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JUDGMENT OF THE
COURT
BENIN, JSC:-
This appeal raises two
important principles of law,
namely nemo dat quod non
habet and priority of
registrable instrument by a bona
fide purchaser, which were
relied upon by the plaintiff and
the defendants, respectively.
The trial High Court as well as
the Court of Appeal agreed that
the prior registration by the
co-defendant who they considered
a bona fide purchaser should
prevail both on the facts and
the law.
The facts of this case are very
simple. The State Housing
Company, hereafter called the
Company, leased the land in
dispute numbered 4A Lami Dwaahe
Street situate at Adentan
Housing Estate to the
plaintiff/appellant/appellant,
hereafter called the plaintiff.
The plaintiff leased the land to
the
Defendant/respondent/respondent,
hereafter called the defendant,
for a term of fifteen years.
Under the terms of the lease
agreement the defendant paid the
plaintiff rent advance for ten
years, with rent for the
remaining five years to be paid
later at an appointed date. When
the plaintiff went to demand
payment for the rest of the
term, the defendant refused
saying the plaintiff was not the
owner of the property and that
the land was owned by the
Co-defendant/respondent/respondent,
hereafter called the
co-defendant. The plaintiff
commenced an action against the
defendant claiming, inter alia,
ejectment for denial of title.
In their defence the defendant
maintained their position that
the land was owned by the
co-defendant. The defendant
counterclaimed for a refund of
their money inter alia.
Subsequently Fraga Oil was
joined to the suit as the
co-defendant. The co-defendant
pleaded that they were bona fide
purchasers for value and had
also duly registered their title
in accordance with law. In
response to the co-defendant’s
claim, the plaintiff denied
their claim to be bona fide
purchasers and pleaded that they
were in possession at the time
in that they carried out
business on the land. Apparently
in May 2003 the State Housing
Company had granted the same
land to the co-defendant. The
Company file on this property
that was tendered in evidence as
exhibit 1 confirms this, see
pages 200, 213, 214 and 221 of
the record of proceedings as
well as the pleadings of the
parties and the evidence on
record; thus there is no dispute
about the identity of the land.
The case was contested on these
facts. At the end the trial High
Court found the claims by the
co-defendant were established
and so it entered judgment for
them. The plaintiff appealed to
the Court of Appeal but failed
there too. This is a further
appeal to this court wherein the
plaintiff has raised these
grounds of appeal by the amended
grounds of appeal:
i.
The Court erred in upholding
that even though the 2nd
respondent did not counterclaim
for a declaration of title the
trial court nevertheless was
right in granting same based on
the authorities of EFFISAH v.
ANSAH (2005-2006) SCGLR 943 and
HANNA ASSI v. GIHOC
REFRIGERATION & HOUSEHOLD
PRODUCTS (No. 2) (2007-2008)
SCGLR 16.
ii.
The Court of Appeal erred when
it ruled that no authority was
shown in the proposition that
possession in law is not only
physical occupation but also the
right to it.
iii.
The Court of Appeal erred when
it ruled that the ‘nemo dat quod
non habet’ rule could not avail
the appellant.
iv.
The court erred when it upheld
the trial court’s decision that
the 2nd respondent’s
registration had priority over
the appellant’s.
Both courts below have concurred
in their findings of fact and
law. This court would ordinarily
respect such concurrent findings
unless, inter alia, the courts
below failed to take account of
some important pieces of
evidence on record or failed to
evaluate such evidence
correctly. There is no dispute
that on the evidence the Company
gave the same piece of land to
the plaintiff in 1997 and then
to the co-defendant in 2003.
There is no dispute that the
co-defendant registered the land
in May 2003 whilst the plaintiff
also succeeded in registering
the same piece of land
subsequently. This double
registration depicts the
confusion that has engulfed land
administration in this country.
The co-defendant is saying that
at the time they acquired the
land they conducted appropriate
searches. The result was that
there was no encumbrance so they
acquired the title which they
duly registered. Therefore they
claimed they were bona fide
purchasers for value without
notice; moreover they perfected
their title by prior
registration. The courts below
rejected the plaintiff’s claim
to have been in possession when
the land was given to the
co-defendant.
For the purposes of this appeal,
we would first have to focus on
the issue of possession by the
plaintiff whether in fact and in
law the plaintiff was in
possession and if so whether it
negatives the plea of bona
fides; that is reflected in
ground 2 of the grounds of
appeal. We take this approach
because in law if the principle
of bona fide purchaser succeeds,
coupled with the prior
registration, the co-defendant
would succeed against every
person as they would have
acquired an indefeasible title.
On the other hand, if the
co-defendant was fixed with
notice of any encumbrance, in
this case by plaintiff’s
possession, it would negative
the bona fides plea
notwithstanding their prior
registration of title.
Possession in law is one of the
most difficult and complex areas
of the law, hence the
impossibility in placing it in a
pigeon hole. It is normally
determinable from the facts of a
given 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
land. 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 kiosks and
all sorts of temporary
structures.
The above scenario is played out
in this case as the situation of
the land bears out as per
exhibit 1at page 203 of the
record. The situation of the
land is vividly captured in the
site inspection report conducted
by the Company. It reads:
‘Area was not developed by SHC.
The places is(sic)being used by
squatters who have placed kiosks
along the expanse with the
shaded portion being used by
tipper operators. The shaded
portion pink has no permanent
structure but temporary ones’
The plaintiff said she was using
the place for moulding and
selling blocks, and from the
totality of the evidence on
record she did so from a
temporary structure she erected
on the land. This structure was
leased out to the defendant by
the plaintiff in 1998 together
with the two plots of land. The
agreement between plaintiff and
defendant dated 6th
August 1998 was put in evidence
as exhibit B; the relevant part
reads thus: ‘That you will
release to Shell Ghana Limited,
the two properties situated at
Adenta-as per the attached
copies of the site plans. The
erected structure on the
property situated in the
SSNIT flats area shall
constitute part of this deal.’
Emphasis supplied
From the site inspection report
dated 4th April 2002,
the co-defendant became aware of
the presence of temporary
structures on the land. They
must have known that such
structures must have been placed
there by somebody. Or are they
saying that it is only a
permanent structure that
deserves attention? It would be
plainly unjust for the court to
accept that a person is in
possession only when he has a
permanent structure erected on
the land. When the site
inspection disclosed the
presence of a temporary
structure on the land, it
behoved the co-defendant to have
made further inquiries to know
who had erected the structure on
the land. Possession in this
case was complete when the
plaintiff took the plots and
erected the temporary structure
on it and carried on her
block-making business thereon.
And later she leased the land to
the defendant together with the
erected structure. The defendant
acknowledged there was an
erected structure on it.
Also before the co-defendant
acquired the land they got to
know there was a temporary
structure on it. They ought to
have made inquiries but they
just took it for granted the
land was vacant because it was
being occupied by squatters in
kiosks, by tipper truck drivers
and by temporary structure.
There is nothing on the record
to show that the co-defendant
even bothered to find out from
the occupants, the squatters and
especially from the tipper truck
drivers how they came to occupy
the land or on whose authority.
This reference is being made not
because those people were placed
there by the plaintiff, but
because an intending purchaser
must enquire from the occupants
of the land he intends to
purchase their authority for
staying on the land. The person
you consider a squatter sleeping
in a kiosk might have been
placed there by the landlord as
caretaker or overseer. It is
equally his duty as a prudent
purchaser to find out who must
have erected the structure
there. For registration under
the law does not dispense with
the requirements of the
equitable doctrines of fraud and
notice; see the following
Supreme Court decisions:
Amuzu v. Oklikah (1998-99) SCGLR
141; Western Hardwood Enterprise
Ltd. and Another v. West African
Enterprises Ltd. (1998-99) SCGLR
105. Notice does not mean
only notice of registration of
the title but also notice of
possession by the first
purchaser, grantee or lessee or
their agent as the case may be.
That is why an intending
purchaser must make reasonable
enquiries in respect of the
property he seeks to acquire.
This involves legal searches at
the land registry, but more
critically it involves a
physical inspection of the land
to ensure it is free from any
encumbrances.
The co-defendant was aware the
land was being occupied, albeit
by persons they described as
encroachers in their letter
dated 5th August 2003
addressed to the Company. The
letter headed EJECTION OF
ENCROACHERS informed the Company
about their readiness to
commence operations on the land;
they therefore requested the
Company to eject the encroachers
who had erected unauthorized
structures on the land. The
import of this piece of evidence
found at page 220 of the record
is that before the co-defendant
acquired the land they knew of
the existence of structures on
the land and these structures
remained on the land all through
even after they had registered
the land. As pointed out earlier
they made no attempt to
investigate the presence of
these structures on the land,
they assumed they were owned by
encroachers. What was the basis
for that assumption? The
co-defendant did not tell the
court. Was it the site
inspection report? In the site
inspection report, the Company
mentioned three categories of
persons or things on the land;
namely, squatters living in
kiosks, tipper truck drivers
operating on part of the land
and structures on another part
of the land the ownership of
which was not disclosed. Who
erected the structure/s on the
land? The co-defendant did not
bother to find out; they only
assumed it was put up by
encroachers. but the evidence
from the plaintiff supported by
the lease agreement with the
defendant as reflected in
exhibit B confirm that the
plaintiff did erect the
structure from which she
operated her block making
business. And even if the
structure was not erected by the
plaintiff it still does not
detract from her case for
according to the unchallenged
evidence of the plaintiff this
structure was on the land as at
1998 when she handed it over to
the defendant. As at 2003-2005
when the co-defendant purported
to acquire the land the
defendant had not destroyed or
removed the structure from the
land.
On these facts the co-defendant
could not be said to have been a
bona fide purchaser, they ought
to have enquired about the
presence of the erected
structure/s on the land, since
these are not natural fixtures
to the land. They did nothing of
the sort and only assumed they
were owned by encroachers.
It appears the courts below both
did not consider these vital
pieces of evidence at all,
indeed they did not mention
them; they proceeded with their
decisions as though these facts
did not exist on the record.
Having leased the land together
with the erected structure on it
to the defendant, in law the
plaintiff could be said to have
been in effective possession,
notwithstanding the fact that
the defendant did not move into
immediate occupation of the land
after they had been given
possession thereof by the
plaintiff following the
execution of the lease
agreement.
We make reference to what the
two courts below said on the
issue of possession by the
plaintiff. This is what the
trial court said: “The issue
of possession raised by the
plaintiff having been denied by
the defendants, the law enjoined
the plaintiff to call
independent and corroborative
evidence in proof thereof………….In
the face of the plaintiff’s
possession of the land, she
failed to lead any evidence
in proof of that assertion.
The record of proceedings does
not reveal any such evidence and
I am unable to accept this
assertion by the plaintiff that
she took possession of the land
from 1997 to 1998 and moulded
cement blocks thereon. The
plaintiff’s case is worsened by
the defendant’s evidence that
when it agreed to lease and
leased the land from the
plaintiff, it was left unused
until about the years 2005/2006.
From all this I find as a fact
that contrary to the plaintiff’s
assertion, the land was lying
unoccupied when the co-defendant
acquired it and it could not
have been aware of any prior
possession thereon by the
plaintiff.”
For their part this is what the
Court of Appeal said about the
issue of possession: “But the
pertinent question to ask is:
was the plaintiff in effective
possession of the land when she
let the land to the 1st
defendant in to establish prior
possession or interest in the
land? What does the evidence
say?” Having posed these
questions the court proceeded to
answer in these words: “A
cursory look at the evidence of
the plaintiff including her only
witness indicates that they came
to repeat their pleadings on
oath without more. The plaintiff
sought to establish that she had
been moulding and selling cement
blocks on the land prior to the
lease to the 1st
defendant company in a bit to
establish possession and some
form of notice of her interest
in the land. However, the
defendant controverted the
plaintiff on the issue of
possession of the land in
dispute in cross-examination. It
is significant to note that, if
a party relies on his claim for
ownership in possession, then
there must be evidence of clear
and positive acts of
unchallenged and sustained
possession or substantial user
of the land. See Akoto vrs.
Kavege (1984-86) 1 GLR 365”.The
citation of the last case by the
court below is clearly wrong.
That case was earlier digested
in (1984-86) G.L.R.D. 115 CA and
subsequently reported in
(1984-86) 2 GLR 365. After
citing this case, the court
below continued thus: “In
such situation, the plaintiff
who was relying on possession to
claim the subject property and
the same was vehemently
challenged by the defendants
could have called other persons
i.e. boundary owners, etc who
could have seen her work on the
land as witnesses. The law
frowns upon bare assertion
without more as same is settled
in cases like Majolagbe vs.
Larbi & Ors. (1959) GLR GLR 190
at 192 and Zabrama vs. Segbedzi
(1991) 2 GLR 221CA”
The trial court Judge rejected
the plaintiff’s claim for what
he termed lack of independent
and corroborative evidence. In
the same vein the Court of
Appeal rejected it because among
other things she failed to call
her boundary owners; which is
understood to mean supporting
evidence. It must be pointed out
that in every civil trial all
what the law requires is proof
by a preponderance of
probabilities. See section 12 of
the Evidence Decree, 1975 NRCD
323. The amount of evidence
required to sustain the standard
of proof will depend on the
nature of the issue to be
resolved. The law does not
require that the court cannot
rely on the evidence of a single
witness in proof of the point in
issue. The credibility of the
witness and his knowledge of the
subject-matter are determinant
factors; see this court’s
decision in the case of
William Ashitey Armah vs.
Hydrafoam Estates (Gh.) Ltd,
Civil Appeal J4/33/2013, dated
28th May 2013,
unreported. Indeed even the
failure by a party himself to
give evidence cannot be used
against him by the court in
assessing his case. See this
court’s decisions in these
cases: In re Ashalley
BotweLands; Adjetey Agbosu and
Others vs. Kotey and Others
(2003-2004) SCGLR 420, per
Wood, JSC (as she then was) at
page 448 and William Ashitey
Armah vs. Hydrafoam,
referred to above. In the last
case cited the plaintiff did not
testify in the action at all and
only relied on the testimony of
the court appointed witness, yet
he succeeded and this court
considered the process valid so
long as the evidence relied upon
was credible and sufficient to
discharge the evidential burden
that he assumed. The decision in
the oft-cited Majolagbe vs.
Larbi case, supra, should
not be understood to have laid
down any hard and inflexible
rule that a party must at all
costs produce a witness; and
especially in a land case to
call boundary owners. That
decision was only reflecting on
the required standard of proof
in a given case. It does not
mean where the plaintiff does
not call any witness to support
the fact he has pleaded which
the other party has challenged
he must fail. No, he will only
fail if his testimony is not
credible enough as for instance
if it is seriously flawed either
during the presentation in
evidence-in-chief or in cross-
examination as to render same
unreliable. Or if the evidence
proffered does not satisfy every
element of the law applicable to
the facts.
Thus the courts below were bound
by the law to examine every
piece of evidence on record in
order to reach a decision
whether the plaintiff had
discharged the burden of
producing evidence and
persuasion on a preponderance of
probabilities. She did not
require to call any boundary
owner/s or witness/es to confirm
that she had a structure on the
land or that she conducted
business on the land prior to
the date she handed over the
land with the erected structure
thereon to the defendant. If you
go through her entire evidence
and cross examination you will
not fail to notice that these
facts stood unchallenged. How
could they have been challenged
anyway in the light of exhibit B
whereby the defendant had
admitted that they took a lease
of the land from the plaintiff
with the erected structure
thereon? The plaintiff has
firmly established her point
that she was on the land and
transferred it together with the
erected structure to the
defendant. Be that as it may it
does not lie in the mouth of the
defendant to deny that the
plaintiff put up the structure
because at the time the
defendant came into contact with
the plaintiff in 1998 the
structure had been erected
already on the land. Therefore
it was not possible to challenge
the plaintiff’s evidence on this
fact.
Thereafter the co-defendant
assumed the burden of persuading
the court that as at the date
they acquired the land it was
not in any way encumbered by the
presence of the plaintiff on the
land. But the site inspection
report and their letter of 6th
August 2003 both of which have
earlier on been referred to have
confirmed that there were
visible presence of human beings
and structures on the land which
no prudent purchaser could and
should brush aside without
investigations into their
presence there. The defendant to
whom the plaintiff handed the
erected structure never said
they destroyed or removed it
from the site prior to the
acquisition by the co-defendant.
As earlier pointed out the
courts below did not pay regard
to all these pieces of vital
evidence. Indeed they did not
pay heed at all to exhibit B and
the site inspection report
contained in exhibit 1 which was
very critical to a determination
of whether the co-defendant was
fixed with notice of any
encumbrance on the land. The
result is that the co-defendant
was a reckless purchaser and not
an innocent one and did not
acquire title validly. Thus
ground 2 succeeds. This is
enough to dispose of this appeal
so we do not intend to consider
the other grounds of appeal.
There is no dispute the
defendant refused to pay any
more rent to the plaintiff and
denied that she was their
landlady. This was in clear
breach of the terms of exhibit
B. We therefore set aside the
judgments of both the High Court
and the Court of Appeal. In
their stead judgment is entered
for the plaintiff for an order
of ejectment and recovery of
possession against the defendant
for denying her title to the
leased property and also the
co-defendant to whom the court
below ordered the defendant to
attorn tenancy and who the
defendant claims is their new
landlord.
As stated already, the defendant
was in breach of the lease
agreement. The plaintiff was
therefore entitled to recover
rent for the last five years of
the lease period that is for the
period 6th August
2008 to 5th August
2013 which defendant refused to
pay her. The plaintiff is
therefore adjudged to recover
the sum of five thousand five
hundred Ghana cedis (GH¢5,500.00)
representing fifty percent of
rent paid for the first ten
years. Interest is awarded on
this sum from 6th
August 2008 to date of payment
at the prevailing bank rate.
Since the lease expired on 5th
August 2013 by effluxion of
time, the defendant has
continued to remain in
possession without paying any
rent to the plaintiff.
Consequently, the plaintiff is
adjudged to recover rent from
the defendant at the rate to be
assessed by the Land Valuation
Division of the Lands Commission
from the 6thof August
2013 to date, which sum should
also attract interest at the
prevailing bank rate from 6th
August 2013 until final payment.
In addition judgment is entered
for the plaintiff to recover
general damages from the
defendant for breach of contract
which is assessed in the sum of
fifty thousand Ghana cedis
(GH¢50,000.00). For reasons
contained herein the defendant’s
counterclaim fails entirely and
same is dismissed.
In conclusion the appeal
succeeds for reasons explained
above and is accordingly
allowed.
(SGD) A. A. BENIN
JUSTICE OF THE SUPREME COURT
(SGD)
G. T. WOOD (MRS.)
CHIEF JUSTICE
(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 COURT
COUNSEL
THOMAS HUGHES ESQ. FOR THE
PLAINTIFF/APPELLANT/APPELLANT.
MARTIN AGYIN-SAMPONG ESQ. (WITH
HIM SENA ABLA KPODO) FOR THE
DEFENDANT/ RESPONDENT/
RESPONDENT.
CHARLES HAYIBOR ESQ. FOR THE
CO-DEFENDANT/RESPONDENT/
RESPONDENT.
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