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Land - Ownership of the land -
Recovery of possession - Order
to demolish - Whether or not the
Plaintiff was an innocent
purchaser for value without
notice- Whether or not the
judgment is against the weight
of the evidence
HEADNOTES
It is the case of the Plaintiff
that she acquired the land in
dispute from the Ashale Botwe
Family in 1988 and went into
possession by occupying same
over the years to prevent
encroachment. The plaintiff then
constructed a reservoir on the
land and built a wall around the
land. The Plaintiff states that
the lessors delayed in preparing
the indenture to the land but
have recently prepared same
which is dated 6th
December, 2009. The Plaintiff
states that the adjoining land
belongs to her Attorney who is
her mother and both were
acquired at the same time and
the attorney went ahead to
develop her land and now lives
there. The plaintiff claims that
on or about 10th
October, 2010 she noticed that
the defendant was digging
trenches in the nature of a
foundation in complete disregard
to the fact that there was a
reservoir and a wall around it.
The Plaintiff protested
immediately by among other
things writing on the inside and
outside of the wall that “THIS
LAND IS NOT FOR SALE” but
the defendant refused to heed
the protest and in about six
days developed the land within
the wall to lintel level. It is
the case of the Defendant that
the disputed land was acquired
from Beatrice M. Ogah, Andrews
Kwesi Amanor, Caroline Amanor,
Bether Amanor and Dorothy Amanor
by an indenture dated 1st
July, 2006. His grantors also
acquired the land from Numo
Nmashie family of Teshie who are
the lawful owners of a large
track of land including the
disputed land. He registered his
interest in the land and
proceeded to develop it. It is
the case of the Defendant that
the disputed land forms part of
a larger track of land in which
the Supreme Court declared
Okpelor Sowa Din Family of
Teshie as owners of the land. It
is the case of the Defendant
that the grantors of the
plaintiff are not the owners of
the land and can therefore not
make any valid alienation to the
plaintiff. The trial High court
after hearing the case gave
judgment to the defendant The
judgment of the trial High Court
was thus set aside by the Court
of Appeal, The Defendant
dissatisfied with the judgment
of the Court of Appeal, appealed
to this Court
HELD
In the premises, the appeal
herein against the Court of
Appeal decision of 12th
March 2015 fails in its entirety
and is accordingly dismissed.
We accordingly affirm the Court
of Appeal decision of even date,
and enter judgment in favour of
the Plaintiff on all her reliefs
as granted by the Court of
Appeal, and order the Plaintiff
as the owner of the land
described in Schedule “A”.
STATUTES REFERRED TO IN JUDGMENT
CASES REFERRED TO IN JUDGMENT
In Re Ashalley Botwe Lands;
Adjetey Agbosu and Others vs
Kotey and Ors (2003-2004) SCGLR
420
Attram vs Aryee (1965) GLR 341
West Africa Enterprises Ltd v
Western Hardwood Enterprise Ltd
(1995-96) 1 GLR 155
Tuakwa vs Bosom [2001-2002]
SCGLR 61.
Fosua and Adu Poku vs Dufie
(Deceased) and Adu-Poku Mensah
(2009) SCGLR 310
Klu vs Konadu Apraku (2009)
SCGLR 741
Praka v Ketewa [1964] GLR 423
(SC)
Achoro & Anr v Akenfela & Anr
[1996-97]SCGLR 209,
Koglex Ltd (No 2) v Fields
[2000]SCGLR 175
Awuku Sao v Ghana Supply Co.
Ltd. [2009] SCGLR 710,
Gregory vs Tandoh &Hanson [2010]
SCGLR971,
Obeng v Assemblies of God Church
Ghana [2010] SCGLR 300
Roland Kofi Dwamena v Richard
Nortey Otoo Civil Appeal No
J4/47/2018, 8th May
2019
Akufo Addo v Catheline [1992]
1GLR 377 S.C.
Djin v Musa Bako [2007-2008] 1
SCGLR 686.
Faibi v State Hotels Corporation
[1968] GLR 471
Serwah v Kesse (1960) GLR 227;
Zabrama v Segbedzi (1991) 2 GLR
221.
Mensah v Peniana [1972] 1GLR 337.
The Registered Trustees of the
Catholic Church vrs BUILDAF
Limited and two others Civil
Appeal No J4/30/2014 dated 25th
June 2015
Rosina Aryee vrs Shell Ghana Ltd
& Anor Civil Appeal No J4/3/2015
22nd October 2015
Mfum Farms and Feedmill Limited
v Agnes Gyamfua – Deceased
substituted by Mrs. Lovia Opoku
Bandoh Suit No. CA.J4/25/2012,
dated 24/10/2018
Brown v Quashigah [2003-2004] 2
SCGLR 930
BOOKS REFERRED TO IN JUDGMENT
DELIVERING THE LEADING JUDGMENT
DOTSE, JSC:-
COUNSEL
EMMANUEL DWAMENA ASARE FOR THE
DEFENDANT/ RESPONDENT/ APPELLANT
.
MARTIN L. KPEBU FOR THE
PLAINTIFF/APPELLANT/RESPONDENT.
DOTSE, JSC:-
This is an appeal from the
judgment of the Court of Appeal
(Coram: P. K Gyaesayor, K.A.
Acquaye, S. Dzamefe) dated
12th March, 2015
where the court reversed the
decision of the High court
presided over by His Lordship
Anthony Oppong J.
FACTS
The brief facts of the case are
that, the Plaintiff/Appellant/
Respondent hereafter referred to
as Plaintiff initiated an action
per her lawful Attorney against
the
Defendant/Respondent/Appellant,
hereafter, Defendant in the High
Court, Accra on 20th
October, 2010 for the following
reliefs:
a)
Declaration of title to the
disputed land
b)
Perpetual injunction restraining
the Defendant from dealing in
any way with the land including
further development of the land
c)
Recovery of possession
d)
An order to demolish Defendant’s
structure on the land and
surcharging Defendant with the
cost
e)
Damages for trespass
f)
Cost
g)
Any other order or orders this
Honorable court may deem fit
THE PLAINTIFF’S CASE
It is the case of the Plaintiff
that she acquired the land in
dispute from the Ashale Botwe
Family in 1988 and went into
possession by occupying same
over the years to prevent
encroachment. The plaintiff then
constructed a reservoir on the
land and built a wall around the
land. The Plaintiff states that
the lessors delayed in preparing
the indenture to the land but
have recently prepared same
which is dated 6th
December, 2009. The Plaintiff
states that the adjoining land
belongs to her Attorney who is
her mother and both were
acquired at the same time and
the attorney went ahead to
develop her land and now lives
there. The plaintiff claims that
on or about 10th
October, 2010 she noticed that
the defendant was digging
trenches in the nature of a
foundation in complete disregard
to the fact that there was a
reservoir and a wall around it.
The Plaintiff protested
immediately by among other
things writing on the inside and
outside of the wall that “THIS
LAND IS NOT FOR SALE” but
the defendant refused to heed
the protest and in about six
days developed the land within
the wall to lintel level.
THE DEFENDANT’S CASE
It is the case of the Defendant
that the disputed land was
acquired from Beatrice M. Ogah,
Andrews Kwesi Amanor, Caroline
Amanor, Bether Amanor and
Dorothy Amanor by an indenture
dated 1st July, 2006.
His grantors also acquired the
land from Numo Nmashie family of
Teshie who are the lawful owners
of a large track of land
including the disputed land. He
registered his interest in the
land and proceeded to develop
it. It is the case of the
Defendant that the disputed land
forms part of a larger track of
land in which the Supreme Court
in the case of In Re
Ashalley Botwe Lands;
Adjetey Agbosu and Others vs
Kotey and Ors (2003-2004) SCGLR
420 declared Okpelor
Sowa Din Family of Teshie as
owners of the land.
It is the case of the Defendant
that the grantors of the
plaintiff are not the owners of
the land and can therefore not
make any valid alienation to the
plaintiff.
HIGH COURT DECISION
The trial High court after
hearing the case gave judgment
to the defendant and assigned
the following reasons:
The Plaintiff the court found
out acquired the land in 1989
and this conclusion was drawn
from exhibits B1 and D which
show that the plaintiff bought
the land in 1989 and made a
final payment in 1994 and then
the indenture was made in 2009.
On the issue of whether or not
the Plaintiff was an innocent
purchaser for value without
notice, the court relied on the
judgment in the case of in
Re Ashalley Botwe Lands
Supra and held that it operated
as estoppels per Rem judicatam
against the Plaintiff. The court
cited the case of Attram
vs Aryee (1965) GLR 341
which is to the effect that
“a prior purchaser of land
cannot be estopped as being
privy in estate by a judgment
obtained against the vendor
commenced after the purchase”.
The court explained that the
plaintiff bought the land in
1989 and the Ashalle Botwe
judgment was in 2004 and in
those circumstances, the
Plaintiff cannot be regarded as
privy in estate for the purposes
of invoking estoppel per rem
judicatam. The court however
held that the fact remains that
the Plaintiff derived her title
from the Ashalley Botwe family
who have not been adjudged as
the owners of the land, and that
the Plaintiff cannot be said to
be a bonafide purchaser because
she did not show any efforts
made by her to investigate her
root of title.
The court cited the case of
West Africa Enterprises Ltd v
Western Hardwood Enterprise Ltd
(1995-96) 1 GLR 155
where the court held that:-
“The Maxim was that a
purchaser of land had no right
to remain in ignorance of the
fact that what he was buying
belonged to someone other than
the vendor. Accordingly, a
purchaser of land who failed to
conduct a thorough investigation
into the vendor’s title did so
at his own risk, for he would be
bound by all the equities.”
The court then held that the
Plaintiff did not pay heed to
this caution and she must suffer
for it. The court then gave
judgment to the Defendant noting
that he proved to be better
entitled to the disputed land
than the Plaintiff. The
Plaintiff’s action was therefore
dismissed.
APPEAL TO THE COURT OF APPEAL
AND DECISION THEREIN
The Plaintiff being dissatisfied
with the judgment of the trial
court appealed to the Court of
Appeal seeking an order
reversing the judgment of the
High Court.
On hearing the appeal, the Court
of Appeal considered the
Plaintiff’s first ground of
appeal which is that, the
judgment is against the weight
of the evidence on record. The
court then stated the law which
states that it is established
that when such a ground is
raised in an appeal, it is
“incumbent on the appellate
court to analyse the entire
record of the appeal, take into
consideration the testimonies
and all the documentary evidence
led at the trial before arriving
at its own decision so as to
satisfy itself that on the
preponderance of probabilities,
the conclusions of the trial
judge are amply or reasonably
supported by the evidence”.
Tuakwa vs Bosom
[2001-2002] SCGLR 61.
The court then found after
reviewing the evidence that the
Plaintiff had two documents
exhibit B1 and D both in the
name of the plaintiff and that
the Defendant had none. The
court noted that the fact that
exhibit B and C being in the
name of the Plaintiff’s attorney
was not fatal to the Plaintiff’s
case as noted by the trial
court. The court also noted that
the Plaintiff acquired her
interest in 1989 whilst that of
the Defendant was in 2010 and by
the rules of priority of
interest plaintiff’s lease was
earlier in time and took
precedence over the assignment
to the Defendant which was
granted later than the
Plaintiff.
On the issue of the identity of
the land in dispute, the court
noted that evidence need not be
led when the identity of the
land is not in issue. This is
because both parties admitted
that the land in dispute was
walled at the time the defendant
entered it. The court stated the
legal principle as noted in the
case of Fosua and Adu Poku
vs Dufie (Deceased) and Adu-Poku
Mensah (2009) SCGLR 310
that, “the settled law was
that an appellate court would be
slow to interfere with or set
aside the findings so made
unless the findings were
perverse or not supported by the
evidence on record.” The
court found out that the
findings of the trial court were
not supported by the evidence
and therefore departed from
them. Ground one of the appeal
therefore succeeded.
The court noted in ground 2 of
the appeal that the trial court
erred in relying on the judgment
in the In Re Ashalley
Botwe case to decree
title in the Defendant’s
grantors the Numo Nmashie Family
of Teshie. The Court of Appeal
found that the Defendant’s
grantor was not a party to the
suit neither did he testify or
give any evidence and there is
nothing to prove that the
defendant’s grantors are the
same as the Agbosu Freeman and
Nmai Djorn family of Teshie. The
trial judge therefore erred and
misled himself to decree title
on the Defendant based on the
In Re Ashalley Botwe case.
The court granted judgment to
the Plaintiff on ground 2 citing
the case of Klu vs Konadu
Apraku (2009) SCGLR 741
which notes that “a purchaser
of land is not estopped or
affected by a judgment adverse
to his vendor in proceedings
commenced subsequent to the
acquisition of title.”
The court noted that the
Plaintiff from the evidence was
in possession before the
Defendant and they rejected the
evidence of DW1 who stated that
the fence was constructed by one
Mr. Dsane or Alhaji Okine as
neither of them claimed
ownership of the land.
The court therefore “declared
title of the disputed plot in
the Plaintiff and ordered
perpetual injunction against the
Defendant and also ordered that
plaintiff recover possession of
the disputed land and awarded
general damages of GH¢10,000 for
trespass against the Defendant.
The judgment of the trial High
Court was thus set aside.
APPEAL TO SUPREME COURT AND
GROUNDS OF APPEAL
The Defendant dissatisfied with
the judgment of the Court of
Appeal, appealed to this Court
on the following grounds.
i.
That the judgment of the Court
of Appeal is against the weight
of the evidence
ii.
The Court of Appeal erred in
holding that the Plaintiff
herein acquired the disputed
land in 1989 and thereby
misdirected themselves in
holding that exhibit B and D
corroborated the said
acquisition
iii.
That the Court of Appeal also
erred in rejecting the evidence
of DW1 and thereby misdirected
itself in holding that Plaintiff
entered the disputed land first
and took possession by walling
the land
iv.
Additional grounds may be filed
upon receipt of the Record of
Appeal
ANALYSIS OF GROUNDS OF APPEAL
GENERAL PRINCIPLES OF LAW IN
APPEAL HEARINGS
Before this court is an appeal
from the judgment of the Court
of Appeal dated 12th
March, 2015 reversing the
judgment of the trial court
against the Defendant, and
allowing the appeal of the
Plaintiff. Three grounds of
appeal have been stated above
and it must be noted that no
further grounds of appeal were
filed after receipt of the
Record of Appeal. It is trite
learning that an appeal is by
way of rehearing. And this has
been explained in several
decisions of this court. In the
case of Praka v Ketewa
[1964] GLR 423 (SC)
where the distinguished Judge,
Ollennu JSC explained that:
“It is true that an appeal is
by way of rehearing, and
therefore the appellate court is
entitled to make up its own mind
on the facts and to draw
inferences from them to the same
extent as the trial court could;
but where the decision on the
facts depends upon credibility
of witnesses, the appeal court
ought not to interfere with
findings of fact except where
they are clearly shown to be
wrong, or where those facts are
wrong inferences drawn from
admitted facts or from the facts
found by the trial court.
Therefore if in the exercise of
its powers, an appeal court
feels itself obliged to reverse
findings of fact made by the
trial court, it is incumbent
upon it to show clearly in its
judgment where it thinks the
trial court went wrong. It goes
without saying that if an appeal
court sets aside the findings of
a trial court without good
ground, or upon grounds which do
not warrant such interference
with the findings made by the
trial court, a higher court will
set that judgment aside.”
This sound legal principle has
been developed over the years
and reiterated in a number of
decisions. In the case of
Tuakwa vs Bosom supra
the Supreme Court noted
that it is
“Incumbent on the appellate
court to analyse the entire
record of the appeal, take into
consideration the testimonies
and all the documentary evidence
led at the trial before arriving
at its own decision so as to
satisfy itself that on the
preponderance of probabilities,
the conclusions of the trial
judge are amply or reasonably
supported by the evidence”.
Also see the cases of
Achoro & Anr v Akenfela & Anr
[1996-97]SCGLR 209, Koglex Ltd
(No 2) v Fields [2000]SCGLR 175,
Awuku Sao v Ghana Supply Co.
Ltd. [2009] SCGLR 710, Gregory
vs Tandoh &Hanson
[2010]SCGLR971, Obeng v
Assemblies of God Church Ghana
[2010] SCGLR 300.
In all these cases, the Supreme
Court established the principles
upon which an appellate court
may depart from findings of fact
of a lower or trial court.
In this final appeal, the first
ground of appeal by the
appellant is that the judgment
is against the weight of
evidence. In his judgment in the
unreported Supreme Court case of
Roland Kofi Dwamena v
Richard Nortey Otoo Civil Appeal
No J4/47/2018 dated, 8th
May 2019, Pwamang JSC noted
that:-
“In this final appeal by the 1st
Defendant, the sole ground of
appeal is that the judgment is
against the weight of evidence.
This ground of appeal is an
invitation to the court to comb
through the record that was
placed before the lower court
and decide for itself whether
having regard to the evidence
and the law relevant to the
determination of the case, the
lower court was right in its
findings and conclusions.” Also
see the case of Akufo Addo v
Catheline [1992] 1GLR 377
S.C.
It has been noted in a number of
decisions that, where an appeal
is based on the ground that the
judgment is against the weight
of evidence, the appellant
implies that there were certain
pieces of evidence on record
which if applied in his favour
could have changed the decision
in his favour or pieces of
evidence were wrongly applied
against him. The onus is on such
an appellant to clearly and
properly demonstrate to the
appellate court the lapses in
the judgment being appealed
against. See the case of
Djin v Musa Bako [2007-2008] 1
SCGLR 686. It is
therefore the duty of the
defendant in this case to
demonstrate to this court the
pieces of evidence that were
wrongly applied against him in
the lower court and for this
court to also go through the
testamentary and documentary
evidence led at the trial and
analyse same with the judgment
and to come to its own
conclusions.
DEFENDANT’S ARGUMENTS ON GROUND
ONE
On ground one, it is the
argument of the Defendant that
the Plaintiff’s grantor lost an
action in the Supreme court in
the In Re Ashalley Botwe
lands supra and that the
indenture signed in 2009 by
Ebenezer Nikoi Kortey the
Plaintiff’s grantor had died at
the material time.
It is also the case of the
Defendant that the Oath of proof
was not signed before a
commissioner and finally, the
signature of the Plaintiff who
lives abroad was totally
different from her signature on
the Power of Attorney.
Defendant’s counsel further
submitted that, exhibit B which
shows payments made for land
purchased in 1989 bore the name
of plaintiff’s attorney who
admitted in cross examination
that she also bought land in the
area. It is the argument of
counsel for the defendant that
plaintiff’s attorney was trying
to use her own documents to
claim land that is not hers and
that if there was a receipt in
the name of the plaintiff why
was it not tendered in evidence?
Counsel cited the case of
Faibi v State Hotels Corporation
[1968] GLR 471
which noted that:-
“Where a party would not
produce evidence which evidence
is available and within his
peculiar knowledge, it could be
inferred in law that that
evidence is against him”.
Exhibit C which is an indenture
also bears the name of the
Plaintiff’s mother and it is the
contention of Defendant’s
counsel that the Court of Appeal
should not give any probative
value to those documents. The
Defendants also urge on this
court to consider exhibit 2
which demonstrate their root of
title and also cited the case of
West African Enterprises
Ltd v Western Hardwood
Enterprises Ltd supra
where the court stated that:-
“The maxim was that a purchaser
of land had no right to remain
in ignorance of the fact that
what he was buying belonged to
someone other than the vendor.
Accordingly, a purchaser of land
who fails to conduct a thorough
investigation into the vendor’s
title did so at his own risk,
for he would be bound by all the
equities”.
Counsel for defendant further
urged on this court to reverse
the judgment of the Court of
Appeal because the plaintiff
could not discharge the burden
of proving her title to the land
citing the cases of Serwah
v Kesse (1960) GLR 227; and
Zabrama v Segbedzi (1991) 2 GLR
221.
PLAINTIFF’S RESPONSE TO GROUND
ONE
It is the case of Plaintiff’s
counsel that exhibits B and C
which were issued in the
Plaintiff’s attorney’s name were
not fatal to the case as noted
by the trial judge because
Plaintiff tendered in exhibits
B1 and D which were receipts of
final payment and permission to
enter the land respectively and
both were issued in the name of
the Plaintiff. Counsel for
Plaintiff noted that it was
exhibit 2 which was tendered in
by the Defendant which should
not have been taken into
consideration as same was
stamped on the face as withdrawn
by the Land Valuation Division
of the Lands Commission. He
further noted that an
examination of exhibit 2 reveals
that even though it says that it
was being granted by four
Assignors, it was only signed by
one person thereby making the
assignment incomplete. Plaintiff
counsel also urged on this court
to dismiss the appeal on the
grounds that the Plaintiff’s was
first in time and that even a
trespasser in possession can
defend an action against any
other person except the true
owner. See the case of
Mensah v Peniana [1972] 1GLR
337.
It is also the contention of
counsel for the Plaintiff that
the decision In Re
Ashalley Botwe case
supra did not extinguish the
plaintiff’s interest in the land
as held by the trial judge.
Counsel noted that the correct
position of the law was stated
by the Court of Appeal in its
judgment and this court should
therefore not disturb it.
Even though there were some
inconsistencies in some aspects
of the Plaintiff’s case, these
are not fatal. For example
exhibit B and C tendered in by
the Plaintiff bore the name of
the Plaintiff’s attorney who is
also her mother and who in her
evidence admitted that she also
purchased land from the
plaintiff’s grantors. The
Plaintiff’s attorney has
actually developed her portion
of the land and lives there.
This evidence encouraged counsel
for the Defendant to argue that
the Plaintiff’s attorney was
trying to lay claim to the
disputed land using her own
documents and that the land in
dispute was never granted to the
Plaintiff. Convincing as
counsel for the Defendant may
sound, one cannot ignore the
fact that further evidence was
presented to show that at least
there were some documents in the
plaintiff’s own name in the form
of exhibit B1 and D. Exhibit B1
was a receipt of final payment
issued in Plaintiff’s name while
exhibit D which was also issued
in the name of the Plaintiff was
a document granting her
permission to enter the land. In
our considered opinion, the
Court of Appeal was therefore
right in holding that exhibits B
and C which were issued in the
name of the Plaintiff’s attorney
was not fatal to the plaintiff’s
case.
The next thing to consider is
the effect of the decision in
the In Re Ashalley Botwe
Case supra. It is the position
of the Defendant’s counsel that
the decision in that case
automatically extinguished the
plaintiff’s interest in the land
since the Plaintiff’s vendors
were declared not to be the
owners of Ashalley Botwe
lands.
It must be noted that this case
was decided in 2004 fifteen
years after the plaintiff
acquired her interest in the
land. Ollennu JSC in the case of
Attram vrs Aryee
Supra noted in Holding 3 that:-
“A prior purchaser of land
cannot be estopped as being
privy in estate by a judgment
against the vendor
commenced after the purchase.”
This position was restated
in the unreported case of
The Registered Trustees of the
Catholic Church vrs BUILDAF
Limited and two others Civil
Appeal No J4/30/2014 dated 25th
June 2015 that “a
prior purchaser of land cannot
be stopped as being privy in
estate by a judgment against the
vendor commenced after
purchase.”
The trial court judge rightly
stated the law on page 184 of
his judgment when he said that
“in this case the plaintiff
bought the land in 1989 and in
2004 when the Supreme Court gave
judgment against plaintiff’s
vendor, plaintiff had already
purchased the land long before
the judgment was obtained. And
in this circumstance, plaintiff
cannot be regarded as privy in
estate to that judgment.” He
however held otherwise after
making that sound statement of
the law.
It is not in dispute that
possession is key in an action
for declaration of title to
land. In the case of Mensah
vrs Peniana supra the court
noted in holding 2 that
“Proof of possession by a
Plaintiff is sufficient to
maintain an action for trespass
against a Defendant who cannot
prove a better title.”
In the unreported case of
Rosina Aryee vrs Shell Ghana Ltd
& Anor Civil Appeal No J4/3/2015
dated 22nd October
2015 Benin JSC enunciated
the law on possession as
follows:
“Possession in law is one of the
most difficult and complex areas
of law, hence the impossibility
in placing it in a pigeon hole.
It is normally determined from
the facts of the case. We are
concerned with possession of
land in a city like Accra. We
cannot lose sight of the
numerous problems associated
with land ownership in Accra.
People who have gone through the
process of acquiring land
genuinely stand the risk of
losing it if they fail to
develop it immediately because
of multiple sales or leases by
the same vendor or lessor as the
case may be. Hence, developments
have been rushed through without
building permits all because
people want to protect their
lands. So in order not to
violate the laws of the land
people have resorted to erecting
temporary structures on the land
to serve as visible sign to
everybody who goes there to know
that at least somebody is on the
land. Needless to say squatters
also take advantage to settle on
unoccupied lands with kiosk and
all sorts of temporary
structures.”
We could not agree more with
Benin JSC speaking on behalf of
the Court on the issue of
possession. And as noted in the
quote above whether one is in
possession in law or not,
depends on the facts of the
case. In the instant case,
evidence on record shows that
the Plaintiff acquired the land
in 1989 and we must say here
that both lower courts made
concurrent findings of fact that
the Plaintiff acquired the
disputed land in 1989. The trial
court noted that
“in this case the plaintiff
bought the land in 1989 and in
2004 when the Supreme Court gave
judgment against plaintiff’s
vendor Plaintiff had already
purchased the land long before
the judgment was obtained. And
in this circumstance, Plaintiff
cannot be regarded as privy in
estate to that judgment.”
The Plaintiff built a wall
around the disputed land and
also constructed a reservoir on
it. There is evidence that the
land in dispute was walled which
evidence is accepted by both
parties.
A wall is not a natural feature
of land. Defendant noted in his
evidence that he acquired the
land in 2010 a long time after
that of the plaintiff. There was
already a wall around the land
when he acquired it. He did not
inquire from the adjoining
neighbors about the wall but
rather relied on the testimony
of DW1. Defendant would be fixed
with notice of an interest in
the land before he acquired his
interest. See also the
unreported decision of this
court in Suit No. CA.J4/25/2012,
dated 24/10/2018 intitutled
Mfum Farms and Feedmill
Limited v Agnes Gyamfua –
Deceased substituted by Mrs.
Lovia Opoku Bandoh where
the Supreme Court, unanimously
applied the above principle.
It is the case of the defendant
that the plaintiff should have
heeded to the principle of law
decided in the case of
West African Enterprises Limited
vrs Western Hardwood Enterprises
Limited supra.
The same principle can be
applied to the Defendant because
he did not also make detail
enquiries about the land he
intended to develop when there
were visible signs that the land
is already in possession by
another. The defendant admitted
during cross examination that he
did not know the Plaintiff’s
attorney who happened to be
living in the adjoining land to
the disputed land. This was
corroborated by PW1 who said
that the Plaintiff’s attorney
was his mother and they live in
the house next to the disputed
land. We do not believe that a
search in the registry is the
only due diligence to be carried
out when one intends to buy a
particular piece of land.
Enquiries from the neighbors
would go a long way to clear
doubts and also to prove that
due diligence was observed in
investigating not only the root
of title but also any interest
in the land.
In the case of Brown v
Quashigah [2003-2004] 2 SCGLR
930 the court held
thus:-
“The burden must rest
squarely on the vendor and the
prospective purchaser to satisfy
themselves that the land
intended to be sold is available
and vacant or not allocated. The
principle of caveat emptor is
still a postulate of our law. A
prospective vendor or purchaser
of land cannot shift on to the
shoulders of the existing owner
the burden of informing them of
encumbrances, title or interest
held by him. In many cases it
will not even be enough to
conduct a search at the Deed
Registry or Land Title Registry.
The Registrar will fail to
disclose any interests in the
land which have not been
registered.” Emphasis
From the above analysis, there
is evidence that the Plaintiff
acquired the land in her name;
she was also in possession of
the land before the Defendant
acquired his interest, and that
the Defendant was aware of a
prior interest in the land
before he proceeded to build on
it.
The In Re Ashalley Botwe
case supra did not
deprive the Plaintiff of her
interest in the land. This
ground of appeal therefore
fails.
DEFENDANT’S ARGUMENTS ON GROUND
TWO
On ground two, learned counsel
for the defendant noted that,
there was no evidence on record
for the court to hold that the
plaintiff acquired the land in
dispute in 1989. Counsel for
defendant also noted that
exhibit D seems to be a standard
form which could be filled by
anyone and also there was no
site plan attached to the
exhibit and the Court could
therefore not rely on that
exhibit to declare the plaintiff
owner of the disputed land.
PLAINTIFF’S RESPONSE TO GROUND
TWO
On ground two learned counsel
for the plaintiff noted that
both lower courts found as a
fact from the evidence that the
plaintiff acquired the land in
1989 and that the defendant
acquired his interest in 2010,
the Court of Appeal did not
therefore misdirect itself in
coming to the same conclusion.
It is the contention of counsel
for the Defendant that there was
no evidence on record for the
Court to hold that the Plaintiff
acquired the land in 1989. This
cannot be said to be true.
Exhibit B1 is a receipt
indicating final payment made by
the Plaintiff and it was issued
in 1994. Exhibit D is also a
document issued in the name of
the Plaintiff granting her
permission to enter the land. It
is not uncommon in land
transactions for the parties to
agree to sell and buy in one
year and to conclude the
transaction in another. The
inconsistencies on the part of
the Plaintiff and her attorney
as to which year the land was
acquired was therefore not fatal
to her case.
The Defendants however, could
not rely on exhibit 2 to claim
title to the land in dispute
because the Defendant was
assigned the interest from four
persons who acquired the land
from Numo Nmashie Family of
Teshie. However the evidence
shows that only one person out
of the four signed the deed of
assignment. There was no
evidence tendered to show that
consent of the other three was
given in that sale. In the
absence of any further evidence,
the assignment as noted by the
Court of Appeal is incomplete
and therefore transfers no
interest to the defendant. The
Court of Appeal did not
misdirect itself but rather
relied on the evidence on
record. This ground of appeal
also fails.
DEFENDANT’S ARGUMENTS ON GROUND
THREE
On ground three, learned counsel
for the Defendant noted that the
court of appeal erred in
rejecting the evidence of DW1
who testified that the wall was
not built by the Plaintiff and
urged this court to take all the
evidence into consideration and
allow the appeal.
PLAINTIFF’S RESPONSE TO GROUND
THREE
On ground three, learned counsel
for the Plaintiff noted that,
the court took into
consideration the testimony of
PW1 a brother of the Plaintiff
who testified to the fact that
he was there when the wall was
built and tendered in pictures
to support his claim. The Court
of Appeal did not accept the
evidence of DW1 who said the
wall was constructed by people
who are not laying claims to the
land. The court did not
therefore err in rejecting the
testimony of DW1.
Counsel for the Defendant is
urging on this court to consider
the testimony of DW1 who
testified that the wall was not
build by the Plaintiff as they
claimed but that it was
constructed by Mr. Dsane or
Alhaji Okine. We need not to
belabor that point. The Court of
Appeal found and we agree that
Mr. Dsane or Alhaji Okine are
not claiming ownership of the
disputed land, and that point is
therefore immaterial to the
determination of issues germane
to this case.
They will have no reason to wall
a piece of land that does not
belong to them. The testimony of
the Plaintiff’s brother PW1 is
more credible. The court of
Appeal therefore did not err in
preferring one testimony over
another. This ground of appeal
also fails.
It should also be noted that,
once the identity of the land
was not in dispute, issues
relating to the identity of the
land are immaterial and moot.
CONCLUSION
In the premises, the appeal
herein against the Court of
Appeal decision of 12th
March 2015 fails in its entirety
and is accordingly dismissed.
We accordingly affirm the Court
of Appeal decision of even date,
and enter judgment in favour of
the Plaintiff on all her reliefs
as granted by the Court of
Appeal, and order the Plaintiff
as the owner of the land
described in Schedule “A”.
V. J. M. DOTSE
(JUSTICE OF THE SUPREME COURT)
YEBOAH, JSC:-
I agree with the conclusion and
reasoning of my brother Dotse,
JSC.
ANIN YEBOAH
(JUSTICE OF THE SUPREME COURT)
APPAU, JSC:-
I agree with the conclusion and
reasoning of my brother Dotse,
JSC.
Y. APPAU
(JUSTICE OF THE SUPREME COURT)
PWAMANG, JSC:-
I agree with the conclusion and
reasoning of my brother Dotse,
JSC.
G. PWAMANG
(JUSTICE OF THE SUPREME COURT)
MARFUL-SAU, JSC:-
I agree with the conclusion and
reasoning of my brother Dotse,
JSC.
S. K. MARFUL-SAU
(JUSTICE OF THE SUPREME COURT)
COUNSEL
EMMANUEL DWAMENA ASARE FOR THE
DEFENDANT/ RESPONDENT/ APPELLANT
.
MARTIN L. KPEBU FOR THE
PLAINTIFF/APPELLANT/RESPONDENT.
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