|
Land -
Ownership
- Possession - Land
Title Certificate issued – Fraud
- Setting aside Land Certificate
– Perpetual injunction – Expert
evidence - Survey Plan
- Whether or not the
indenture issued to the
Plaintiff in respect of the
disputed land after an indenture
was earlier executed in her
favour in 1983 is null and void
- whenever an order is made for
a survey plan in a land dispute
- Whether or not the plaintiff
has failed to discharge this
burden - Sections 10 - Evidence
Act, 1975 NRCD 323.
HEADNOTES
This case
commenced in the High Court,
Accra where the Plaintiff issued
a writ againsthe Defendant,
Madam Mary Korkoi (deceased)
claiming that the
Land
Title Certificate No. GA3929
issued by the Chief
Registrar, land Title Registry,
Accra to the Defendant is null
and void on grounds of
fraud.
At the High Court the Acting
Asere Mantse at all material
times to the cause of the
action, Nii Tafo Amon II applied
to be joined as a party and was
accordingly joined as a
Co-plaintiff by an order of the
Court, both Plaintiff and
Defendants claim title through
the Asere Stool. Whilst
plaintiff claims she acquired
the land in 1978, Defendants
claimed their mother acquired
the land as far back as 1974,
though she only got an indenture
covering the land in 1983. the
trial High Court Judge granted
plaintiff’s reliefs whilst she
dismissed the counterclaim of
the Defendants and accordingly
as per plaintiff’s writ set
aside the Land title Certificate
issued to the Defendants
declaring it to be null and
void. The Defendants appealed
against the decision of the High
Court to the Court of Appeal
which overturned the decision of
the High Court and entered
judgment in favour of the
Defendants.
HELD
In the
premises, this appeal fails and
is accordingly dismissed. Save
for the deletion of the order
contained in the last sentence
on page 191 of the appeal record
to wit that “and since the
defendants are the only
claimants they are entitled to
be declared indisputable owners
of the land” the entire Court of
Appeal judgment of 22nd
July, 2010 is hereby affirmed.
The Plaintiff’s case thus fails
in its entirety
STATUTES
REFERRED TO IN JUDGMENT
CASES
REFERRED TO IN JUDGMENT
Sasu v White
Cross Insurance Co. Ltd [1960]
GLR 4
Darbah &
another v Ampah [1989-90] 1 GLR
598 (CA)
Fofie V Wusu
[1992-93] GBR 877
Kwabena v
Atuahene [1981]GLR 136
Anane v
Donkor [1965] GLR SC and
Bedu v Agbi
[1972] 2 GLR 238, CA
Nana Darko
Frempong II v Mankrado K Effah
[1961] GLR 205-210
Dzaisu v
Ghana Breweries Ltd [2007-2008]
SCGLR 539
Ackah v
Pergah Transport Ltd. [2010]
SCGLR 728
Bruce v
Quarnor & Others [1959] GLR 292
Wordie v
Awudu Bukari [1976] 2 GLR
Helen
Abdallah & 4 Others v Mr. and
Mrs. Nunyuie, Kwasi Degbadzor &
Anr Suit No. L/S23/90
Sasu v Amua
Sakyi [1987-88] 2 GLR 221
BOOKS
REFERRED TO IN JUDGMENT
DELIVERING
THE LEADING JUDGMENT
JONES DOTSE
JSC
COUNSEL
CHARLES
BAWADUAH FOR THE APPELLANT.
GODWIN K.
NTONY FOR THE RESPONDENT
JONES DOTSE
JSC;
This is an
appeal by the
Plaintiff/Respondent/Appellant
hereafter referred to as
Plaintiff against the judgment
of the Court of Appeal dated 22nd
July 2010 which set aside a
judgment of the High Court which
was in favour of the plaintiff,
and entered judgment in favour
of the
Defendants/Appellants/Respondents,
hereafter referred to as the
Defendants. It must be noted
that, even though the Plaintiff
commenced action against a
Defendant, Madam Mary Korkoi,
she died during the pendency of
the suit, and had been
substituted by her daughters,
the two substituted Defendants
herein.
This case
commenced in the High Court,
Accra where the Plaintiff issued
a writ against the Defendant,
Madam Mary Korkoi (deceased)
claiming
the following
reliefs:
i.
Declaration
that the
Land Title Certificate No.
GA3929 issued by the Chief
Registrar, land Title Registry,
Accra to the Defendant is null
and void on grounds of fraud.
ii.
An order to cancel or
set aside
the said
Land
Certificate No. CA. 3929
iii.
Perpetual
injunction restraining the
Defendant, her agents workmen
etc not to have anything to do
with the said land.
At the High
Court the Acting Asere Mantse at
all material times to the cause
of the action, Nii Tafo Amon II
applied to be joined as a party
and was accordingly joined as a
Co-plaintiff by an order of the
Court.
Interestingly,
both
Plaintiff and Defendants claim
title through the Asere Stool.
Whilst plaintiff claims she
acquired the land in 1978,
Defendants claimed their mother
acquired the land as far back as
1974, though she only got an
indenture covering the land in
1983. It is therefore not
surprising that the Defendants
also counterclaimed for the
following reliefs:-
a. A
declaration that
the
indenture issued to the
Plaintiff in respect of the
disputed land after an indenture
was earlier executed in her
favour in 1983 is null and void.
b. A
declaration that the Asere stool
indeed executed a Deed of Lease
on 27/7/1983 in favour of the
Defendant and same was
registered at Land Registry and
covered with Land Certificate
No. GA3929.
JUDGMENT OF
THE HIGH COURT
The learned
High Court Judge found for the
Plaintiff on the basis that the
Plaintiff’s land tallied with
the size of land stated in her
indenture and the Title
Certificate in contra
distinction to the Defendant’s
who, according to the learned
trial High Court Judge, showed
inconsistencies in their land
size because the size of their
land as reflected in their
indenture and in their Land
Title Certificate did not tally.
Subsequently,
the trial
High Court Judge granted
plaintiff’s reliefs whilst she
dismissed the counterclaim of
the Defendants and accordingly
as per plaintiff’s writ set
aside the Land title Certificate
issued to the Defendants
declaring it to be null and
void.
DECISION OF
COURT OF APPEAL AND GROUNDS OF
APPEAL TO THIS COURT
The
Defendants appealed against the
decision of the High Court to
the Court of Appeal which
overturned the decision of the
High Court and entered judgment
in favour of the Defendants.
It is against this decision that
the plaintiff has appealed to
this court under the following
grounds of appeal:
1.
That, the judgment is against
the weight of evidence adduced
at trial.”
2.
The Court erred in law when it’s
(sic) decided that because the
Plaintiff/Respondent/Appellant
did not specifically claim
declaration of title, her case
must fail.
The Plaintiff
thus prayed this court that the
judgment of the Court of Appeal
be reversed, and judgment
entered in her favour.
MATTERS TO BE
CONSIDERED WHEN A SURVEY PLAN IS
ORDERED BY A COURT
Before we
consider the issues raised in
the two grounds of appeal filed
in this case, there are some
procedural issues which must be
dealt with for the guidance of
parties, counsel and trial court
Judges,
whenever an order is made for a
survey plan in a land dispute.
The first one
is of what relevance is the work
of a Surveyor appointed by a
court to assist in the
determination of a land suit?
This
observation must be critically
considered in view of the orders
made by the learned trial Judge,
Ayebi J, (as he then was) on 6th
April, 2005 when he appointed
the Surveyor.
This is what
he directed the Surveyor and the
parties to do:
“The Regional
Surveyor of the lands
Commission, Greater Accra Region
is hereby appointed to survey
the respective lands of the
parties herein in this matter
and then superimpose them.
The Plaintiff’s Counsel should
therefore furnish the said
Regional Surveyor with his
instructions plus any relevant
documents by 13/4/05. Each of
the parties should pay a deposit
of ¢1 million cedis…?”
Unfortunately, by the time the
survey report was ready for
presentation to the court, the
suit which originally commenced
before Beatrice Agyeman Bempah
J, went back to her.
As a result,
Ayebi J (as he then was) had
nothing to do with this suit
thereafter.
It was not
surprising therefore that, both
Counsel and the Court did not
appreciate the important role
the Surveyor’s evidence could
have played in helping the court
determine the real issues in
controversy.
From the
orders made by the Court, it is
clear the parties were to do the
following things pursuant to the
preparation of the Survey Plan:
1.
The Plaintiff’s counsel was to
file his survey instructions to
the Surveyor before the
commencement of work. By parity
of reasoning, since the order
directed the Surveyor to survey
the respective land of the
parties, it is to be assumed
that the Defendant was to be
expected to file survey
instructions as well for the
Surveyor to follow and or comply
with.
2.
The parties were to furnish the
Surveyor with any relevant
documents on or by 13/4/05.
3.
The parties were to make a
deposit of GH¢100.00 towards the
preparation of the Survey Plan.
On the part
of the Surveyor, he was directed
by the Court to do the
following:
a.
Survey the land of the parties
b.
Superimpose the said lands
possibly vis-à-vis the relevant
documents of the parties and
the land of the parties as it is
on the ground.
We have not
sighted any survey instructions
filed by any of the parties in
this case.
Indeed when
the Surveyor testified in the
case, he did not mention that
any of the parties filed any
survey instructions in the case.
Thus, apart from the site plans
and some documents of title that
the Surveyor had access to from
the parties, he was not
specifically requested to do any
other thing by the parties or
their counsel.
In any case,
the Surveyor, one Robert Hackman,
did testify in the case about
the work that he did in this
case as C.W.I.
Of particular
importance to the fate of this
case is the composite plan that
the Surveyor prepared which was
tendered as Exhibit 2. We will
revert to this exhibit later.
LACK OF
SURVEY INSTRUCTIONS TO SURVEYOR
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.
For example
when the Surveyor was asked by
the Defence Counsel as to what
his interpretation of his own
document, Exhibit 2 was, the
Surveyor answered thus:-
“I wish I
will be relieved to answer this
question as it will into the
arena”
“we believe
it was a reference to arena of
conflict.”
Surprisingly,
the learned trial Judge stated
thus:
“The court is
(sic) agree with CWI as he is to
be independent of the consistent
between the parties.”
Even though
it is difficult to comprehend
the said statement, we believe
it was a tacit approval of the
refusal by the Surveyor to give
an honest expert opinion based
on the work he has done to the
court. It is generally
understood that a court is not
bound by the evidence given by
an expert such as the Surveyor,
in this case. See case
of
Sasu v White Cross Insurance Co.
Ltd [1960] GLR 4 and Darbah &
another v Ampah [1989-90] 1 GLR
598 (CA) at 606
where Wuaku JA (as he then was)
speaking for the court also
reiterated the point that a
trial Judge need not accept
evidence given by an expert.
But the law
is equally clear that a trial
court must give good reasons why
an expert
evidence is to be rejected.
We believe
that the court should have
compelled the Surveyor to give
an opinion on Exhibit 2 which he
himself prepared.
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.
For example,
it should be noted that, Counsel
who represent parties before the
law courts have a professional
duty to perform to protect and
enhance the best interests of
their clients.
Besides, it
is they who have been
professionally instructed by
their clients and therefore
understand the nuts and bolts of
each case to enable them be
determined once and for all and
to let the courts of law dispose
or deal with issues arising in
the cases they handle. If
indeed, as the evidence
disclosed in this case, there
have been developments on the
land by both parties, then it
would not have been out of place
for the parties to have
instructed the Surveyor to
depict the wooden and or cement
block structures if any on the
land in dispute and show their
positions vis-à-vis the land
documents claimed by each party
in respect of the areas edged,
as “Green, Red, Blue and Black.”
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.
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.
This is
because, Counsel who is on top
of his brief in a land suit,
will definitely take advantage
to ensure that overt acts of
ownership
and possession are clearly
delineated by the Surveyor on
the plan to boost his or her
clients chances of success.
Thus, the
request for a survey plan if
properly managed, will ensure
that a lot of evidence will be
introduced by the party through
pictorial representation as will
be delineated on the plan as if
the court had moved to the locus
in quo.
In the
instant case, it would have been
perfectly legitimate for the
learned trial Judge to have
ordered the Surveyor to go back
to the land with an order for
the counsel in the case to file
their survey instructions, so as
to enable those instructions to
aid the Surveyor in his work.
Since all the above is history,
we have to make do with the plan
as it is and determine the
success or failure of this
appeal.
With the
above procedural points
discussed, this court now
proceeds to the resolution of
the appeal.
ARGUMENTS ON
GROUNDS OF APPEAL
Even though
the plaintiff filed two grounds
of appeal as has been stated
supra, learned Counsel for the
plaintiff in his written
statement of case argued only
the omnibus ground “that the
judgment is against the weight
of evidence”. This evidently
meant that the second ground of
appeal has been abandoned, it
will thus not be considered in
this judgment.
It is deemed
worthwhile to consider in some
detail, the facts of the case to
enable them to be put in proper
context.
The main
issue for determination is
whether Plaintiff should succeed
on the basis of her claims and
evidence led in support thereof
at the trial court as well as
her briefs before this court on
appeal.
One striking
observation made in the case is
the clear difference in the Land
Title Certificates held by
Plaintiff and Defendants,
GA11053 and GA3929,
respectively. This difference
promptly and presumptively shows
that both Plaintiff and
Defendants each hold title but
to two different lands. This is
confirmed by Plaintiff in her
defence to Defendant’s
counterclaim. At paragraph 4,
Plaintiff concedes thus:
“The
Plaintiff further says that the
Land the Asere Stool gave to the
Defendant is very different from
the Plaintiff’s land.”
Further, the
Plaintiff concedes in her
defence to the counter claim
that the site plan which the
Asere stool prepared for the
Defendants on the latter’s land
does not fall on Plaintiff’s
land. It is therefore surprising
even at the initial stage for
Plaintiff to seek to nullify
Land Title Certificate No.
GA3929, when she concedes that
her land and that of Defendants
are not the same. We are
therefore at a loss as to why
she will seek to nullify same.
She should rather be concerned
about producing evidence to show
that the land in dispute is the
one to which she holds Land
Title Certificate No. GA 11053.
This she failed to do at the
trial court but surprisingly
succeeded in her claim.
Then the next
and legitimate question is which
of the parties’ Land Title
Certificate corresponds to the
land in dispute. It is the
process of finding the right
evidence, we believe that was
what the learned trial High
Court Judge sought to do but
erred in the conclusion by
concentrating only on the
inconsistencies of DW1, the
surveyor for the Asere Stool,
which sadly was irrelevant.
The position
of the law, following from
Fofie
V Wusu [1992-93] GBR 877
is that it is the Plaintiff who
bears the burden of establishing
the identity of the land she is
laying claim to. Failure to
prove this identify is fatal to
a claim for declaration of
title.
In the above
case, the Court of Appeal,
Coram, Lamptey, Adjabeng and
Brobbey JJA (as they were then)
speaking with one voice through
Lamptey JA held as follows:
“To succeed
in an action for a declaration
of title to land a party must
adduce evidence to prove and
establish the identity of the
land in respect of which he
claimed a declaration of title.
On the evidence the plaintiff
failed to prove the identity of
the land claimed.”
See also:
i.
Kwabena v
Atuahene [1981]GLR 136
ii.
Anane v Donkor [1965] GLR SC and
iii.
Bedu v Agbi [1972] 2 GLR 238, CA
Let us
examine whether the plaintiff
discharged this basic
requirement satisfactorily from
the evidence on record.
In seeking to
establish the identity of the
land in dispute, Plaintiff
traced her title to the land
some 18years ago (which year
pointed to 1978), and according
to her she had been on the land
all those years without any
disturbance or interference from
any person. However, ironically,
Plaintiff then admits in
paragraph 8 of her statement of
claim that the Defendant per her
lawful attorney Stella Larbi
took an action of ejectment in
respect of the said land against
her tenants at the District
Court I, Osu, Accra, which case
was still pending at the time
the present suit was instituted.
The assertion of
non-disturbance, again, is
against the backdrop of the
uncontroverted evidence of
Defendant that her tenants were
in occupation of the land since
1973 and that it was the
Defendant’s husband, one Quaynor
who volunteered to be a
caretaker of the Defendants land
as the latter was suffering from
her knees and so could not visit
the land frequently. Indeed, not
quite long after the suit was
commenced, the original
Defendant died.
Of particular
interest was the evidence given
by the co-Plaintiff’s attorney.
It is apparent from the record
of proceedings that, the
Co-Plaintiff’s attorney, one
Festus, informed the court that
she joined the suit at the
invitation of the Plaintiff to
ASSIST THE COURT. It must be
noted that the attorney who
joined the suit at the
Plaintiff’s invitation did not
so join to affirmatively and
conclusively support Plaintiff’s
claim but only to assist the
court. Rightly so, in our
opinion, Festus’ evidence did
assist the court and was
determinative of whether the
Plaintiff’s claim succeeds or
not. Of course, notice is taken
of Co-plaintiff’s averments
where he pleaded in his
statement of claim that the
Asere stool has not leased the
land in dispute or any piece of
land around the disputed land to
the defendant herein. Suffice to
say, this is not the same as
saying the Asere stool did lease
the land in dispute to the
plaintiff.
Other than
confirming that both Plaintiff
and Defendants were granted land
by the Asere stool, and again
that the Plaintiff’s land is
separate from that of the
Defendant, Festus also had this
to say as is captured in the
record of proceedings:
“The
Plaintiff’s land is behind that
of the Defendant’s and so there
is a proposed road in the
Plaintiff land at one side. In
respect, the Plaintiff shares
boundary with the plot of the
Defendant at one side. The
proposed roads are now graded
and so the main road has eaten
into the Defendant’s land.”
It is this
portion of Festus’ evidence
which supports Defendant’s claim
in the case.
It is
definitely surprising that the
learned trial Judge ignored and
did not make any reference to
this in her judgment. The
evidence given by the Surveyor
who was tasked to survey the
land in dispute and make a
superimposition and to come up
with a composite plan of the
disputed land also finds no
place in that judgment. Having
been engaged by the court to
help settle the dispute, one
also expect that, being a
neutral or non-interested party
and an expert, his evidence
would be comparatively cogent in
determining whether Plaintiff’s
claims fail or not.
By the
evidence of the Surveyor, the
land as shown to the surveyor by
Salome Tetteh on the composite
plan was edged green while the
land as shown on the land title
registration plan of Salome was
edged black. On the other hand,
the land as shown to surveyor by
Mary Hayford, on the composite
plan is edged red while the land
as shown on the land title
registration plan for Mary
Hayford is edged blue.
A look at the
composite plan drawn by the
Surveyor after superimposition,
first of all, confirms the
evidence of both the Plaintiff
and the co-Plaintiff’s attorney
that both parties had different
lands granted to them by the
Asere stool. Further, it
confirms the evidence given by
the co-Plaintiff’s attorney, who
joined the suit at the
invitation of Plaintiff that the
Plaintiff’s land is BEHIND that
of the Defendant. Needless to
say, it goes to show that both
Plaintiff and Defendant hold two
different Land title
certificates and this is
evidence of the fact that each
surely has a land allotted to
her. But in answer to the
question as to who has properly
laid claim to the land in
dispute, it is the Defendant’s
evidence which is more
convincing.
As to the
fact that Defendant’s land, from
the surveyor’s composite plan,
was smaller than what she
claimed, the Court of Appeal was
right in following the decision
in
Nana Darko Frempong II v
Mankrado K Effah [1961] GLR
205-210. In that case
which involved a land dispute
between the chief of Aperade and
Achiasi, the court held that
estoppels could operate to
prevent a party from laying
claim to a land which formed
part of a bigger land, where the
latter has been a subject of
decision of the court. In its
decision, the Privy Council, per
Lord Guest held that “where it
is admitted that the lesser area
lies within the larger area of
land which was the subject of a
decision of the Privy Council,
it is immaterial whether or not
the outer boundaries of that
area are sufficiently clearly
defined”. Applying the reasoning
of the court to the present
case, the distinction made by
the trial court judge that the
Defendant’s land on the ground
which measured about 0.08 of an
acre more or less did not tally
with that given in the land
Title Certificate as 0.113 was
irrelevant and hence immaterial.
Using exhibit 2 as a guide and
the above decision, it is clear
that the Court of Appeal was
right in their review of the
facts of the case.
It is again
unfortunate that this
distinction is what amply
informed the trial court judge
to find for the Plaintiff.
Besides, the minimal distinction
in size goes to confirm what
Co-plaintiff’s Attorney said,
that the road may have eaten
into part of the Defendant’s
land.
At this
point, it is important to refer
to Exhibit 2, which is the
survey plan that was prepared
and tendered by the Surveyor
into evidence. The Court of
Appeal was in our view quite
right when it relied on the said
exhibit as follows:-
“Plaintiff
had consistently maintained that
the land given to the original
defendant by the stool was
completely different from her
land and that it was because
part of her land had been
reduced considerably by a
proposed road that she is now
laying claim to her
(plaintiff’s) land. Exhibit 2,
(page 140) the resultant plan
produced by the Court appointed
Surveyor, from the
superimposition of respective
site plans of the parties showed
the land allocated to the
original defendant falls within
the area in dispute numbered
116. In contrast, plaintiff’s
land indicated in her site plan,
numbered 114 and edged black is
completely outside the area in
dispute. This is consistent
with the testimony of the
Surveyor. It was a grave error
of law on the part of the Judge,
in preferring the oral
description given to the
Surveyor by the plaintiff as to
the position of the land she was
claiming as opposed to the clear
documentary proof contained in
her land certificate.” Emphasis
supplied.
This Court of
Appeal position is really in
tandem with the overwhelming
evidence on record both oral and
documentary that the land in
respect of which the plaintiff
sued, is outside the disputed
area. That being the case, and
since the initial allocation of
the burden of proof is on the
plaintiff before it will shift
to the Defendant later, it is
apparent that
the
plaintiff has failed to
discharge this burden.
Sections
10 and 14 of the Evidence Act,
1975 NRCD 323. See the
following cases where the
Supreme Court took pains to
explain sections 10 and 14 of
the Evidence Act, 1975 NRCD 323
referred to supra.
1.
Dzaisu v
Ghana Breweries Ltd [2007-2008]
SCGLR 539, holding 1 at 546-547
on section 14 of NRCD 323 per
Sophia Adinyira JSC
and
2.
Ackah v Pergah Transport Ltd.
[2010] SCGLR 728 holding 1
especially at 735-737 per Sophia
Adinyira JSC on section 10 of
NRCD 323
We are
therefore of the considered view
that, despite the lapses in the
conduct of the work of the
Surveyor which arose from the
inability of the parties to file
survey instructions to the
Surveyor, at least on the core
directive that the parties show
their bearings on the land and
produce their relevant land
documents and or site plans to
the Surveyor that mandate having
been done with overwhelming
evidence that the plaintiff’s
land is outside the disputed
area, the plaintiff based on the
evidence and law applicable,
must of necessity fail in her
action. This is because it is
clear that whatever the
Defendant has done on her land
in the area is outside the
plaintiffs land. We therefore
have no hesitation in dismissing
the plaintiff’s appeal as being
completely without any merit.
NEMO DAT QUOD
NON HABET
Again, as
rightly found by the Court of
Appeal, the Asere Stool having
divested itself of its interest
in the land in favour of the
original Defendant long ago in
1974, per the nemo dat quod non
habet maxim, had nothing (with
regard to the divested land) to
convey again, and so any
purported sale of the already
divested land to the Plaintiff
subsequently is null and void.
The Court of
Appeal stated in their judgment
the following statement which
captures the issue of the
priority of the grants to the
parties.
“The priority
of the grant to the original
defendant which was well before
the receipt of her new title
deed dated 27th July
1983, as opposed to the grant to
the Plaintiff in 4th
March 1990 which was long after
the original defendant started
various court actions including
the institution of this suit.”
The above is
a correct resume of the
chronology of events in this
appeal. The Court of Appeal also
aptly explained the dubious role
played by the Asere Stool in
muddying the waters.
We cannot but
agree with the Court of Appeal
that judicial notice is taken of
problems relating to changes in
succession to traditional stools
and problems encountered by
purchasers of land.
The
Defendants were tricked into
surrendering their mother’s
original indenture indicating
the grant to her by Nii Nikoi
Olai Amontia IV the Asere Mantse
who had died. If that document
had not been taken away, it
would have shown clearly that
the Defendants grant was clearly
made before Plaintiff. Even with
the present state of the facts,
it shows clearly that the
Defendant’s conveyance is
earlier in time to that of the
plaintiff.
There is an
obligation on a grantor, lessor
or owner of land to ensure that
any grant he purports to convey
to any grantee, or lessee is
guaranteed and that he will
stand by to defend the interest
so conveyed to any grantee or
lessee.
This
principle was explained by
Ollennu J (as he then was) in
the case of
Bruce
v Quarnor & Others [1959] GLR
292 at 294 as
follows:
“By native
custom, grant of land implies an
undertaking by the grantor to
ensure good title to the
grantee. It is therefore the
responsibility of the grantor
where the title of the grantee
to the land is challenged, or
where the grantee’s possession
is disturbed to litigate his
(the grantor’s) title to the
land. In other words, to prove
that the right, title, or
interest which he purported to
grant was valid”.
It would
appear that the Co-plaintiff, by
joining the suit to protect or
defend the plaintiff’s title,
did just that. But then, this
court would have to consider
whether on the basis of the
evidence on record, the
Co-plaintiff’s had any title
remaining in them to have
conveyed to the plaintiff in any
event.
This is
because, there is overwhelming
evidence on record that the
Defendant had an earlier
conveyance prior to the
Plaintiff’s conveyance on the
assumption that the parties in
this case are dealing with one
and the same parcel of land.
Acquah J, (as
he then was) in the unreported
Ho, High Court case
Suit No.
L/S23/90 dated 24th
October 1991
entitled
Helen Abdallah & 4 Others –
Plaintiff v Mr. and Mrs. Nunyuie
– Defendants, Kwasi Degbadzor &
Anr – Co-Defendants
relying on the Court of Appeal
case of
Wordie
v Awudu Bukari [1976] 2 GLR
at 381, held in the
Ho High Court case as follows:
“Be that as
it may, since the plaintiffs,
notwithstanding their statement
of claim and Exhibit A, now
concede that the land belongs to
the Akpomegbe family, and from
my holding that Akpo sold same
in his own right as his father’s
property, it follows that Akpo
did not have title in the
transaction he concluded with
the late Madam Tamakloe. The
principle nemo dat quod non
habet therefore applies.
Accordingly, although the
plaintiffs Exhibit A is valid so
far as the necessary legal
formalities are concerned, yet
it conveyed nothing to the
plaintiff’s mother.”
This court
also held on the nemo dat quod
non habet maxim in the
unreported consolidated suit No.
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 Okyeame Yima & Anr -
Plaintiff/Respondents/Respondents
v Major Keelson-
Defendant/Appellant/Appellant
as follows:
“It can thus
be safely concluded that, the
principle nemo dat quod non
habet applies whenever an owner
of land who had previously
divested himself of title in the
land previously owned by him to
another person, attempts by a
subsequent transaction to convey
title to the new person in
respect of the same land cannot
be valid. This is because an
owner of land can only convey
what he owns, and having already
divested himself of title, the
new occupant of the Begoro Stool
Nana Antwi Awuah III cannot
revoke what his predecessor had
done.”
See also
Sasu v
Amua Sakyi [1987-88] 2 GLR 221,
holden 7 at pages 241 per
Wuaku JA (as he then was).
It is
therefore clear that, assuming
the disputed land is the same
parcel of land that both
Plaintiff and Defendants lay
claim to, on the principle of
nemo dat quod non habet, the
Plaintiff must still fail in his
appeal. The Court of Appeal was
thus right in dismissing the
appeal.
CONCLUSION
In the
premises, this appeal fails and
is accordingly dismissed. Save
for the deletion of the order
contained in the last sentence
on page 191 of the appeal record
to wit that “and since the
defendants are the only
claimants they are entitled to
be declared indisputable owners
of the land” the entire
Court of Appeal judgment of 22nd
July, 2010 is hereby affirmed.
The Plaintiff’s case thus fails
in its entirety.
(SGD) J. V. M.
DOTSE
[JUSTICE OF THE SUPREME COURT]
(SGD) S. A. B. AKUFFO
[MS.]
[JUSTICE OF THE SUPREME COURT]
(SGD) DR S. K.
DATE-BAH
[JUSTICE OF THE SUPREME COURT]
(SGD) S .O. A. ADINYIRA
(MRS.)
[JUSTICE OF THE SUPREME COURT]
(SGD) V. AKOTO-BAMFO [MRS.]
[JUSTICE OF THE SUPREME COURT]
COUNSEL;
CHARLES
BAWADUAH FOR THE APPELLANT.
GODWIN K.
NTONY FOR THE RESPONDENT. |
