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DR. TWUM, J.S.C.:
This is an appeal from the
judgment of the Court of Appeal
dated 22nd November
2001. It allowed in part the
appeal lodged by the Appellant
herein against a previous
judgment of the Circuit Court
delivered in favour of the
Respondents herein on 18th
August 1998.
Pleadings
In the Circuit Court, the first
Respondent herein (then
Plaintiff) sued the first
Appellant for these reliefs:-
-
Declaration of title to a
piece or parcel of land at
Chuim, Odorkor.
-
Recovery of possession
-
General damages for trespass
-
Perpetual injunction
The Plaintiff traced his root of
title to a conveyance dated 11th
October 1977, made between Nii
Nikoi Amontia IV, Asere Mantse
of Accra on the one hand and the
Plaintiff on the other. This
deed of conveyance was stamped
as AC 11330/77. It was, however,
not registered. The Plaintiff
pleaded that his said land was
situated at Chuim,
Odorkor-Accra, “containing an
approximate area of 0.34 acre
and bounded on the North East by
a proposed road measuring 130
feet more or less, on the South
West by the Vendor’s land
measuring 130 feet more or less,
on the South East by the
Vendor’s land measuring 120 feet
more or less and on the North
West by Mutual Union’s property
measuring 120 feet more or
less.”
The Plaintiff further averred
that in 1978 the Defendant
trespassed on to his said piece
or parcel of land.
The Defendant (Appellant) denied
the Plaintiff’s claim and
pleaded that the land claimed by
the Plaintiff formed part of a
larger area of land owned by the
Gbawe Kwatei family. He denied
trespassing on the Plaintiff’s
land. He also pleaded that even
though he was the Gbawe Mantse,
he was not the custodian or
owner of Gbawe family lands.
After pleadings had closed Adam
Kwatei Quartey, head of the
Gbawe Kwatei family applied and
was joined to the suit as
Co-Defendant by an order dated 9th
October 1978. In his amended
statement of defence the
co-Defendant denied that the
land in dispute belonged to the
Plaintiff. He averred that
rather, the land being claimed
by the Plaintiff formed part of
a larger area of land owned by
his family – the Gbawe Kwatei
family. He described the
boundaries of their land as
follows: “On the North-East by
the Asere Stool land, on the
South-East by the Akumajay and
Sempe stool lands and the Sakumo
Plains, on the South-West by the
Tetegbu Stream, Densu River and
James Town land, and on the
North-West by Djanmang Hill,
Aboabo Hill, Kubenan Hill and
Atuase Hill.” He pleaded
estoppel per rem judicatam,
against the Plaintiff relying on
the High Court judgement in the
case of Kwatia Asuansah
Owoo-Papafio vrs. Amadu Wangara
& Others (Suit No.
107/1961). He claimed that the
High Court gave judgment in
favour of the Gbawe Kwatei
Family in respect of the land in
dispute.
The Plaintiff also made an
application for the joinder of
(i) Asere Mantse and (ii) Narko
Konkai Tawia as Co-Plaintiffs.
The application to join Asere
Mantse was refused but an order
was made for the joinder of
Narko Konkai Tawia as
Co-Plaintiff. The title of the
Suit was therefore amended to
read:
1. Samuel K
Ntiri
-
Plaintiff
2. Narko Konkai
Tawia
- Co-Plaintiff
vrs
1. Gbawe
Mantse
-
Defendant
2. Adam Kwatei
Quartey
- Co-Defendant
The Co-Plaintiff issued a fresh
writ of Summons accompanied by a
statement of claim against the
Defendant and Co-Defendants. The
substantive claim was for “the
recovery of the whole land
called CHUIM, Odorkor, Accra,
being a gift of the late P.D.
Hammond, Asere Mantse, and his
elders, dated October 1917 to
Gbawe Tawia, whose legal
successor is the Co-Plaintiff,
the possession of which same
land is confirmed by the January
1955 judgement of the Manyo
Plange Commission of Inquiry and
illegally appropriated by the
defendants.”
This was clearly irregular.
Fortunately, the trial court
proceeded as though the two
suits had been consolidated.
On 14th March 1988,
the Solicitors for the
Co-Defendants gave notice that
at the hearing of the Summons
for Directions, they would apply
for an order appointing a
surveyor to prepare “a composite
plan of the disputed area”.
At the Summon for Directions,
the court appointed C. O. Sowah,
a Qualified Surveyor, to “Survey
the land in dispute”. It would
appear that the Surveyor did not
have full co-operation from the
parties in carrying out the
survey instructions filed by
them. In view of this, he
decided that he would conduct a
detailed survey of the lands in
dispute “to acquaint” himself of
the facts thereon. It was
alleged that the Defendant’s
representatives did not meet the
surveyor on the designated dates
to take him along the boundaries
of the lands they claimed. On 17th
September 1990 the court noted
that “the surveyor appointed as
the Court Surveyor has conducted
the survey works apparently on
instructions of the plaintiffs.
It is hereby left to the
defendant to hire his own
surveyor if he wishes.” On 19th
June 1991, the Court ordered the
Registrar of the court to write
to the Surveyor, Mr C. O. Sowah,
asking him to appear in court to
give evidence. In its judgment ,
the court noted (p.155) that “by
the time the said Surveyor was
hauled into court to interpret
the plan he had drawn, senility
had set in and his evidence was
totally incomprehensible”.
The surveyor appointed by the
Defendants, Mr Okai Lartey,
submitted his plan, Exhibit 6,
to the court and he was
cross-examined extensively on
it. I am sure that the
disability of Mr C. O. Sowah
affected in no small measure the
outcome of this litigation.
The Evidence
In his evidence in-chief, the
Plaintiff testified that in
February 1977 he bought a plot
of land near Accra-Winneba Road
at Chuim which is separate from
Odorkor and Gbawe. He said he
bought it from Mr D. S. Botchway
who gave him a document. He said
when he got the land he went
into possession. He cleared it
and fixed corner pillars. He
claimed that he did not enjoy
peaceful possession. The Gbawe
Mantse sent people to destroy
the corner pillars and
eventually took the land from
him.
The Plaintiff said he knew that
the area where he had his land
was for the Gbawe Tawia people.
He said they were given the land
in October 1917 by the Asere
Mantse, called D. P. Hammond. He
continued his testimony by
saying that he took the document
given to him by his vendor to
the Lands Department for
processing and he was told that
the land fell within the Asere
Stool land. He therefore
approached the Asere Mantse, Nii
Amon Nikoi Amontia IV, who gave
him another document covering
the land, dated 11th
October 1977. He said, he could
still not register his land
because the land was being
claimed by the Gbawe Mantse. He
sued Co-Plaintiff in this case
because she became the successor
to Botchway, his original
vendor. He tendered the document
given him by Botchway dated
February 1977 as Exhibit A. The
document given to him by Asere
Mantse was tendered as Exhibit
B. He said he knew that the
Court surveyor submitted a plan
to the court and he tendered a
copy as Exhibit C. It was dated
30th April 1990.
In her testimony, the
Co-Plaintiff said she was the
successor of Gbawe Tawia.. She
said she knew that the Gbawe
Tawia land was at Twuim and that
was where she was staying. She
said the land was owned by the
Asere Mantse and that they were
living on Asere’s land. She said
this Tawia looked after Asere
land for a long period and he
was gifted a portion of it. She
tendered a copy of the document
evidencing the gift – dated 15th
October 1917 – as Exhibit D. She
added that she caused a site
plan to be drawn in relation to
Exhibit D. She tendered a copy
of the site plan as Exhibit E.
She said the land given to
Plaintiff is from the land
identified in Exhibit E. She
added that the distance from the
Plaintiff’s land to the Winneba
Road was approximately 50
metres.
Under cross-examination, the
Co-Plaintiff admitted that her
father, Twuim Tawia, confirmed
in the suit entitled Owoo
Papafio v Amadu Wangara that
part of Twuim village was on
Gbawe land. She also testified
that her father admitted that
Twuim village was founded on the
boundary between Gbawe people
and Asere Stool. She also
admitted that in Exhibit D,
Asere Mantse recognized that
Asere stool shared boundary with
Gbawe Tawia family on the left.
She denied that she gave any
information to her surveyor to
prepare Exhibit E. She said the
surveyor simply measured the
land. She further denied she
indicated the area to him to
survey. She said the surveyor
used the document he was holding
to prepare the plan. She
confirmed that that document was
the one Asere Mantse gave to her
father, (i.e Exhibit D). She
insisted that there was a plan
in Exhibit D. This was, of
course, plain untruth. It could
not be. After a lot of
questioning about the boundaries
of the land she was claiming for
her family, she admitted that
she knew only about the land
measured to her.
The Second Defendant, Nii Adona
Kwatei Quartey gave evidence. He
said he was a farmer and head of
family of Gbawe Kwatei family.
He said he owned Gbawe family
land. He denied trespassing on
land of Plaintiff. Rather it was
the Plaintiff and Co-Plaintiff
who had stolen their land. He
confirmed that half of Twuim
village was on Asere land and
the other half was on Gbawe
land. He tendered copies of
proceedings in the 1953 pipe
line acquisition and the 1962
Papafio v Amadu Wangara
litigation as follows:
Exhibit 1 dated 5.4.62
Wangara: Proceedings
Exhibit 2 dated 1.2.63
Judgment
Exhibit 3 dated 3.1.62
Plan Wangara
Exhibit 4 dated
26.7.91 Pipe line
litigation
He said Asere land was different
from Gbawe family land. He said
at Twuim his family shared
boundary with the Asere.
In cross-examination, he
admitted that Asere people gave
land to Twuim documented and
dated 15th October
1917. He said he did not know
the extent of the gifted land
and added that in any event, it
was on Asere’s land and not on
Gbawe land. He denied that the
gift of 1959 was the same as the
1917 gift. He said he took part
in the demarcation of Twuim
Bawa. The 1959 gift was tendered
through him as Exhibit 9. It was
dated 2nd November
1959 and he denied that he had
been giving portions of it away.
He said there was a boundary
separating the 2 halves (See p.
109 lines 10-19.) He said the
land given to Odorgonno is Asere
land and that had nothing to do
with them.
It was suggested to him by
Counsel for the Co-Plaintiff
that Ablekuma Road is a boundary
of the land that was given to
the father of Co-plaintiff by
Asere stool (i.e 1917 gift) He
answered by saying “I have
already indicated that this
Ablekuma Road is the boundary
between Gbawe and Asere.”
Trial Court Decision
After a full trial, the Court
gave judgment on 18th
August 1998. It granted all the
reliefs endorsed on the
Plaintiff’s writ of summons. It
further ordered the Registrar of
the Court “to appoint a surveyor
from the Lands Department and
with the assistance of the
Police to map out area granted
to Co-Plaintiffs in accordance
with exhibits D and G. The
Defendant was to be mulcted with
the costs of the exercise. The
area mapped out to be declared
as owned by the co-plaintiff and
her grantees including the
plaintiff.” It awarded the
Plaintiff and Co-Plaintiff ¢3
million damages for trespass as
well as costs of ¢500,000.00.
The Defendant and Co-Defendant
were dissatisfied with the
judgment and on 14th
September, they appealed against
it to the Court of Appeal. Their
grounds of appeal were:-
(i)
The judgment was against the
weight of the evidence before
the trial court.
(ii)
The learned trial judge
completely ignored the pleas of
estoppel set up by the
Appellants and failed to give
any consideration whatsoever to
the said pleas and their legal
consequences
(iii)
The learned trial judge erred in
setting up for the Respondents a
case which the Respondents had
not themselves put forward, and
entering judgment for the
Respondents on the case so set
up by the Court.
(iv)
The trial court entered judgment
for the Respondents for
declaration of title to land,
damages for trespass and
perpetual injunction when there
was no certainty as to the
extent of the area claimed by
the Respondents. In the results,
the trial Court felt compelled,
in its judgment, to order the
appointment of a surveyor to map
out, after judgment, the 2nd
Respondent’s land for the area
so mapped out, “to be declared
as owned by the Co-Plaintiff and
her grantees including the
Plaintiff”.
(v)
The learned trial judge in
ordering the appointment of a
surveyor to map out the 2nd
Respondent’s land and declaring
the plan so made by the Surveyor
as representing the property of
the Co-Plaintiff without
reference back to the Court and
without any opportunity for the
Surveyor to be cross-examined,
abandoned judicial
responsibilities and ceded her
judicial powers to the said
surveyor. The judgment is
perverse in this respect and
ought to be set aside.
(vi)
The learned trial judge in her
judgment, allowed herself to be
influenced by matters irrelevant
to the issues before her, as a
result of which a grave
miscarriage of justice has been
occasioned to the Appellants.
On 19th August 1999, the
Appellants filed the following
additional ground of appeal.
(vii)
The learned trial judge failed
to appreciate the nature of the
claim before her and allowed her
attention to be diverted from
the real issues before her. In
the result a grave miscarriage
of justice was caused.
The Court of Appeal Judgment
The court of Appeal gave its
judgment on 22nd
November 2001, and save for some
minor changes, confirmed the
judgment of the trial Court.
The Appellants were again
aggrieved by and dissatisfied
with the above Court of Appeal
judgment and after obtaining
leave on 6th February
2002, appealed to this Court on
13th February 2002.
In particular, they complained
against:-
(a)
that part of the judgment
upholding the claim of the
Plaintiff/Respondent/Respondent
and entering judgment for him in
respect of the land claimed.
(b)
Accepting Exhibit E as properly
representing the land allegedly
gifted to the family of the
Co-Plaintiff/Respondent/Respondent
by the Asere stool in 1917.
They relied on the following
grounds of appeal:
(i)
Having regard to the fact that
Exhibit D, by which the Asere
Stool was purported to have made
a grant of land to the family of
the Co-Plaintiff in 1917 merely
mentioned “Gbawe people’s land”
as lying on the West of the land
without giving any boundary
marks or bearings, the Court of
Appeal erred in holding that the
principle in Anto v Mensah 3
WALR 218 @ 225 was not
applicable to the present case.
(ii)
Exhibit E was self-serving
document and the Court of Appeal
erred in relying upon it in
determining the issue whether or
not the land claimed by the
Plaintiff was located on Asere
land or on Gbawe land.
(iii)
The holding of the Court of
Appeal that the land claimed by
the Plaintiff was located
outside Gbawe land was against
the weight of evidence before
the court.
The Supreme Court
Appellants made a valid case in
their grounds (i) and (ii)
above. For coherence, I will
treat them together.
Exhibit D, the 1917 grant was
obviously a home-made document
prepared without legal
assistance. There are no
distances given of the boundary
features mentioned thereon.
There are no compass points
given. Therefore without the
boundary owners agreeing on
where their lands met the shape
and extent of the gifted land
could not be determined with the
particularity required of a
claimant who asks a court for a
declaration of title to a piece
of land.
When the Co-Plaintiff tendered
in evidence Exhibit D (the 1917
“conveyance) she said, “I caused
a site plan to be drawn in
relation to Exhibit D. I have
the site plan.” It was admitted
as Exhibit E. Under
cross-examination, the following
dialogue took place:
Q: “The information you gave to
Surveyor to produce the plan is
wrong.”
A: “The surveyor measured it”.
Q: “You indicated the area to
him to survey.”
A: No I did not. He used the
document he was holding to
prepare the plan”.
From the Co-Plaintiff’s evidence
the only document the surveyor
had was Exhibit D, the “1917
conveyance”. On the face of it,
one OSEKERE, a licensed
Surveyor prepared it. He
certified that the plan was
“faithfully and correctly
executed and accurately shows
the land within the limits of
the description given to me by
my client.” This certificate
creates difficulties for the
Co-Plaintiff. If the
Co-Plaintiff really did not give
the Surveyor any instructions as
to the boundaries, (as she
testified), then the Surveyor’s
certificate was false.
The Plaintiff testified that he
was aware that the
Court-appointed surveyor, Mr
Sowah, prepared a plan of the
area in dispute. He said he
obtained a copy and tendered it
in evidence as Exhibit C. It was
dated 30th April
1990.
The parties could not
cross-examine Mr Sowah on his
work, because as the trial court
put it in its judgment: (pg 155
of the record) “By the time the
said surveyor was hauled into
court to interpret the plan he
had drawn, senility had set in
and his evidence was totally
incomprehensible”. Indeed, the
evidence of the Surveyor Mr
Sowah was not even recorded.
The boundary features stated in
Exhibit D are not those
delineated on Exhibit E. For
example, one prominent feature
mentioned in Exhibit D but
missing from Exhibit E is the
Kwashiman-Ablekuma Road. What is
shown at the extreme
north-western corner of Exhibit
E is Ablekuma-Awoshie Road.
There is no evidence on record
that this is the same as the
Kwashiman-Ablekuma Road.
Further, it is clear from
Exhibit E that this
Ablekuma-Aworshie road is not
even shown as a boundary
feature. Indeed, nobody
testified that it was. The
following feature, mentioned in
exhibit D is also missing from
exhibit E: Lalaifio’s land.
Further, Exhibit E was titled
“Land in Dispute” and not “Land
Gifted to Gbawe Tawia by Asere
Stool, 1917” or words to that
effect. With all respect to the
Court of Appeal, Exhibit E could
not, without more, show, as the
Court said it did: “the extent
of the land described in Exhibit
D.”
A look at Exhibit D confirms
that the land gifted to Gbawe
Tawia in 1917 formed boundary
with Gbawe people’s land on the
West. But the Court of Appeal
wrongly deduced that this was an
indication that there was a
common boundary between Asere
and Gbawe and proceeded to pose
the question: “where is the
boundary between Asere and
Gbawe? If this issue is resolved
the other issues will follow as
a matter of inference.” The true
situation was that after Asere
had gifted the land to Gbawe
Tawia, his gift was interposed
between Gbawe people’s land and
Asere stool land. The
quintessential issue was to
determine on the ground what
feature separated this gifted
land from the land of the Gbawe
people. The Co-Plaintiff, it
will be recalled, claimed
“recovery of the whole land
called CHUIM, Odorkor, Accra,
being a gift of the late P D
Hammond, Asere Mantse and his
elders, dated October 1917, to
Gbawe Tawia … illegally
appropriated by the defendants.”
The Co-Plaintiff relied on
exhibit E, but this did not
indicate precisely what the
boundary in question was. The
Co-Plaintiff could not tell what
precisely marked their boundary.
The Co-Defendant said in
evidence that Ablekuma Road
marks their common boundary. But
was he necessarily referring to
the western boundary? The
eastern boundary of the land
gifted to Gbawe Tawia was the
Kwashiman-Ablekuma Road. The
Court of Appeal chose as a
reference point, Odorgonno
Secondary School and said “this
Ablekuma Road lies to the west
of Odorgonno Secondary School on
Exhibit E. As I have indicated
above, the road mentioned in
Exhibit E is not this Ablekuma
Road. Rather it is
Ablekuma-Aworshie road.
Now the Court of Appeal held
that “of all the maps put in
evidence at the trial, it is
only Exhibit E which clearly
positions the Ablekuma road.”
With all respect, that was not
correct. The Court-appointed
surveyor tendered Exhibit C.
This is the one that clearly
shows Ablekuma Road. It runs
through and divides the land
delineated therein into two. It
also answers the description
that it lies to the west of
Asere land. And if I may quote
the words of the Court of Appeal
– “it is not difficult to accept
the road as the boundary, being
a significant boundary feature”.
The other boundaries in Exhibit
D were not in dispute,
particularly as the Co-Defendant
admits that the Odorgonno
Secondary School land belongs to
Asere. It is obvious then that
the Co-Defendant’s land does not
extend beyond Ablekuma road
towards Odorgonno Secondary
School. By the same token, the
Co-Plaintiff’s land ends at the
Ablekuma Road and does not
extend beyond that road in the
general direction of the Winneba
Road.
Now, as has been pointed out
above, the Co-Plaintiff had no
dispute with the Asere stool.
The only admission made by the
Co-Defendant relates to the
Ablekuma road as the boundary
feature that divides the
Co-Plaintiff’s land from the
Co-Defendants land. In these
circumstances, there has been no
judicial determination of all
the other boundaries mentioned
in Exhibit D and the
Co-Plaintiff is therefore not
entitled to the declaration she
sought. I will dismiss that
claim.
Now to the Plaintiff’s land. His
land is virtually on the
periphery of the Accra-Winneba
road. It is by the discussion
above right in the land of the
Co-Defendant.
This is made manifest in
Exhibits C and 6. The
Co-Plaintiff herself confirmed
that the “land given to the
Plaintiff is from the land
identified in Exhibit E.” The
co-ordinates quoted by the Court
of Appeal at p. 371 of the
record are wrong. They are
rather longitudes 1166000 and
1167000 and latitudes 330,000
and 331000. I have pointed out
above that Exhibit E was meant
to indicate the land in dispute.
Now, the acceptance of Ablekuma
road as the boundary between
Gbawe people’s land and the
gifted land shows that as the
Court of Appeal itself put it,
Exhibit E exceeded the land
specified by Exhibit D. The
Plaintiff’s land is therefore in
the Gbawe people’s land.
One other matter. The Plaintiff
admitted that his document of
title Exhibit A or B, was not
registered. Counsel for the
Co-Defendant took the point that
in those circumstances, it was
of no legal effect until it was
registered by virtue of section
24 (1) of the Land Registry Act,
1962, (Act 122). He cited the
Court of Appeal cases of
Asare v Brobbey (1971) 2 GLR
331 at 336 and Ayitey v
Mantey (1984-86) 1 GLR 552
and submitted that the effect of
the Act was to make the document
not valid for all purposes
because the formality of
registration was necessary to
complete its validity. The Court
tried to save this document by
suggesting that it was tendered
without objection. With all
respect to their Lordships, a
document such as the Plaintiff’s
cannot be the basis of a
judicial decision because it is
inadmissible per se. In the case
of Thompson v Mensah
(1957) 3 WALR 240 at 245, the
court pointed out that the fact
that the documents in question
were admitted without objection,
was immaterial. The documents
purported to convey stool land
and they had to have consent of
the Ga State Council. They did
not, and each was declared to be
null and void and of no effect.
In this particular case, the
mandatory provisions of the Land
Registry Act 1962 (Act 122)
cannot be waived. Each of
exhibit A or B was ineffective
to pass any title in the land to
him. The Court of Appeal tried
to avoid the consequences of
non-registration by saying that
the document was tendered to
confirm a transaction between
the Asere Mantse and the
Plaintiff; it also confirmed the
identity of the land covered by
the transaction. “The Plaintiff
testified that this document
could not be registered because
of an adverse claim by the
defendant/appellant herein. In
these circumstances, the
document was admissible in
exposition of the purposes for
which it was executed by the
parties. It would be unjust for
the court to reject the document
at the behest of the defendant,
the very person at whose
instance, the document could not
be registered.”
In Amefinu v Odametey,
(1977) 2 GLR 135, CA, the Court
pointed out that “the language
of Act 122 makes it clear that
an attempt to register or
presentation for registration
cannot be equated to
registration. Either a document
is registered or it is not
registered and the Act does not
take cognizance of incomplete
process for registration.” As
Selwyn L. J. said in In re
London Marine Insurance
Association (1869) L. R.
4Ch. 611 @ 614, “it is not the
duty of a court of law to be
astute to find out ways in which
the object of an Act of the
Legislature may be defeated.”
Accordingly we uphold the
objection and declare both
exhibits A and B to be of no
legal effect. In the result the
Plaintiff’s claims are dismissed
for all the reasons given above.
The appeal is allowed.
(Sgd) S.
A.B. AKUFFO (MISS)
JUSTICE OF THE SUPREME COURT
“
DR. S. TWUM
JUSTICE OF THE SUPREME COURT
“
DR. S.K.
DATE-BAH
JUSTICE OF THE SUPREME COURT
“
J. ANSAH
JUSTICE OF THE
SUPREME COURT
“
R.T. ANINAKWAH
JUSTICE OF THE SUPREME COURT
COUNSEL:
Mr. Aduama Osei for Appellant.
Mr. Atta Akyea for Respondent.
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