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JUDGMENT
LARTEY, J.A.:
This appeal is from the
judgment of the High Court, Accra dated the 28th day of
January, 1991, and it was brought by the
defendant/appellant (hereinafter simply referred to as
the defendant). On the 29th January, 1987 the
Plaintiff/Respondent (hereinafter also referred to as
the Plaintiff) commenced an action against the
defendant, claiming among other reliefs, for an order
nullifying a conveyance purporting to have been executed
by the plaintiff in favour of the defendant.
The plaintiff avers
that he owns a parcel of land at Dzorwulu, Accra for
which he had been in undisputed possession since 1960.
In 1985 he was approached by a prospective purchaser for
the sale of a portion of the land for which he received
¢20,000. According to the plaintiff he gave the
prospective buyer a copy of his site plan to enable the
purchaser to satisfy himself from a search at the Lands
Department, after which the sale transaction would be
concluded or perfected. The search, however, revealed
the existence, at the Lands Title Registry of a document
of conveyance purporting to bear the plaintiff's
signature and purported to have conveyed a portion of
the plaintiff's land to the defendant. The plaintiff
denied knowing the defendant and denied having anything
to do with him in connection with the disputed land or
the disputed document.
The plaintiff further
avers that upon being confronted later, the defendant
confessed that a wrong person had sold, or conveyed
title in, the plaintiff's land to him.
For his part, the
defendant claimed that the plaintiff introduced himself
to him in 1985 as owner of the disputed land. According
to the defendant, he bought the land from one Kwesi
Tetteh, a Togolese, who prepared a conveyance on the
land to him, the same having been registered in the
Deeds Registry as No. 1609/84. In addition the defendant
stated that the said Kwesi Tetteh brought him a document
evidencing transfer of the land from the plaintiff to
the defendant. He claims he had no doubt about the
genuineness of the signature on the document purporting
to be that of the plaintiff, as indeed subsequent police
report on the document proved him right. He denied
giving a confession statement to the plaintiff and
maintains that he has valid title to the disputed land.
The defendant counterclaimed for a declaration that he
is the owner in possession of the land in dispute. He
also counterclaimed for the return of the sum of
¢50,000.00 with interest thereon alleged to be money the
plaintiff took on 30th June, 1985 with a view to
reselling the land to him.
I preface this judgment
with an examination of the notice and additional grounds
of appeal filed in this case against the background of
the relevant rule in C.I.19 (The Court of Appeal Rules,
1997 as amended). Rule 8(7) thereof states:
"The appellant shall
not, without the leave of the Court, urge or be heard in
support of any ground of objection not mentioned in the
notice of appeal, but the Court may allow the appellant
to amend the grounds of appeal upon such terms as the
Court may think just."
The requirement for
entertaining any ground not mentioned in the notice of
appeal is that the appellant, prior to being heard in
argument in support of the grounds of appeal, must have
obtained leave of the court or leave to amend any of the
grounds of appeal. Failure to comply with the sub-rule
empowers the court to preclude any argument that may be
canvassed in support of the grounds. In this case, there
is nothing to show that leave was first granted the
defendant, who now appeals, before he filed his long
list of additional grounds. Again the written submission
of the plaintiff offers no clue as to whether leave was
first obtained by the defendant. The plaintiff's
submission merely states certain facts as perceived by
the plaintiff without answering the several specific
points of law raised in the additional grounds of
appeal. Although the notice of appeal refers to other
grounds to be filed upon the record of proceedings being
made available, it is important to stress the need for
strict compliance of the rules for the purpose of
regularising any defect or omission that may be
discovered in the appeal process.
I now turn to the
additional grounds of appeal as if granted with the
leave of this court. But before proceeding further, I
would like, for the sake of convenience, to deal with
the grounds in groups since many of them are replicate
of others. For instance, a close look at the additional
grounds will reveal that ground (x) replicate grounds
(iii) and (iv). That being the case, it is simpler and
more convenient to deal with them together.
The import of those
grounds is simply that it was the plaintiff who lodged a
complaint of forgery with the police against the
defendant, and therefore it was the plaintiff who bore
the burden of persuasion on the issue of the signature -
the subject matter of the police report. It was further
argued that the trial court erred in failing to attach
due weight to the signature, which to all intents and
purposes, negatived the charge of forgery on the part of
the defendant.
This argument seems to
suggest that the clue to the charge of forgery was
solved once and for all by the so-called police report,
which was never seen by the trial court. In other words,
since the police concluded that the signature was that
of the plaintiff the court should have entered judgment
for the defendant. I will respectfully disagree with
this line of argument, because of the view I hold that
the signature per se is not the sole element to look for
in deciding the issue of forgery having regard to the
peculiar circumstances of this case. The question may be
posed as to whether it is not uncommon for persons with
criminal intent to superimpose genuine signatures on
forged documents for the purpose of robbing victims of
their valuable assets? If the answer is in the
affirmative, one will not be tempted to conclude that
the signature alone should be the deciding factor to
tilt the balance in favour of the defendant.
It seems to me that the
better approach or option is to look at the document as
a whole to discover other pieces of evidence of forgery.
The relevant document in this case is exhibit 'B' which
purports to convey title in the disputed land to the
defendant. A close examination of exhibit 'B' will show
that if indeed any interest in the land was assigned to
the defendant through Kwesi Tetteh, it is Kwesi Tetteh's
name which would appear on it as purchaser and not the
name of the defendant. Alternately, if the land was sold
by Kwesi Tetteh as claimed by the defendant, Kwesi
Tetteh's name would appear on the document at the
vendor.
Furthermore, Kwesi
Tetteh on exhibit 'B' purported to be present,
presumably as a witness to the execution of the
document. Therefore the defendant could not validly
derive any title from someone described merely as a
witness in this particular instrument. Again, before
this action was mounted and even with the help of the
police neither Kwesi Tetteh nor Baffour Kyei could be
traced, although both names appear in the document. The
irresistible inference is that both names are imaginary,
designed to from part of a grand design in furtherance
of the forgery intent. And even if the police concluded
that what appeared thereon was the plaintiff's
signature, it was, as alluded to above and in all
probability superimposed on the document to give it a
semblance of genuineness. It is my view therefore that
the argument relating to the plaintiff's signature on
exhibit 'B' will in no way strengthen the defendant's
case, because the whole document is spurious. I entirely
agree with the learned trial judge's observation on the
point when he said that "nothing much turns on the
signature."
I propose to deal with
additional grounds (vi), (vii) and (viii) together which
relate to "police report" and the alleged failure on the
part of the plaintiff to discharge the burden of proof
on that issue. I concede that under section 14 of the
Evidence Decree, 1975 (NRCD 323) the burden of
persuasion is normally on the party whose case the fact
is essential in this case the plaintiff. The complaint
lodged by the plaintiff on the issue of forgery no doubt
contemplated criminal prosecution of the perpetrator.
The police in the normal course of their work examined
the signature and came to the conclusion that it was the
plaintiff's signature.
Notwithstanding that
finding, it ought to be noted that at the time hearing
of this civil action commenced the issue of signature
had ceased to be of essence to the plaintiff's case. And
since it was no longer essential to his case, the
plaintiff had no obligation to, as it were, drag the
police into a purely civil litigation. I do not think
the non-involvement of the police in this matter amounts
to failure on the part of the plaintiff to discharge the
burden of proof.
As I indicated earlier
on in this judgment, there are sufficient pieces of
evidence on the record from which inference of forgery
can be made, the signature or police report
notwithstanding. I find no merit in those grounds.
Grounds (xi) and (xii)
raise the principle of bona fide purchaser for value
without notice. By that principle, a purchaser of
property for valuable consideration should not be
prejudicially affected by notice of any instrument, fact
or thing unless it is within the purchaser's own
knowledge. But will the principle apply to the benefit
of the defendant in this case? From the evidence of the
defendant during cross-examination the following
questions and answers appear:
"Q. Have you ever seen
the document which made Kwesi Tetteh owner of the land?
A. No.
Q. Before you bought
the land did you make a search?
A. No.
Q. Did you see a
document between Kwesi Tetteh and anybody about this
land?
A. No. "
From the defendant's
own admissions it is obvious that he failed to mount his
own inquiry or inspection which could have revealed any
incumbrance on the property purported to have been
bought in good faith.
In my view, failure to
make his own search or satisfy himself of the existence
of a genuine document made between Kwesi Tetteh and the
plaintiff will not entitle the defendant to seek
protection of the law under the maxim. These additional
grounds should equally collapse.
Turning to the first
ground of appeal, it is difficult to agree with learned
counsel for the defendant that the trial court's
judgment is unreasonable. In the first place, it was the
case of the defendant that he bought the property from
Kwesi Tetteh who in exhibit 'B' is only a witness and
who thumb-printed in that capacity. There is nothing in
the said document which suggests that title in the
disputed land resides in Kwesi Tetteh. Accordingly Kwesi
Tetteh had nothing to pass on to the defendant, and the
defendant on his part obtained no interest for which he
seeks a declaration of title to the disputed land as per
his counterclaim. I think the maxim nemo dat quod non
habet is clearly applicable because no one, as in the
instant case, can give that which he has not. In the
result the first and second reliefs in the counterclaim
cannot succeed.
With regard to the
third prayer of the counterclaim, it is pertinent to
note that the date for the payment of the ¢50,000.00 was
on 30 June, 1985.
Now at the tail and of
his counsel's written submission in this appeal, the
defendant applies for leave for the withdrawal of the
money claim and substitute same for an order for
specific performance with a further order for the
defendant to pay the balance of the purchase price. The
date of payment of the ¢50,000.00 as disclosed in the
counterclaim seems to me to be quite significant. If
part-payment for the land was made on the said date, the
inference was that there had been an agreement between
the parties to resell the disputed land to the
defendant. If that was the case then what was the need
for writing exhibit 'C' dated 8th September, 1985
wherein the defendant promises to meet the plaintiff on
10th September, 1985 "to settle the land case which was
given to Mr. Osei by wrong person Mr. Tetteh Kwesi"?
This exhibit debunks the defendant's story that before
8th September, 1985 there had been an agreement by which
the plaintiff was to resell the land to him. The money
he gave to the plaintiff was certainly not for the
purchase of land; it was for something else, possibly
for the purpose of pacifying the plaintiff for his
ordeal during his arrest and detention by the military
personnel. This explains why no receipt was issued for
the payment. If the money was meant to cover
part-payment for an interest in land the defendant might
have promptly pressed for the issuance of a receipt,
since any transaction about land should be evidenced in
writing by a memorandum.
Again if the money paid
by the defendant was for the conveyance of an interest
in land, why did he fail to counterclaim for an order
for specific performance in the first place? Why did the
defendant counterclaim for a refund of ¢50,000.00 with
interest thereon at a time when he knew that the payment
was for the purchase of land? His sudden turn for an
order for specific performance is an after-thought
simply because he failed to get what he wanted, namely
the transfer of an interest in the land to him by the
plaintiff.
The plaintiff does not
dispute accepting the ¢50,000.00 and as stated earlier
from the evaluation of the evidence on the record, the
payment was not made upon the contemplation of a promise
to convey any interest in the land to the defendant. The
explanation given by the plaintiff was that the
defendant came to refund the money which the plaintiff's
cousin paid on his behalf when he (the plaintiff) was in
custody of the military police. According to the
plaintiff, the defendant expressed regret for having put
him (the plaintiff) in "that position". The trial judge
ordered that the ¢50,000.00 be refunded to the defendant
with interest at the current bank rate from September,
1985 to the date of the judgment, I find the order a
little strange and disturbing because the refund is not
based on any contract for which the consideration has
failed. I find no justification in the order so made. I
think the whole counterclaim should have been dismissed,
and it is so dismissed by this court.
In the result, this
appeal is dismissed and the judgment of the trial court
in favour of the plaintiff is affirmed. The plaintiff
will have his costs fixed at ¢5,000,000.00.
F. M. LARTEY
JUSTICE OF APPEAL
OWUSU, J.A.:
I agree with my brother
that the appeal be dismissed and have this to say:—
Additional grounds
(iii) to (x) touch on a police report referred to in the
evidence of both parties and the judgment of the trial
court.
The report is in
respect of the Plaintiff/Respondent's alleged signature
on EX"B", on indenture purportedly prepared by the
Respondent in favour of the Appellant. The Respondent
denied that the signature is his signature and had the
occassion to lodge a complaint of forgery in respect of
same with the police.
The evidence is that
the signature was certified as that of the Respondent.
This report was never tendered at the trial nor was the
maker of that report called as a witness before the
court for him to be cross-examined with a view to
testing how he arrived at the conclusion that the
signature is that of the Respondent.
In his judgment, the
trial judge in dealing with the signature, had this to
say;
"Nothing much turns on
the signature," and this counsel for the Appellant in
ground (iii) says, is a misdirection and error of law
since the report was prepared following the Respondent's
own complaint of forgery to the police. The trial judge
could not dwell on a report which was not before the
court and the veracity of which had not been tested in
court.
In view of the
Respondent's denial that the signature is his, the
principle of law is that the Appellant who sought to
rely on it, and was alleging the positive had to prove
the authenticity of the signature. In the absence of any
such proof, I am unable to appreciate how the trial
Judge misdirected himself and erred in law by how he
treated the alleged report on the signature as nothing
of much importance.
In the light of EX "C"
which is an acknowledgment by the Appellant that the
land was given to him "by wrong person Mr. Tetteh Kwesi,
he relinguished his hold on EX "B" as conferring title
on him.
After all, in EX "B" he
and the Respondent are the parties to the transaction.
Kwesi Tetteh is not his alleged vendor. It was never his
case that the Respondent sold any land to him. That if
anything at all, there was only an agreement to sell the
land to him as he contended. The Respondent did not
accuse the Appellant of forgery. All that he claimed was
that the signature on Ex "B" is not his signature.
Indeed, I am in
complete agreement with the trial Judge that "nothing
much turns on the signature" and that for the reasons
already stated, EX "B" could not confer any title on the
Appellant.
ROSE OWUSU (MS.)
JUSTICE OF APPEAL
ANIM, J.A.:
I agree.
S. Y. ANIM
JUSTICE OF APPEAL
COUNSEL
Willie Amarfio for
Respondent.
David Nii Amponsah for
Appellant. |
