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JUDGMENT
TWUMASI, J.A.:
This is an appeal from the
judgment of the Circuit Court;
Accra delivered on 14th January
1999. The appellant purchased a
piece of land from the chief of
Okponglo sometime in 1992. The
evidence showed that in exercise
of its executive powers the
Government of the Gold Coast (as
it then was) had already
compulsorily acquired large
tract of land engulfing this
parcel of land purchased by the
appellant.
Pursuant to the said acquisition
the Lands Commission granted the
respondent herein a lease of a
portion of the land for
residential purposes because it
turned out that the project for
which the government acquired
the land could not materialise.
However, in the supervening
period the Land Registry had
apparently due to oversight or
call it a mistake which that
institution in fact admitted at
the trial issued title
certificate to the appellant in
respect of the sale transaction
concluded between him and the
chief of Okponglo.
The Lands Commission accordingly
applied to the Court for and was
granted an order for joinder
constituting it as co-defendant
in an action in which the
respondent sued the man to whom
the Land Commission granted the
lease. The Land Commission as
co-defendant counter-claimed for
an order directing the Chief
Registrar of Lands to rectify
the register by the cancellation
of the respondent’s title
certificate, declaration of
title and damages for trespass.
The respondent had by his
indorsement on the writ of
summons laid claim for (1) a
declaration of title, recovery
of possession, perpetual
injunction and ¢2 million
damages for trespass.
The learned trial judge made the
following explicit findings of
fact:
(a) That the land in dispute
fell within the acquisition
area.
(b) The alleged grant by the
chief of Okponglo to the
respondent was unlawful and
void.
(c) The title certificate issued
to the respondent by the Land
Title Registry was in error and
consequently void.
He accordingly dismissed the
respondent’s action and entered
judgment for the defendant (the
lessee of the Lands Commission)
respondent herein, but denied
him the claim for damages for
trespass. On the 16th February,
1999 the respondent filed notice
of his intention to contend that
the decision of the court below
be varied by entering judgment
in his favour for damages and
costs for the relief which the
learned trial judge declined.
The appellant filed no less than
fourteen grounds of appeal but
only six of them were argued,
thus inferentially abandoning
those not canvassed before this
court.
Counsel began with additional
ground (1) impeaching the
alteration of Certificate of
Title No.404/44. Counsel
submitted that the learned trial
judge effected the amendment suo
motu but upon reading the record
of appeal I found abundant
evidence that a formal
application for the amendment
was made and arguments canvassed
before the trial judge, after he
had admirably considered the
authorities including the case
of Yeboah vrs Bofour (1971) 2
GLR.199 C.A. and Order 28 of
LN.140A and delivered a sound
ruling on the application. I
find no merit in additional
grounds (1) and (2). Ground 3 of
the grounds of appeal in essence
accused the trial Judge of suo
motu setting aside the
respondent’s certificate of
title to the disputed land on
grounds of mistake when, as
counsel put it, the respondent
and co-respondent had based
their case on fraud. In the
first place there was ample
evidence on record from which
allegation of mistake or
inadvertence could be inferred
from the conduct and omissions
of the Land Registry. With
regard to fraud, the appellant
undeniably made allegations of
fraud or dishonesty against the
respondent and accused him of
misconduct in the procurement of
land registration certificate
through lies and distorted facts
in certain correspondence. It
seems to me legitimate that the
learned trial judge dealt
adequately with fraudulent
registration.
On the submission that the
respondent's title was
indefeasible and that the
learned trial judge erred in
declaring it void it is
sufficient to refer to section
122(1) of the Land Title
Registration Law 1985
(PNDCL.152). That section
provides that: —
“122 (1) Subject to subsection
(2) of this section the court
may in its discretion, order the
rectification of the land
register by directing that any
registration be cancelled or
amended where it is satisfied
that such registration has been
obtained, made or committed by
fraud or mistake.
Subsection (2) is inapplicable
to this case and I need not
quote it. This ground of appeal
also fails. The next important
issue to deal with relates to
the location of the disputed
land. The learned trial judge
made explicit finding that the
land fell within the acquisition
area and this finding has been
assailed under ground (e). In my
considered opinion this finding
cannot be faulted because it was
supported by ample evidence
given by C.W.1 (Court witness
No.1) the surveyor and the
respondent’s own expert witness
P.W.2 who corroborated the
testimony of C.W.1. The law is
well-settled that where a
party’s own witness supports the
case of his opponent while his
own remains uncorroborated a
court of law must uphold the
corroborated evidence and enter
judgment on that basis: See
Tsirifo vrs: Duah VIII (1959)
GLR.63. The last ground of
appeal states that the learned
trial judge erred in holding
that the co-defendant was the
only authority to grant the land
in dispute when the co-defendant
failed to offer evidence that
the conditions set out in
article 18(4) and (5) of the
Constitution 1969 had been
fufilled.
The co-defendant Land Commission
is a Public Officer. The
presumption “Omnia preaesumuntur
rite esse acta’ operates in
their favour and it presumed
until the contrary is proved
that public functions or duties
have been regularly performed:
See section 37 of the Evidence
Decree, 1975 (NRCD.323) and
Woollett vrs: Minister of
Agriculture and Fisheries (1955)
IQB.103 CA: (1954) 3 All ER.529.
There was therefore no need for
the co-defendant to offer
evidence to the effect that that
condition had been fulfilled by
it. In any event as counsel for
the respondent submitted and
rightly in my view, by virtue of
the compulsory acquisition of
the land the interest of the
state automatically superceded
all other interests: See S.12 of
the Public Lands Ordinance
(Cap.134). In the case of Mensah
Moncar vrs: Chieftaincy (1972) 2
GLR.293 the following headnote
appears: —
(2) Where a notice of
acquisition property is
published in the Gazette, a
subject with interest in the
property has no right to convey
the title to the land to anyone
without the consent of the
government. Any purported
conveyance by vendor without the
said consent will be void
irrespective of the fact that
the conveyance is registered
with the Deeds Registry”.
It appears quite clear that the
above decision by the High Court
is unassailable. It should in
law seal the doom of the
respondent’s case, particularly
all the arguments about the
registration of the respondent’s
title and the validity of the
conveyance itself by the chief
of Okponglo. This ground of
appeal also fails. The appeal is
hereby dismissed. However with
respect to damages claimed by
the respondent I find no good
grounds to disturb the trial
judge’s refusal. I therefore
refuse the application to vary
the judgment of the court below.
P.K. TWUMASI
JUSTICE OF APPEAL
BENIN, J.A.:
I agree.
A. A. BENIN
JUSTICE OF APPEAL
FARKYE, J.A.:
I also agree.
S.T. FARKYE
JUSTICE OF APPEAL |
