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Land
-
Property - Declaration of title
- Recovery of possession –
Trespass – Expunge of Land Title
Certificate from records –
Whether or not the Court of
Appeal erred in rejecting the
evidence of the Court appointed
Surveyor - Whether the Court of
Appeal erred in preferring the
root of title of the plaintiff
as opposed to that of the
defendant - Whether the reliance
the Court of Appeal placed on
the Land Title Certificate
procured by the plaintiff and
tendered into evidence was wrong
in law - Whether or not the
lands in dispute are the same
land.
HEADNOTES
According to
the plaintiff, the land in
dispute was conveyed to him by
one Emmanuel Yaw Nkrumah on 8th
August, 1988. It is significant
to observe that Emmanuel Yaw
Nkrumah himself obtained his
conveyance from Anna Benieh
Yanney. Soon after obtaining
his conveyance, plaintiff
averred that he went into
possession of the land, erected
a fence wall on same and heaped
sand and stones preparatory
towards commencement of
building. The plaintiff also
succeeded in registering his
title documents evidencing the
conveyance of the disputed land
to him at the Land Title
Registry on 31st July
2000 It was later that the
plaintiff’s Attorney who is his
wife discovered that the
defendant had commenced
construction on the plaintiff’s
land and accordingly instructed
the commencement of the
proceedings in the High Court
from which this Appeal emanates.
The defendant averred that he
acquired the land in dispute
from Mr. and Mrs. Marcus. The
defendant claimed to have
conducted a search in respect of
the disputed land on 9th
November, 2006 which disclosed
that the land had been conveyed
to his vendors, Mr. & Mrs.
Marcus in 1989. After he
purchased the land, the
defendant claimed to have
commenced occupation of same and
has since developed the land to
an appreciable level. The High
Court, Accra delivered judgment
in favour of the defendant on
his counterclaim and dismissed
the plaintiff’s action, the
plaintiff naturally felt grossly
dissatisfied with the above
judgment and successfully
appealed against it to the Court
of Appeal, which by a unanimous
decision of the Court
HELD
This
principle of nemo dat quod
non habet operates
ruthlessly and by it an owner of
land can only convey title that
he owns at the material time of
the conveyance and since by the
evidence on record, Anna Benieh
Yanney, had divested herself of
title in the same parcel of land
to Emmanuel Yaw Nkrumah, the
plaintiff’s vendor on 12 – 12 –
1986, there was definitely no
title left in her to convey to
any other person, at the time
the conveyance to defendants
vendors was effected. The
conveyance to the defendant’s
vendors and subsequently to the
defendant herein are therefore
null and void and of no effect.
Having thus satisfactorily
discharged this burden, the
Plaintiff must be deemed to have
established the basis for the
grant of the reliefs he claimed
in the Trial Court. The
Defendant has not been able to
shed a shadow of doubt on the
Plaintiff’s Land Title
Certificate, and once this is
held to be regular and valid,
the Court of Appeal was thus
right in upholding its
authenticity and validity. On
the whole, we find no valid or
sound reason to disturb the well
thought out and reasoned
judgment of the Court of
Appeal. For the reasons stated
above, we will dismiss this
appeal as wholly incompetent and
unmeritorious. The Appeal filed
against the Court of Appeal
Judgment of 9-12-2010 hereby
fails. The Court of Appeal
judgment of even date as well as
its Orders contained therein are
affirmed.
STATUTES
REFERRED TO IN JUDGMENT
Land Title
Registration Act, 1986 (PN DCL
152)
Bruce v Quaynor & Others (1959) GLR
292 at 294
Land Development (Protection of
Purchasers) Act 1962, (Act 2)
Evidence Act 1975 (NRCD 323).
CASES
REFERRED TO IN JUDGMENT
Mrs. Christiana Edith Agyakwa Aboa
v. Major Keelson (Rtd) and
Okyeane Yima & Anor, v. Major
Keelson consolidated Suit nos.
81/92 and L. 20/92 dated 16th
march 2011
Sasu v Amua Sakyi (1987-88)2
GLR 221
Sasu v White Cross Insurance
Co. Ltd (1960) GLR 1,
Darbah & Another v Ampah
(1989-90)1 GLR 598 (CA)
BOOKS
REFERRED TO IN JUDGMENT
DELIVERING
THE LEADING JUDGMENT
DOTSE: JSC
COUNSEL
ADJEI LARTEY
FOR THE APPELLANT.
THADEUS SORY
WITH CLARA KASSER – TEE FOR THE
RESPONDENT.
_______________________________________________________________________________________
J U
D G M E N T
_______________________________________________________________________________________
DOTSE:
JSC
This is an appeal by the
Defendant/Respondent/Appellant,
hereafter referred to as the
Defendant, against the Judgment
of the Court of Appeal delivered
on 9th December, 2010
in favour of the
plaintiff/Appellant/Respondent,
hereafter referred to as the
Plaintiff.
ACTION IN THE HIGH COURT
By his amended writ of summons, the
plaintiff, who commenced the
action through His Lawful
Attorney THERESA T. KANGBEREE
claimed the following reliefs
against the the Defendant:
i.
A
declaration of title in
favour of plaintiff against
defendant for all that piece and
parcel of land in extent 0.15
hectare (0.38 of an acre) more
or less being parcel No.187
Block 24, Section 201 situate at
South Ofankor in the Greater
Accra Region of The Republic of
Ghana and more also described
at paragraph 2 of plaintiff’s
statement of claim.
ii.
An order for
recovery
of possession of the land
the subject matter of this suit
from defendant.
iii.
A declaration that the defendant
has
trespassed into plaintiff’s
land described herein.
iv.
General damages in favour of
plaintiff for the trespass
committed by defendant on
plaintiff’s land.
v.
An order that defendant demolish
all and any structures
constructed by defendant on the
land.
vi.
An order directed at defendant
to defray all expenses incurred
by plaintiff for purposes of
demolishing the structures
constructed by defendant on
plaintiff’s land.
vii.
An order of perpetual injunction
to restrain the defendant
whether by himself/herself,
servants, workmen or agents or
otherwise from trespassing or
otherwise undertaking any
development of, dealing with or
in any manner interfering with
plaintiff’s ownership of a right
and as well as possession of the
land the subject matter of this
suit.
The Defendant, on his part as per
his amended counterclaim, also
sought the following reliefs
against the plaintiff:
a)
A declaration of title to all
that piece or parcel of land
situated, lying and being at
South Ofankor, Accra containing
an approximate area of 0.36 acre
or 0.15 hectare more or less
and bounded on the North West by
vendors land measuring on
that side 158.1 feet more or
less on the North-East by a
proposed road and measuring
on that side 98.6 more or less
on the South-East by vendors
land measuring on that side
159.7 feet more or less on the
South-West by vendors
land measuring on that side
100.2 feet more or less which
piece or parcel of land is more
particularly delineated in the
attached site plan.
b)
An order for the
Land
Title Certificate No. GA
17008 dated 31st day
of July 2008 in favour of the
plaintiff herein be
expunged
from the records of the Land
Title Registry.
c)
An order to restrain the
plaintiff from further
disturbing the peaceful
enjoyment of his land and
property.
d)
Damages for trespass.
e)
Punitive damages for libel.
f)
Damages for malicious
prosecution.
g)
Cost of this suit including
legal fees.
During the course of the trial in
the High Court, one ANDY AGBAKPE
, described as a Senior
Technical Officer of the Survey
Department was called as a Court
Witness. (C.W.1).
The Plaintiff’s Attorney, Theresa
Kangberee, and ISAAC SIAW ADU
PW1 a licensed Surveyor
testified for and on behalf of
the plaintiff.
The defendant testified on his own
behalf and in addition called
one witness BISMARK ADJEI (DW1)
who was described as an employee
of the defendant, a mason by
profession who worked on the
development of the land in
dispute for the defendant. He
is also reputed to be an
associate of the defendant of
several years.
What were the salient facts upon
which both parties relied on for
the contest of the suit in the
trial High Court? Let us
briefly relate these facts as
can be gleaned from the appeal
record.
FACTS ACCORDING TO PLAINTIFF
According to
the plaintiff, the land in
dispute was conveyed to him by
one Emmanuel Yaw Nkrumah on 8th
August, 1988. It is significant
to observe that Emmanuel Yaw
Nkrumah himself obtained his
conveyance from ANNA BENIEH
YANNEY. Soon after obtaining
his conveyance, plaintiff
averred that he went into
possession of the land, erected
a fence wall on same and heaped
sand and stones preparatory
towards commencement of
building. The plaintiff also
succeeded in registering his
title documents evidencing the
conveyance of the disputed land
to him at the Land Title
Registry on 31st July
2000 as Certificate No. G.A.
17008.
It was later that the plaintiff’s
Attorney who is his wife
discovered that the defendant
had commenced construction on
the plaintiff’s land and
accordingly instructed the
commencement of the proceedings
in the High Court from which
this Appeal emanates.
FACTS ACCORDING TO DEFENDANT
The defendant
averred that he acquired the
land in dispute from Mr. and
Mrs. Marcus. The defendant
claimed to have conducted a
search in respect of the
disputed land on 9th
November, 2006 which disclosed
that the land had been conveyed
to his vendors, Mr. & Mrs.
Marcus in 1989. After he
purchased the land, the
defendant claimed to have
commenced occupation of same and
has since developed the land to
an appreciable level.
From the above facts, it is obvious
that what the trial court should
have enquired into from the very
beginning was the priority of
the title of the plaintiff and
the defendant and thereafter
those of their respective
Vendors. Be it as it may, at
the end of the trial, on the 31st
day of October, 2008, Gyaesayor
J.A, sitting as an additional
High Court Judge, presiding over
the Fast Track
High
Court, Accra delivered judgment
in favour of the defendant on
his counterclaim and dismissed
the plaintiff’s action.
In an analysis of the reasons for
the award of judgment in favour
of the defendant, the learned
trial Judge, delivered himself
thus:
“It is
evident that plaintiff had not
started the construction work on
the land although he says in the
evidence that he has put up a
fence wall and a gate and done
other acts to indicate that he
was in possession.
It was only
bare assertion not supported by
any evidence from independent
source. This is more important
because it is the defendant’s
case that the land which he has
since developed by putting up
“two boys quarters and occupied
by members of his family was
bare when he went there.
Pictures exhibited by the
defendant shows that he has put
up a fence wall and has in fact
roofed the main building. Of
the two parties it is the
defendant who is effectively in
occupation of the land. Any
attempt now to evict him from
the land which he lawfully
acquired shall result in untold
hardship being visited on the
defendant. The Land
Title Certificate in possession
of plaintiff does not cover the
land occupied by the defendant
and does therefore not confer an
indefeasible title on the
plaintiff is to deprive the
defendant from to assert his
title to the land. It covers an
area found to be in a road and
different from the land of the
defendant.”
“In the light
of the evidence led before this
court, the court finds the case
of defendant more acceptable and
I accordingly proceed to
dismiss the plaintiff’s claim
and enter judgment for defendant
on his counterclaim and hereby
“restrain
the plaintiff, agents, servants,
privies etc from interfering
with defendant enjoyment of the
land. I however refuse to
award any damages for
trespassing and malicious
prosecution since I find no
evidence to support those
claims.”
“There was an
undertaking by the plaintiff to
pay the expenses in the event of
losing the case. No evidence
has been led to show the extent
of damages suffered by the
defendant. In the
circumstances, I shall only
award cost of GH3,000 to the
defendant.”
The above constitute the salient
parts of the High Court
Judgment.
DECISION OF COURT OF APPEAL
AND APPEAL TO SUPREME COURT
The plaintiff
naturally felt grossly
dissatisfied with the above
judgment and successfully
appealed against it to the Court
of Appeal, which by a unanimous
decision of the Court,
CORAM:- Abban (Mrs) J.A.
presiding, Kanyoke and Apaloo,
JJA allowed the appeal as per
the judgment of the Court
delivered by Kanyoke J.A.
It is this decision of the Court of
Appeal that has been appealed
against by the defendant to this
court on the following grounds
of appeal:
GROUNDS OF APPEAL
(a)
The Judgment was against the
weight of evidence as adduced.
(b)
The Appeal Court erred in
holding that the Survey Plan
tendered by CW1 and CW1’s
evidence should have been
rejected as being unreliable.
(c)
The Appeal Court erred in
holding that
defendant/appellant’s grantors
had no interest in the land
demised to defendant /appellant
and consequently defendant
/appellant’s documents were null
and void.
(d)
The Appeal Court erred in
holding that the
defendant/appellant failed to
prove his ownership of the land
in dispute.
(e)
Cost awarded was excessive.
Before we embark upon an analysis
and evaluation of the arguments
on appeal to this court, it is
perhaps necessary to state that,
quite apart from considering the
priority of the title of the
parties and those of their
respective vendors which might
prove crucial in the
determination of issues raised
in this appeal, there is the
need to also consider the
arguments put forward by Counsel
for the parties in their
respective statements of case in
support of the grounds of appeal
referred to supra.
DEFENDANT’S ARGUMENTS
Since it is the defendant who is the
appellant in this Court, it is
prudent to begin with an
evaluation of his arguments in
support of his case.
The crux of the defendant’s argument
seems to be that,
the Court
of Appeal erred in rejecting the
evidence of CW1 the Court
appointed Surveyor.
According to the evidence on
record, it was this CW1` who
testified that the plaintiff’s
land mainly falls within a
road. C.W.1 again testified
that the plaintiff’s land is not
the same land that is being
occupied by defendant although
he accepts that there is a
slight overlap of the respective
lands of plaintiff and
defendant.
As a matter of fact, we are of the
considered view that C.W.1’s
testimony was so confusing and
incoherent that it is thoroughly
unreliable. Furthermore, his
testimony displayed a shocking
shortfall in his
professionalism.
Proof of the above assertion is
discernible from C.W.1’s own
testimony after he tendered the
plan.
In answer to a question as to what
his findings were when he went
to the land, this is what C.W.1
told the Court:
“My Lord
on the composite plan, the land
showed to me by Saanbaye is
edged green on the composite
plan and the land shown to me by
Alhaji Muhamed is also edged
green that means they show
the same thing on the ground.
C.W.1 continued his testimony
after an interjection “is that
so” in the following confused
narrative:-
“My Lord
the site plan of Saanbaye is
edged blue on the composite
plan. My Lord the site plan of
Alhaji Mohamed is edged red on
the composite plan. And my
finding my Lord is that the
green and the red shows the red
conforms the green on the
composite plan.”
Q: “Say it
again”
We believe the learned trial Judge
himself must have realised the
incoherence and inconsistency of
the narrative to have asked for
explanation. And this is what
he got this time around.
“The
red and the green they are the
same thing. That shows that the
red that shows the site of
Alhaji Mohamed and the green
which the two of them are
claiming on the ground, the red
conforms with the green”
References to Saanbaye are referable
to the plaintiff whilst
references to Alhaji Mohamed
refer to the defendant.
In evaluating the evidence of this
C.W.1 the learned trial Judge
observed as follows in his
judgment.
“The Court
in compliance with issue in the
summons for direction filed by
the plaintiff referred the
matter to the Survey Department
to draw a composite plan for the
benefit of the Court.
Without
wasting too many words on this
matter, the Survey Department
appointed one Andy Agbakpe a
Land Surveyor with the Survey
Department, Accra who is also a
Senior Technical Officer to do
the Survey. He visited the land
with the plans submitted by the
parties. According to him, the
plan given him by the plaintiff
is edged green and that showed
to him by defendant is also
edged green. In effect, the two
persons were claiming the same
piece of land on the ground. In
his survey,
“he
prepared a composite plan, which
shows that the defendant land is
edged red on the composite plan
and conforms with what is on the
ground. He said “the green and
the red shows the red conforms
with the green on the composite
land. In effect, the plaintiff
land edged blue on the composite
plan does not correspond to her
plan submitted for the Survey.
The land for plaintiff according
to the findings of the Surveyor
falls within a road and is not
the land occupied by the
defendant.”
If that is the understanding of the
evidence of C.W.1 by the learned
trial Judge, then what that
means is that, the plaintiff’s
land is separate and distinct
from the land upon which the
defendant has built upon. In
other words, it means the
defendant has not committed
trespass on the land claimed by
the plaintiff. In effect, the
defendant should not have been
entitled to his counterclaim as
claimed in the trial court.
However, as later events have
proven, the same road
reservation that plaintiff was
reputed to be claiming has been
plotted and reputed to have been
registered for the defendant.
In other words, defendant anchored
his arguments on the rejection
of C.W.1’s evidence by the Court
of Appeal and also the rejection
of the title of his vendors by
the Court of Appeal as being
flawed.
PLAINTIFF’S ARGUMENTS
The plaintiff on the other hand
argued that his land title
certificate which he produced
and tendered constitutes prima
facie evidence that he is the
actual owner of the land in
dispute. Therefore, the
defendant can only assert title
to the land in dispute if he is
able to lead cogent evidence to
rebut the plaintiff’s claim of
title to the land. But this the
defendant has failed to do. The
plaintiff therefore contended
that the Court of Appeal was
thus right in rejecting the
C.W.1’s evidence and that
C.W.1’s evidence that
plaintiff’s land falls in a road
should be rejected because as
far as the
Land
Title Registration Act, 1986 (PN
DCL 152) is concerned, the
Survey Department is required
and mandated to mark and
delineate roads out of areas
that are to be registered.
There is therefore this
presumption of regularity that
the Survey Department in
surveying the land of the
plaintiff before the certificate
was procured did its job
properly. It is therefore
incomprehensible for the same
Survey Department to which C.W.1
belongs to turn around and state
that the plaintiff’s land as
registered is a road, or to put
it bluntly, that the plaintiff
holds a land title certificate
to a road as owner.
As far as we are concerned, it
should have dawned on the
learned trial Judge that the
evidence of C.W.1 as it stood
cannot be relied upon because
not only did it lack clarity but
it defied all logic and
therefore, the Court should
have turned elsewhere for
evidence to base the Judgment
upon. Fortunately, evidence
abounds on the record from which
the Court could have used to
come to a proper, well
considered and logical judgment
which would have been in tune
with sound and tested principles
of law. This is what the Court
of Appeal did.
What then are the Legal Issues
that have to be considered in
resolving this appeal?
Relating the legal issues raised
with the grounds of appeal, the
following issues stand out for
determination.
1.
Whether the Court of Appeal
erred in preferring the root of
title of the plaintiff as
opposed to that of the defendant
and was therefore wrong in their
application of the principle of
“nemo dat quod non habet”.
2.
Whether or not the decision of
the Court of Appeal not to rely
on the survey plan tendered by
C.W.1 as well as the rejection
of the evidence of C.W.1 was
wrong in law.
3.
Whether the reliance the Court
of Appeal placed on the Land
Title Certificate procured by
the plaintiff and tendered into
evidence was wrong in law.
Before we proceed with the
discussion on the legal issues,
let us deal with one peripheral
matter, and that is whether the
parties are adidem on the
identity of the land, i.e. the
subject matter of the dispute.
IDENTITY OF THE LAND
The plaintiff’s Attorney was certain
in her evidence that it is the
land the plaintiff bought from
EMMANUEL NKRUMAH in 1988 that
the defendant has trespassed
upon and commenced building
operations thereon.
According to the plaintiff, after
purchase of the land, the
documents of title were
regularised at Lands Commission
until they were perfected by the
acquisition of the Land Title
Certificate. Plaintiff then
tendered the relevant land
documents as exhibits, B, C, D1
and D2 respectively.
The evidence also indicated that
after purchase of the land, the
plaintiff erected a cement fence
wall around the land, dug a
tank, heaped sand and stone and
erected a metal gate to the wall
fence.
It was thus very easy for the
plaintiff’s Attorney to
determine later that the
defendant had committed acts of
trespass on the land they had
purchased.
From the plaintiff’s point of view
the land he purchased is what
the defendant has trespassed
upon.
The evidence of C.W.1 really
confirms the point
that the
lands are the same. But for
the untenable position taken by
the learned trial Judge, which
saw him openly descend into the
arena of the conflict on the
side of the defendant, C.W.1 was
clear the two lands are the
same.
For example, how does one explain
this statement from the learned
trial Judge to the C.W.1.
“So are
you saying that the plaintiff is
trying to take away the
defendant’s land?”
When C.W.1, answered that, that was
not what he said, the learned
trial Judge pressed further to
know what he said or meant and
this is what is captured on the
record.
“What I am
saying is that, what the
plaintiff had shown on the
ground the defendant had shown
the same thing and the site plan
the defendant had submitted
confirms with what we have shown
but the site plan the plaintiff
had submitted moves away from
what …………”
From the above testimony, it appears
the C.W.1 was somehow certain
about the identity of the land
in dispute. His concern was not
that the plaintiff’s land is
elsewhere, separate and distinct
from that of the defendant.
His concern was that, part of the
plaintiff’s land overlaps that
of the defendant and the rest
has been taken over by a road.
How he came by this piece of
evidence has not been given and
the source stated for it to be
verified. In any case, the
learned trial Judge himself
appeared to have endorsed the
serious misgivings that learned
counsel for the plaintiff
expressed about the competence
of C.W.1 in the following
statement which to us speaks
volumes.
“If you go
and there is another site plan
somewhere, then you will come
and ask us to stop then you go
for another site plan we shall
never finish. What I will do is
that finish with him if you
like you can make another
request for another surveyor to
be appointed and I can consider
it, but for now we are going to
testify on what he has brought”.
This clearly marked the foundation
for the second survey that was
done by the plaintiff which was
tendered by PW1 as exhibit E.
the evidence of PW1 to our mind
has cleared any doubts that one
may have about the identity of
the disputed land and the
contention that part of the
plaintiff’s land fell on a
road. All these claims have
been discounted by PW1 by his
assertion that, for such claims
to be credible, there must be a
scheme that has to be used to
give credibility to the road
reservation theory. As things
stand now, it remains a
perception in the mind of C.W.1
and perhaps the learned trial
Judge which has not become a
reality. It must be noted that
public roads are planned to form
part of town, municipal and
metropolitan planning schemes
and these are always documented
for planning and zoning
purposes.
We will therefore hold and rule that
the identity of the land is not
in doubt.
CONDUCT OF SURVEY PLAN IN THE
HIGH COURT
But we have some reservations about
the conduct of the survey in the
trial court. When the decision
was taken to appoint a Surveyor
to demarcate and delineate the
land in dispute between the
parties, the court should have
given some guidance to the
Surveyor by directing the
parties and their counsel to
file what is generally known as
Survey Instructions. These
instructions would have aided
and limited the Surveyor on the
scope of works he was to do.
This court, speaking with one voice
through me in the unreported
Civil Appeal No. J4/34/2011
dated 22 – 2 – 2012 entitled
Salomey Shorme Tettey
–
Plaintiff/Respondent/Appellant
Nii Amon Tafo
Co -
Plaintiff/Respondent/Appellant
Vrs
Mary Korkor Hayford
-
Defendant/Appellants/Respondents
Substituted by Stella Larbi
and Comfort Decker
CORAM: - Akuffo (Ms) JSC presiding,
Date-Bah, Adinyra (Mrs) Dotse
and Vida Akoto-Bamfo (Mrs)
JJSC’s stated the following as
useful lessons to be adopted
whenever Survey Instructions are
ordered to be filed in the trial
of land cases.
“We have
perused the evidence and
cross-examination of the
Surveyor and come to the
conclusion that if the parties
had complied with the courts
directive to file survey
instructions perhaps the
difficulties the Surveyor
encountered with some of the
questions put to him under
cross-examination would have
been averted.
- - - - - - -
- - - - - -
Secondly,
what we have also deduced from
this case is that, the failure
by the parties to have filed
survey instructions prevented
the Surveyor from dealing with
issues germane to the case when
he went onto the land.
-
- - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - -
- -
Thirdly,
the Surveyor would have been
requested to indicate the
portions of the land vis-à-vis
the approved layout of the land
from the relevant statutory town
planning and or metropolitan
Assembly.
Fourthly,
all approved roads in the lay
out as it affected portions of
the land claimed by the parties
should have been indicated by
the Surveyor on the plan if the
parties and or their counsel
really wanted issues to be dealt
with holistically.”
The Court finally concluded this
issue as follows:-
“It should
thus be noted that, in view of
the massive assistance that a
court determining issues of
title to land and other related
and ancillary reliefs would
derive from survey plans, care
and some amount of
professionalism should be
exhibited by counsel whenever a
Survey Plan is ordered in
contested land disputes.”
The above observations and
guidelines become really
relevant in the instant case
where road reservation has been
referred to as having taken a
portion of plaintiff’s land. If
the Surveyor, C.W.1 had produced
the scheme from which the
plaintiff’s land falls into a
road reservation, perhaps the
authenticity of the source of
the scheme could have lent
credence to the observation.
But coming as it has from a
Surveyor who did not even have
any field notes to remind him of
the observations, readings and
recordings done at the site,
albeit in the absence of the
plaintiff, this conduct, has
created doubts in his competence
and has seriously discredited
his work and testimony.
However, just as the Supreme Court
was able to use other pieces of
evidence on record after
discounting the evidence of the
Surveyor in the Salomey S.
Tetteh case referred to supra
and held that the defendants and
not the plaintiff in the said
case referred to supra, were the
owners of the land, so also can
this court find appropriate and
relevant evidence on record to
come to a definitive conclusion
in this matter that one of the
parties has a superior title to
the other.
ISSUE NO.1
Whether the Court of Appeal
erred in preferring the
plaintiff’s root of title.
1.
The plaintiff and defendant have
all established their root of
title and by their pleadings and
evidence that the land they
claim is the same parcel of
land. This is because whilst
plaintiff traces his root of
title from Charles Okai Botchway
as is evident from exhibit D1,
the defendant traces his root
from Nii Amponsah Ankrah who
made a statutory declaration
dated 24 – 3 – 69 and then by a
deed of conveyance dated 20 – 6
– 79 Charles Okai Botchway
transferred that land to Mathew
Allotey.
In this respect, the line of
conveyance to plaintiff looks
like this –
1.
Conveyance from Charles O.
Botchway dated 20 – 6 – 1979 to
Mathew Allotey.
2.
Conveyance from Mathew Allotey
dated 5 – 8 – 1983 to Anna
Benieh Yanney.
3.
Conveyance from Anna Benieh
Yanney dated 12 – 12 – 1986
to Emmanuel Yaw Nkrumah
4.
Emmanuel Yaw Nkrumah is the
plaintiff’s vendor and he
conveyed title to the plaintiff
on 8 – 8 – 1988.
In respect of the defendant, the
following are the records on the
transfers of the root of title
of his vendors.
(i)
Statutory Declaration dated 24 –
3 – 1969 by Nii Amponsah Ankrah
(ii)
Conveyance from Charles O.
Botchway dated 20 – 6 – 1979 to
Mathew Allotey.
(iii)
Conveyance dated 5 – 8 – 1983
from Mathew Allotey to Anna
Benieh Yanney.
(iv)
Conveyance dated 10 – 11 –
1989 from Anna Benieh Yanney to
Mr. & Mrs Marcus and Another.
(v)
Transaction according to
defendant in 1989 conveying the
land from Mr. & Mrs Marcus and
Yvonne Nuamah to him.
What is clear from the above
extracts is that, whilst both
parties had one root of title to
start with and continued apace
with this common denominator
until the conveyance from Mathew
Allotey to Anna Benieh on 5 – 8
– 1983, when the said Anna
Benieh divested herself of title
to Emmanuel Yaw Nkrumah who is
the plaintiff’s vendor on 12 –
12 – 1986, the conveyance to the
defendant’s vendor Mr. & Mrs
Marcus was reputed to have been
made by the same Anna Benieh
on 10 – 11 – 1989.
The Court of Appeal had correctly
stated the legal position of the
above transactions and we could
not agree more with Kanyoke J.A.
when he summed it up in the
judgment thus:-
“On the
basis of the documentary
evidence provided by exhibits D1
and I respectively and my
finding that the parties were
fighting over the same piece or
parcel of land, the question is
whether Anna Benieh Yanney
having in 1986 conveyed or
transferred her title or
interest in the disputed land to
Emmanuel Yaw Nkrumah – the
appellant’s vendor, she had any
title or interest in that land
again to convey or transfer to
Mr & Mrs Marcus and Yvonne
Nuamah the respondent’s vendors
in 1989? The answer is clearly
in the negative. The principle
of nemo dat quod non habet
applied to prevent or prohibit
or render null and void Anna
Benieh Yanney from any further
dealing with the land or
anything that she did in respect
of the land after 1986. In
effect, in point of law, Mr. &
Mrs Marcus, and Yvonne Nuamah
got nothing from Anna Benieh
Yanney on 10th
November, 1989 in respect of the
land in dispute and consequently
had no title or interest in that
land to convey to the respondent
on 27th April, 2006.
The respondent, (referring to
the defendant herein) therefore
got nothing in respect of the
land in dispute from Mr. & Mrs.
Marcus and Yvonne Nuamah by
exhibit 2”.
This
principle of nemo dat quod
non habet operates
ruthlessly and by it an owner of
land can only convey title that
he owns at the material time of
the conveyance and since by the
evidence on record, Anna Benieh
Yanney, had divested herself of
title in the same parcel of land
to Emmanuel Yaw Nkrumah, the
plaintiff’s vendor on 12 – 12 –
1986, there was definitely no
title left in her to convey to
any other person, at the time
the conveyance to defendants
vendors was effected. The
conveyance to the defendant’s
vendors and subsequently to the
defendant herein are therefore
null and void and of no effect.
On the operation of this principle
of nemo dat quod non habet, see
the following cases.
1.
Bruce v Quaynor & Others (1959)
GLR 292 at 294
2.
Unreported Supreme Court
consolidated Suit nos. 81/92 and
L. 20/92 dated 16th
march 2011 entitled Mrs.
Christiana Edith Agyakwa Aboa
Plaintiff/Respondent/Respondent
v. Major Keelson (Rtd)
Defendant/Appellant/Appellant
and Okyeane Yima & Anor,
Plaintiff/Respondent/Respondents
v. Major Keelson
Defendant/Appellant/Appellant.
3.
Sasu v Amua Sakyi (1987-88)2 GLR
221
holden 7 at pages 241 per Wuaku
J.A. as he then was.
It is thus clear that using this
principle of nemo dat quod non
habet alone, the Court of Appeal
was right to have set aside the
decision of the High Court and
enter judgment for the
plaintiff.
ISSUE NO.2
Whether or not the decision of
the Court of Appeal not to rely
on the plan was wrong in law.
By now, it is evident that the trial
Judge had no basis to have
ignored the credible and
convincing evidence of the
plaintiff based on his
documentary materials of title
and to have rather preferred the
porous, weak, untested,
inconsistent and contradictory
evidence of a discredited
Surveyor, which is what Andy
Agbakpe, C.W.1 at the end of the
day proved to be on record.
There is also authority based on
the decisions in the cases of
Sasu v
White Cross Insurance Co. Ltd
(1960) GLR 1, and Darbah &
Another v Ampah (1989-90)1 GLR
598 (CA) at 606 that a trial
Judge need not accept the
evidence given by an expert
witness such as C.W.1.
From the commencement of the suit,
the learned trial Judge should
have been put on the alert that
the defendant was bent on
bulldozing his way and not
conducting his affairs according
to due process. Despite the
fact that the suit was pending,
and that an injunction
application was pending against
him, the defendant proceeded
defiantly to complete the
building regardless of the
consequences. The Courts must
not only frown upon such brazen
display of wealth but deprecate
it as well. Unfortunately,
pronouncements from the trial
court that because the defendant
had speedily completed the house
he should be deemed as being in
effective occupation is a
dangerous precedent that should
not be allowed to prevail.
Such a statement, has the tendency
to aid the rich and wealthy in
our Society who may decide to be
unscrupulous in their conduct in
related land transactions.
In the circumstances of this case,
it is clear that not having
pleaded the equitable doctrine
or principle of bonafide
purchaser for value without
notice or the protection
provided by and under the
Land
Development (Protection of
Purchasers) Act 1962, (Act 2)
the defendant cannot avail
himself of these defences
because of his conduct. He who
comes to equity must come with
clean hands is an equitable
maxim. In our opinion, the
conduct of the defendant is not
deserving of the sentiments
extended to him by the trial
Judge. Even though the defendant
made an attempt to challenge the
plaintiff by alleging that his
Land Title Certificate was
procured fraudulently, the said
attempt was a lame one since no
particulars of the said fraud
were particularised. In any
case no evidence whatsoever was
given which either directly or
indirectly gave an inkling of
any allegation of fraud in the
procuration of the plaintiff’s
Land Title Certificate.
It is trite learning that for anyone
to succeed with a serious
allegation like fraud which has
the tendency to vitiate acts
done regularly, the particulars,
which must be pleaded, must also
be proven. In the instant case,
not only were the allegations of
fraud not particularised, but
they were also not proven.
There is a presumption of
regularity in law and this has
been given statutory recognition
in the
Evidence Act 1975 (NRCD 323).
This means that, institutions of
state like the Lands Commission,
Survey Department and the Land
Title Registry are presumed to
conduct their affairs with a
certain degree of regularity in
line with the statutes that
established them. Thus, unless
there is strong evidence to the
contrary, such a presumption
should not be wished away.
The least courts of law can do is to
ensure that institutions of
state mandated to perform
statutory duties are not unduly
maligned by unsubstantiated
allegations of impropriety.
It is in this respect that we
believe the contention that the
policy measures that influenced
the passage of PNDCL 152 should
have been considered by the
trial court in its assessment of
the claims by C.W.1 that
plaintiff’s land, which has a
Land Title Certificate falls
into a road. This is because
PNDCL 152 mandates the Survey
Department to earmark roads
whenever the cadastral plan of
Land Title Certificate’s are
being drawn up, to prevent
people’s land from falling into
areas marked or zoned as roads
from registering them as such.
It would therefore be very
strange and regrettable for this
same Survey Department which has
the duty to prevent people from
registering title to road
reservations to go ahead and
register the plaintiff as the
owner of a road. This view is
bolstered by the fact that the
composite plan prepared by C.W.1
and P.W.1 does not contain or
show any road.
As a matter of fact, C.W.1 admitted
during cross-examination that in
conducting the survey work, he
neither requested for nor
referred to the plaintiff’s Land
Title Certificate. It is very
interesting that a staff of the
Survey Department would refuse
to consider a plan attached to a
land Title Certificate which by
law is prepared by staff of the
Survey Department. As we have
laboured to point out in this
judgment, the calibre of work
done by C.W.1 in this case was
nothing to write home about. It
is therefore not surprising
that, after the High Court
judgment, the defendant had been
able to register and replace the
plaintiff as the owner of the so
called “road land”.
The publication in the Ghanaian
Times of 9th October,
2010 which has been made
available to the court and not
denied by the defendant, means
that the contents are correct
and true.
The question that we would want
answered is that, is the portion
of the plaintiff’s land which
fell into a road now suitable
for use and development and
therefore registrable by the
defendant?
Considering the work of C.W.1, we
endorse the findings of the
Court of Appeal that because his
work was so perverse,
inconsistent and contradictory,
no useful purpose would be
served in relying on it. The
Court of Appeal was thus right
in setting aside the findings
made by the learned trial Judge
in this respect, and find for
the plaintiff that on a balance
of probabilities, he is the
owner of the disputed land.
ISSUE NO.3
Whether the reliance placed by
the Court of Appeal on the Land
Title Certificate and the
plaintiff’s root of title was
wrong in law.
In order not to be repetitive
because most of the salient
points germane to this issue
have already been discussed and
dealt with, we will be very
brief.
The contention here is that, by the
mere fact that plaintiff has
been able to produce a valid
Land Title Certificate, and this
constitutes a prima facie
evidence of good title, the
defendant needs to produce very
cogent evidence to rebut this
presumption. It is interesting
to observe that learned counsel
for the defendant in the face of
all the proven facts and
statutory provisions in PNDCL
152 still contends that the
title of the plaintiff as
provided under Sections 43(1)
sub-sections (1)(2)(3) and (4)
of PNDCL 152 is not sacrosanct
and conclusive and that it can
be impugned on grounds of
mistake, fraud or some obvious
misrepresentation.
One should not be making general
comments in this case, but
specific facts on record and
referable to particular
instances of mistake, fraud or
misrepresentation that can
impugn the validity of the Land
Title Certificate of the
Plaintiff. We have carefully
studied this entire record and
has not seen any such evidence.
The Defendant woefully failed to
produce any shred of evidence to
establish any such contrary
evidence.
What has to be noted is that,
assuming the Defendant genuinely
believed in the case he put
forward at the trial Court,
nothing prevented him from
calling any of his vendors to
testify for him. This is
because the Plaintiff has
produced his Land Title
Certificate and called a
credible witness, P.W. 1 whose
evidence we accept. On the
other hand, D.W. 1 whose
evidence the Defendant seeks to
use in the case cannot be relied
upon. Having filed a
Counterclaim in the action, the
Defendant and his legal advisers
ought to have realized that he
bore the same evidential burden
as the Plaintiff bore at the
commencement of the case.
Having
thus satisfactorily discharged
this burden, the Plaintiff must
be deemed to have established
the basis for the grant of the
reliefs he claimed in the Trial
Court.
The Defendant has not been able to
shed a shadow of doubt on the
Plaintiff’s Land Title
Certificate, and once this is
held to be regular and valid,
the Court of Appeal was thus
right in upholding its
authenticity and validity.
CONCLUSION
On the whole, we find no valid or
sound reason to disturb the well
thought out and reasoned
judgment of the Court of
Appeal.
For the reasons stated above, we
will dismiss this appeal as
wholly incompetent and
unmeritorious. The Appeal filed
against the Court of Appeal
Judgment of 9-12-2010 hereby
fails. The Court of Appeal
judgment of even date as well as
its Orders contained therein are
affirmed.
[SGD] J. V. M. DOTSE
JUSTICE OF THE
SUPREME COURT
[SGD]
DR. S. K. DATE-BAH
JUSTICE OF THE
SUPREME COUR
[SGD] J. ANSAH
JUSTICE OF THE
SUPREME COURT
[SGD] P. BAFFOE-BONNIE
JUSTICE OF THE SUPREME
COURT
[SGD] V. AKOTO-BAMFO
[MRS]
JUSTICE OF THE
SUPREME COURT
COUNSEL;
ADJEI LARTEY
FOR THE APPELLANT.
THADEUS SORY
WITH CLARA KASSER – TEE FOR THE
RESPONDENT.
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