PLAINTIFF/RESPONDENT/APPELLANT.
GRACE OPPONG ESQ. (SENIOR STATE
ATTORNEY) FOR THE DEFENDANT/
APPELLANT/RESPONDENT.
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