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Land - Declaration - Ownership -
Order for possession - Evidence
- Burden of proof
- Whether or not the Jackson
Report of 1956 settled the
boundaries between Nungua and
Teshie in favour of Teshie
including “Martey Tchuru”
village - whether the
traditional owners of the piece
of land the subject matter of
the dispute is the Nungua Stool
or the Martey Tsuru family -
Whether the judgment is against
the weight of evidence.- Whether
or not the Respondent
discharged the Burden of Proof
to establish its Claim
HEADNOTES
The Respondent filed in the High
Court, Accra a claim for
declaration of title and an
order for possession of land in
Accra measured about 2.59 acres,
bounded on the North by the
Accra-Tema Motorway, on the
South by the Spintex Road on the
east by Bank of Ghana Annex
(Warehouse) and on the West by
open space. The Respondent
claimed the land through a grant
from one Pendergrass Borketey
Alabi son of Nii Tsui Alabi a
subject of Nungua stool who
traced his initial grant from
the Nungua Stool. The 1st
Appellant counterclaimed for
declaration of title and
possession of the land claiming
same formed part of Martey Tsuru
Family lands. The 2nd
Appellant also counterclaimed
for a part of the Respondent’s
land, being 1.9 acres based on
an assignment from Stanford
Development Services Company Ltd
[SDCS] dated 24 February 2006.
SDCS got 18.7 acres of part of
the land in dispute from the 1st
Appellant by virtue of a
conveyance dated 14 December
1993. The Respondent answered
Appellants by stating that the
disputed land lies outside the
lands which 1st
Appellant had referred to as
Martey Tsuru lands, which in any
case were originally part of
Nungua ancestral land that the 1st
Appellant family who came from
Teshie years ago, settled on.
The trial judge dismissed their
counterclaim and entered
judgment in favour of the
Respondent declaring it as the
owner of the land the subject
matter of the dispute. This
decision was affirmed by the
Court of Appeal. The Appellants
being dissatisfied appealed to
this on the following grounds
HELD :-
On the preponderance of
the evidence we are satisfied
the Respondent was able to lead
unchallenged evidence of his
grantor’s root of title. We
therefore find no reason to
disturb the finding of the trial
judge’s decision that the
Respondent was entitled to his
claim. In the circumstances we
will not interfere with the
concurrent findings by the Court
of Appeal..Accordingly
we dismiss the appeal based on
grounds a) and b). For the same
reasons we dismiss ground d)
From the foregoing, we dismiss
the appeal and affirm the
judgment of the Court of Appeal.
DISSENTING OPINION
STATUTES REFERRED TO IN JUDGMENT
Accra - Tema Motorway, E.I.46
of 1973
Industrial Site from the Martey
Tsuru Family, E.I. 140 of 1976
CASES REFERRED TO IN JUDGMENT
Effisah v Ansah [2005-2006]
SCGLR 943
Mensah Larkai v Ayitey Tetteh
[2009] SCGLR 621
Mensah v Ghana Football
Association [1989-90]1
Abekah v. Ambradu [1963] 1 GLR
456 AT 464.
Oppong Kofi v Awulae
Attribrukusu 111 (2011) 1 SCGLR
176;
Re Asamoah (deceased) Agyeiwa &
Others v Manu [2013-2014] 2
SCGLR 909.
Achoro v Akanfale [1996-97]
SCGLR 209;
Koglex Ltd v Field [2000] SCGLR
175;
Ntiri v Essien [2001-2002] SCGLR
494;
Sarkodee v F. K. A. Co Ltd
[2009] 2 SCGLR 79;
Awuku-Sao v Ghana Supply Co Ltd
[2009] SCGLR 710
DJIN v MUSAH BAAKO (2007-08)
SCGLR 686
Mondial Veneer (GH) Ltd v Amuah
Gyebu XV [2011] 1SCGLR 466.
Awukuv Tetteh [2011] 1SCGLR 366
Akoto v Avege [1984-86] 2GLR
365.
Amuzu v Oklikah [1998-99] SCGLR
141
BOOKS REFERRED TO IN JUDGMENT
The Jackson Report of 1956
DELIVERING THE LEADING JUDGMENT
ADINYIRA (MRS), JSC:
COUNSEL
KOFI BOSOMPEM FOR THE
PLAINTIFF/RESPONDENT/RESPONDENT.
SAMMANI M. ZACHARY FOR THE
DEFENDANT/APPELLANT/APPELLANT.
_____________________________________________________________________
J U D G M E N T
_____________________________________________________________________
ADINYIRA (MRS), JSC:
This is an appeal against the
judgment of the Court of Appeal
dated 30 March 2016 which
affirmed the judgment of the
High Court in favour of Yehans
International Ltd, the Plaintiff
Respondent/Respondent
[Respondent] as against the
Martey Tsuru Family and 18th
July Ltd.; the 1st
and 2nd Defendants/
Appellants/ Appellants
respectively [1st and
2nd Appellants
respectively]
BRIEF FACTS
The Respondent filed in the High
Court, Accra a claim for
declaration of title and an
order for possession of land in
Accra measured about 2.59 acres,
bounded on the North by the
Accra-Tema Motorway, on the
South by the Spintex Road on the
east by Bank of Ghana Annex
(Warehouse) and on the West by
open space. The Respondent
claimed the land through a grant
from one Pendergrass Borketey
Alabi son of Nii Tsui Alabi a
subject of Nungua stool who
traced his initial grant from
the Nungua Stool.
The 1st Appellant
counterclaimed for declaration
of title and possession of the
land claiming same formed part
of Martey Tsuru Family lands.
The 2nd Appellant
also counterclaimed for a part
of the Respondent’s land, being
1.9 acres based on an assignment
from Stanford Development
Services Company Ltd [SDCS]
dated 24 February 2006. SDCS got
18.7 acres of part of the land
in dispute from the 1st
Appellant by virtue of a
conveyance dated 14 December
1993.
The Respondent answered
Appellants by stating that the
disputed land lies outside the
lands which 1st
Appellant had referred to as
Martey Tsuru lands, which in any
case were originally part of
Nungua ancestral land that the 1st
Appellant family who came from
Teshie years ago, settled on.
The trial judge dismissed their
counterclaim and entered
judgment in favour of the
Respondent declaring it as the
owner of the land the subject
matter of the dispute. This
decision was affirmed by the
Court of Appeal.
The Appellants being
dissatisfied appealed to this on
the following grounds
GROUNDS OF
APPEAL
a)
That the judgment is against the
weight of evidence.
b)
That the learned Justices of the
Court of Appeal, with respect
erred when they failed to place
the same degree of burden of
proof on the Respondent’s case
as they did on the Appellants’
counterclaim.
c)
That the learned Justices of the
Court of Appeal, with respect,
erred when they upheld the 2nd
Appellant’s ground of appeal (f)
and yet proceeded to affirm the
judgment of the trial High
Court.
d)
That the learned Justices of the
Court of Appeal erred in law
when they affirmed the judgment
of the trial Court when same was
given per incuriam.
Particulars of Error of Law
The Respondent [Plaintiff]
asserted during trial that the
land in dispute was previously
acquired by Executive Instrument
46 (E.I. 46) and compensation
given to the Nungua Stool
however, there was no evidence
of another Executive Instrument
revoking E.I. 46 which renders
the judgment of the Court of
Appeal void.
e)That the learned Justices of
the Court of Appeal, with
respect misdirected themselves
on the effect of the Jackson
Report of 1956 which was heavily
relied upon by the Appellants
and opposed by the Respondent
Particulars of Misdirection
i.
The Jackson Report of 1956
settled the boundaries between
Nungua and Teshie in favour of
Teshie including “Martey Tchuru”
village and
ii.
the Court of Appeal was in error
when it held that it will not be
proper to declare title on the 1st
Appellant alone on the basis of
the Jackson Report when
reference in the Jackson Report
was to Teshie.
i.
The Court of Appeal failed to
take into account the fact that
the land in dispute does not
fall anywhere near or within
Nungua Stool lands.
f)That the learned Justices of
the Court of Appeal, with
respect erred when they agreed
with the trial High Court that
the Respondent had succeeded in
proving recent acts of
possession over the land in
dispute.
Consideration
The central issue arising from
the above grounds of appeal for
determination before this Court
is no different from what the
two courts below determined in
favour of the Plaintiff that is:
whether the traditional owners
of the piece of land the subject
matter of the dispute is the
Nungua Stool or the Martey Tsuru
family.
Before we proceed we wish to
make the following observation
about three major undisputed
facts in this case. The first
being the traditional evidence
that the Nungua Stool was the
original owners of the area of
land largely occupied by the
people of Teshie. The second
being that the location of the
area in dispute is situated near
the Bank of Ghana Annex
(Warehouse) on its East side and
bounded on the North by the
Accra-Tema Motorway and bounded
on the South by the Spintex
Road. Thirdly, the Respondent
traces its root of title from
the Nungua Stool whereas the 2nd
Appellant traces its root of
title from the Martey Tsuru
family, the 1st
Appellant herein.
Initially the Respondent claimed
the land was part of land
acquired by the government from
the Nungua Stool to construct
the Accra - Tema Motorway, by
E.I.46 of 1973; while on the
other hand the Appellants
claimed the land was part of
government land acquired for the
creation of an Industrial Site
from the Martey Tsuru Family, by
E.I. 140 of 1976 and in the
course of the trial the
Appellants claimed it formed
part of land the government
intended to acquire for use for
military training but gave it
back to the Martey Tsuru Family.
They tendered a letter dated 21
April 1978 of Nii Ashikwei
Akomfra111 of Teshie to the
Chief Lands Officer confirming
Martey Tsuru lands but not the
site plan referred to in the
letter. The site plan of those
lands released by the military
authorities did not get close to
the disputed land.
In any event in their
submissions before the Court of
Appeal the lawyers for both
parties were ad idem that the
land in dispute was not
government land in that it was
not affected by any compulsory
land acquisition. Accordingly
the learned justices of appeal
upheld Counsel for the
Appellants ground of appeal that
the trial court erred in holding
that the area in dispute fell
within E.I. 46. Notwithstanding
this holding, the Court of
Appeal affirmed the part of the
judgment of the trial court that
the Plaintiff was entitled to a
declaration of title to the land
on the basis that the Plaintiff
was able to establish ownership
of the land.
Surprisingly Counsel for the
Defendants premised an appeal in
ground d) of their notice of
appeal on the trial judge’s
erroneous finding on EI. 46;
which states:
That the learned Justices of the
Court of Appeal erred in law
when they affirmed the judgment
of the trial Court when same was
given per incuriam
Particulars of Error of Law
The Respondent [Plaintiff]
asserted during trial that the
land in dispute was previously
acquired by Executive Instrument
46 (E.I. 46) and compensation
given to the Nungua Stool
however, there was no evidence
of another Executive Instrument
revoking E.I. 46 which renders
the judgment of the Court of
Appeal void.
Counsel submitted that “…the
Respondent who originated the
action ought to have had its
case dismissed because part of
its case before the trial High
Court was that the land in
dispute which formed part of a
larger land of its grantor
(Nungua Stool) has been acquired
on (sic) by E.I. 46…instead of
reversing the trial court’s
judgment based on this, rather
upheld the Appellant’s ground of
appeal on this error, and
nevertheless affirmed the trial
Court’s judgment.”
As Counsel for the Respondent
rightly pointed out, the
Appellant was making a mountain
out of an anthill partly due to
a slip in the cross-examination
of PW1. He submitted that the
Court of Appeal rightly glossed
over the inconsistency relying
on Effisah v Ansah
[2005-2006] SCGLR 943 where
it was held that:
“Where inconsistencies or
conflicts in the evidence are
clearly reconcilable and there
is a critical mass of evidence
or corroborative evidence on
crucial or vital matters, the
court would be right to gloss
over these inconsistencies.”
We will summarily dismiss this
ground of appeal as the law is
well-settled that an appellate
court can affirm the decision of
a lower court which is correct
but founded on wrong reasoning.
See the cases of Mensah
Larkai v Ayitey Tetteh [2009]
SCGLR 621 at 634; Mensah v Ghana
Football Association [1989-90]1
at 8; Abekah v. Ambradu [1963] 1
GLR 456 AT 464.
We accordingly dismiss ground d)
of the notice of appeal.
So the over-arching issue to be
determined is whether the
learned justices of appeal
assigned the right reasons for
their decision. This brings us
to consider grounds a) and b) of
the grounds of appeal
Grounds a) and b)
1.
That the judgment is against the
weight of evidence.
2.
That the learned Justices of the
Court of Appeal, with respect
erred when they failed to place
the same degree of burden of
proof on the Respondent’s case
as they did on the Appellant’s
counterclaim.
Counsel for the Appellants
submits that the learned
justices of appeal failed to
review and evaluate the whole
evidence and wrongly placed the
burden of proof on the
Appellants.
We take note that the Court of
Appeal per Lovelace-Johnson JA
, stated at page 565 Vol. 2 of
the record of appeal [ROA ]
that: “Such a ground of
appeal implies that the
conclusions reached by the trial
judge are not justified by the
evidence on record…” and
therefore they were bound by
numerous authorities to “…review
the whole of the evidence,
documentary and oral, adduced at
the trial and come out with a
pronouncement on the weight of
evidence in support of the
judgment of the trial court or
otherwise”; while referring
to the cases of
Oppong Kofi v Awulae
Attribrukusu 111 (2011) 1 SCGLR
176; Re Asamoah (deceased)
Agyeiwa & Others v Manu
[2013-2014] 2 SCGLR 909.
The learned justice dutifully
identified all complaints and
list of exhibits which the
Appellants claim should have
been applied in their favour at
pages 566 – 570 Vol. 2 of the
ROA. The learned Justice
considered every single exhibit
laid before them by the
Appellants as well as the oral
testimonies of all the parties
at the trial and came to the
conclusion that the Respondent
had succeeded in proving the
title of its grantor, i.e. the
Nungua Stool, its mode of
acquisition and acts of
possession in respect of the
disputed land.
Since an appeal is by way of
rehearing our focus would be to
look closely at the totality of
the record, and draw the
necessary inferences from facts
that were clearly established by
both oral and documentary
evidence adduced at the trial.
.However it is settled law that
an appellate court such as this
ought not to disturb findings of
fact by two lower courts unless
the findings are perverse. See
for example Achoro v Akanfale
[1996-97] SCGLR 209;
Koglex Ltd v Field [2000] SCGLR
175; Ntiri v Essien [2001-2002]
SCGLR 494; Sarkodee v F. K. A.
Co Ltd [2009] 2 SCGLR 79;
Awuku-Sao v Ghana Supply Co Ltd
[2009] SCGLR 710. In
Achoro, supra at 214
to 215, per Acquah JSC (as he
then was) made the following
proposition:
“Now an
appeal against findings of facts
to a second appellate court such
as this court, where the lower
appellate court had concurred in
the findings of the trial court,
especially in a dispute, the
subject matter of which is
peculiarly within the bosom of
the two lower courts or
tribunals, this court will
therefore not interfere with the
concurrent findings of the
lower courts unless it is well
established with absolute
clearness that some blunder or
error resulting in a miscarriage
of justice, is apparent in the
way in which the lower tribunal
dealt with the facts.”
Furthermore as we stated in of
DJIN v MUSAH BAAKO (2007-08)
SCGLR 686 per Aninakwah JSC
at page 691:
“It has been held in several
decided cases, and the
authorities are many, that where
an appellant complains that
judgment is against the weight
of evidence, then he is implying
that there were certain pieces
of evidence on the record which
if applied in his favour could
have changed the decision in his
favour, or certain pieces of
evidence have been wrongly
applied against him.”
Counsel for the Appellants
enumerated some of the pieces of
evidence adduced before the
trial court which he argued;
both the trial judge and the
court below either completely
ignored or did not give them any
weight. These are Exhibits1, 2,
3, 4, 5 ,6, 7,8,9,11, and
evidence of DW1 and Cyril Yeboah
and the lack of evidence of an
instrument revoking E.I.46
(Exhibit D)..
We on our part dutifully
examined the exhibits to
ascertain whether the learned
justices of appeal committed
some blunder or error in the way
in which they dealt with the
facts.
The Appellants tendered exhibits
and site plans to show the
extent of Martey Tsuru family
lands. However we find that the
area in dispute is not captured
in their land title certificate;
and from their evidence they
decided it had to be part of
Martey Tsuru lands when they
realized the area in dispute did
NOT fall within the area
acquired by Government by an
E.I.140.
This explanation appears to be
far-fetched as DW1; John
Christian Acquah who testified
for the 1st Appellant
was the Greater Accra Regional
Surveyor at the time the survey
plan was prepared by him for the
Martey Tsuru family. He had
custody of all plans of
government lands in that area
and it is rather unlikely that
he was ignorant of government
acquisitions. He carried out the
survey and produced the site
plan in 1992 for the Martey
Tsuru Family without any input
from other families settled in
that area We are inclined to
believe that the area of the
land in dispute was not included
in the site plan of Martey Tsuru
Family Lands as that area did
not form part of their lands. It
is as simple as that.
It seems to us that the 1st
Appellant was vacillating
between two stories that the
land in dispute was part of the
land acquired for a Light
Industrial Area by E.I. 140 and
on the other that it was part of
land earmarked for military
training but released to them,
indicate the family was out to
take over any vacant land within
their vicinity.
Further, an evaluation of the
evidence shows that Plan No Y
1043CC, tendered as exhibit “17”
was prepared on 13/6/2013, i.e.
during the pendency of the suit.
That document prepared by the 1st
Appellant which seeks to connect
the disputed land to exhibit
“15” entitled “Site for Martey
Tsuru Family Lands” without any
input from the Plaintiffs can
rightly be described as
self-serving and worthless as
held by the Court of Appeal.
Their lordships were justified
in not attaching any weight to
this survey plan.
Counsel further referred to
Exhibits12, 13 and 14 being
judgments of the High Court and
Court of Appeals, which he said
were in favour of neighbors of
the 1st Appellant as against the
Nungua Stool.
After examining these judgments
we find the boundaries of the
respective lands in those
litigations shared no boundary
with the area in dispute and are
therefore irrelevant to
determine the appeal before us.
Another judgment relied on by
the Appellants was the Jackson
Judgment of 1952 which formed
the basis of
ground e) of the notice of
appeal; and therefore convenient
to consider at this point.
Ground e) supra
Counsel for the Appellants
referred us to the Jackson
Judgment which declared the
Teshie Stool owner of the area
acquired for the Infantry
Training School.
This ground of appeal is quite
trivial. Contrary to submissions
by Counsel for the Appellants,
the Jackson Judgment did not
settle the general boundaries
between the three stools of
Nungua, Teshie and Labadi as the
remit of the inquiry was limited
to compensation of a particular
area acquired for use as an
Infantry training school.
Jackson J. held that from
traditional history, the Nunguas
were the first occupants of the
land which they permitted the
people of Teshie to settle there
and were paying annual tolls of
a sheep and drink to the Nungua
Chief but there was no evidence
of recent memory of such
payments. Jackson J concluded
that at the time of the
acquisition of the land it was
the Teshie Stool that was in
possession and so entitled to
compensation.
The judgment describes the land
the subject matter of the
inquiry which is nowhere near
the area in dispute, and it does
not help the 2nd
Appellant’s attempt to prove the
title of its grantor land.
The Court of Appeal in examining
Exhibit 11 held it will not be
proper to declare title of the
disputed land in the 1st
Appellant’s family alone on the
basis of this judgment when
reference in the judgment was to
Teshie Stool.
We do not find any error in
this finding as ownership was
declared in the Teshie stool and
the Martey Tsuru family cannot
use such pronouncement to
bolster its claim. In any event,
Teshie Lands are known to end at
the Railway Line, the land for
the Infantry training school
lies on the Southern portion of
the Accra-Tema Railway line.
Meanwhile the Martey Tsuru
family claim not to have settled
in Teshie but to have settled in
the area between the Railway
line and the Accra-Tema
Motorway.
However it was clear from the
evidence on record that the land
near the Bank of Ghana Annex
Warehouse does not lay on the
land where the Martey Tsuru
family settled.
We now turn to the main issue
before us.
The Issue Relating to Whether
the Respondent discharged the
Burden of Proof to establish its
Claim
It is settled and trite law that
a person claiming title has to
prove: i) his
root of title, ii) mode of
acquisition and iii) various
acts of possession exercised
over the disputed land. See
Mondial Veneer (GH) Ltd v Amuah
Gyebu XV [2011] 1SCGLR 466.
This can be proved either by
traditional evidence or by overt
acts of ownership in respect of
the land in dispute. A party who
relies on a derivatory title
must prove the title of his
grantor, Awukuv Tetteh [2011]
1SCGLR 366. Further, to
prove ownership through
possession, the possession must
be long, peaceful and
uninterrupted. See the case
of Akoto v Avege [1984-86]
2GLR 365.
The Respondent gave evidence
through Cyril Yeboah its Chief
Executive Officer. He said his
company required land for its
factory building and was shown
the land in dispute which was
vacant. He said he met the
owner who showed him copies of
his indenture over the land
dated 9th February
1996 and signed by the Nungua
Stool for his grantor,
Pendagrass Borketey Alabi @
Borketey Alabi. His grantor
explained to him that he was
processing his title deeds at
the Land Title Registry. After
negotiations he paid for the
land and documents of transfer
were executed for his company.
He tendered the deed of
assignment dated 30th
May 2002. Plaintiff was put in
vacant possession after the
grant and they deposited
building materials on it. They
regularly cleared the land
without any challenge and took
some soil sample for test in
South Africa. Then in December
2006 the Appellants entered the
land and commenced development
at very fast rate. Respondent
therefore swiftly sued in the
High Court, and obtained an
injunction restraining the
Appellants pending the final
determination of the suit.
Kpakpo Sraha, PWI, a secretary
of the Nungua stool, gave
evidence on behalf of the Nungua
Stool to the effect that the
lands surrounding the 2.59 acres
in dispute had from time
immemorial been Nungua Stool
land. He explained that Nungua
was the first to acquire the
land from the coast to the
Akwapim mountain by settlement.
In 1710, Teshie Township was
established at the coast by a
family from Labadi who got the
land from the Nungua. Stool. He
said with time people from
Teshie like the Martey Tsuru
family settled on other lands
belonging to the Nungua Stool
but the disputed land was never
settled on and remained Nungua
Stool land.
He said the lands commencing
from Baatsona Railway towards
the Spintex Road to the
Accra-Tema motorway and beyond
belongs to the Nungua Stool. He
tendered an indenture of 1953
[Exhibit C], by which the Nungua
Mantse, Nii Afotey Adjin II
granted land for the
construction of the Accra- Tema
Railway to the Government of the
then Gold Coast.
He also referred to E.I. 46
whereby the Government acquired
part of Nungua Stool Lands for
the construction of the Tema
Motorway leaves; and said that
the Bank of Ghana Warehouse and
other light industries were on
part of this land. He said
compensation was paid to the
Nungua owners of the land.
Evidence of long, peaceful and
uninterrupted occupation and
possession of the land in
dispute was given by PW2, Nii
Tsui Alabi, the father of the
Respondent’s grantor. He said
in about 1954-56 when he was
young, he was following his late
father to farm and rear cattle
on that land. They got to know
that the government, had
acquired in 1973 by E.I. 46, a
portion of the land adjacent to
the Accra- Tema Motorway, which
did not affect where they were
settled. So they went to the
Nungua Stool for a grant of
their portion of land, to be
made in the name of his son
Pendergrass B. Alabi.
The Respondent also in proof of
his possession of the land said
after they got their grant they
deposited sand and stone on the
land, they cleared the land
without challenge and took some
soil samples to South Africa.
They could not develop the land
as they were still waiting for
funding from their partners and
processing their documents. In
December 2006, the Appellants
entered the land and commenced
development at a very fast rate
and he therefore issued a writ
and obtained an injunction
restraining the appellant.
Significantly the evidence of
acts of possession by PW2, the
grantor’s father of the very
land the parties were litigating
over was never challenged under
cross-examination conducted on 5th
July, 2012, by both lawyers.
That in effect means that the
Appellants had admitted those
acts of ownership testified to
by PW2 which were in respect of
the 2.59 acres in dispute.
The 1st Appellant
based his root of title on long
occupation of the Martey Tsuru
Family land which they claim was
not part of Teshie Stool lands.
The 1st Appellant
claimed the land in dispute was
part of Martey Tsuru Family
lands which was acquired for the
Accra-Tema Motorway Industrial
Area in 1976 by E.I.140.
In view of our earlier holding
that the
that the area in dispute is not
captured in the land title
certificate and site plans of
the Martey Tsuru Family Lands;
and from their own evidence that
they decided it had to be part
of their lands when they
realized that it did NOT fall
within the area acquired by
Government by a E.I.140, we do
not see how the 1st Appellant
can succeed on their claim to
this portion of land based on
this evidence.
The 1st Appellant led
evidence that upon knowing that
the area in dispute was not
government land they applied to
the Town and Country Planning
Office to zone the place into a
light industrial area and they
started to develop it. It is our
considered opinion that
the alleged zoning of the land
is not unequivocal evidence of
ownership by the 1st
Appellant.
If the alleged zoning is weighed
against the evidence that the
land in dispute lies within
Nungua Stool Land and in the
vicinity of land acquired by the
government from the Nungua Stool
to construct the Leave ways of
the Tema Motorway and PW2’s
unchallenged evidence of his
family’s farming activities on
the said land, the scales tilt
in favour of the Respondent.
Meanwhile PW1’s assertion in
cross examination that it was
the Nungua stool which gave land
to Regimanuel Estates, Coca
Cola, Kasapreko, and the Spintex
factory was not denied.
Certainly these pieces of
evidence carry more weight as
evidence relating to long
ownership and title to the land
than to judgments related to
plots of lands neither directly
connected to nor share boundary
with the disputed land. They
also outweigh 2nd
Defendant’s three month building
activities.
We may also add that since the
land was adjacent to the
Accra-Tema Motorway and it is by
the E.I.46 that portions of
Nungua land was acquired by the
Government for the construction
of the Leave ways of the Tema
Motorway, then the legal
position is that any vacant
land, lying in that environs
remained Nungua Stool lands;
which on the evidence happened
to be part of where the Alabis
were farming as subjects of the
Nungua Stool.
An analysis of the Respondent’s
case shows that it did not base
its claim on any registered
document. For that reason
whatever flaws there are in the
said land documents cannot by
themselves be sufficient reasons
for vitiating the grant to the
Respondent especially when he is
relying on acts of possession
and traditional evidence of his
grantor’s predecessor good
title.
On the other hand the 2nd
Appellant based his claim on an
assignment from [SDSC] which in
turn had their grant from the
Martey Tsuru family and tendered
a land title certificate in its
favour. The evidence of acts of
possession was the construction
of a fence wall which
precipitated this action,
building of a warehouse,
construction of a foundation and
erection of pillars. The
Respondent in his evidence said
at the time he issued the writ
the 2nd Appellant had
only laid a foundation but he
quickly continued with the
construction works.
Our attention was drawn to the
indenture executed between
Martey Tsuru Family and SDSC
Ltd. SDSC had a lease from the 1st
Appellant family part of land
reserved in their layout for
cemetery in 1993 which purported
grant SDSC Ltd had registered at
the Lands Commission. In an
action by the Head and Principal
Elders of 1st
Appellant family against SDSC
Ltd and the Executive Secretary
of the Lands Commission in the
High Court, Accra and in a
decision delivered on 9th
May 2000, the 1993 grant to SDC
Ltd was declared null and void
and an order made for the Lands
Commission to expunge it from
their records. SDSC Ltd
thereafter entered a settlement
with the lawful authorities of
the1st Appellant’s
family and filed a consent
judgment on 28/4/2003.
Based upon that consent
judgment, 1st
Appellant executed a document
dated 14th May, 2003
making a fresh grant to SDSC Ltd
which is found at pp 89-93 Vol.
1 of the ROA. The recitals of
this Deed stated that it is
executed pursuant to the Consent
judgment. Taking a look at the
attached site plan of the
indenture, we can see that the
land that is clearly
delineated on the site plan
[page 91 Vol. 1] does not extend
Northwards beyond the Spintex
Road.
The only reasonable conclusion
to be drawn from this site plan
is that SCSD‘s land fall outside
the area in dispute and below
the Spintex Road. The site plan
of the Martey Family Lands show
that their portion of the land
ends at Spintex Road which is
their Northern boundary.
Accordingly we hold that the
land granted to SDCS was
different from the land the
subject matter of this dispute.
It follows that SDCS Ltd
could not in turn assign part of
the land in dispute to the 2nd
Appellant; and so the 2nd
Appellant got nothing. The
registration by the 2nd
Appellant of his document of
title, per se, does not defeat
the unregistered interest of the
Respondent as in any event a
registered instrument does not
create an indefeasible title.
See Amuzu v Oklikah [1998-99]
SCGLR 141. This is now trite
learning.
On
the preponderance of the
evidence we are satisfied the
Respondent was able to lead
unchallenged evidence of his
grantor’s root of title. We
therefore find no reason to
disturb the finding of the trial
judge’s decision that the
Respondent was entitled to his
claim. In the circumstances we
will not interfere with the
concurrent findings by the Court
of Appeal.
.Accordingly we dismiss the
appeal based on grounds a) and
b). For the same reasons we
dismiss ground d)
From the foregoing, we dismiss
the appeal and affirm the
judgment of the Court of Appeal.
S.O.A ADINYIRA (MRS)
(JUSTICE OF THE SUPREME COURT)
ANSAH, JSC:-
I agree with the conclusion and
reasoning of my sister Adinyira,
JSC.
J. ANSAH
(JUSTICE OF THE SUPREME COURT)
YEBOAH, JSC:-
I agree with the conclusion and
reasoning of my sister Adinyira,
JSC.
ANIN YEBOAH
(JUSTICE
OF THE SUPREME COURT)
P. BAFFOE-BONNIE, JSC:-
I agree with the conclusion and
reasoning my sister Adinyira,
JSC.
P. BAFFOE- BONNIE
(JUSTICE OF THE SUPREME COURT)
APPAU, JSC:-
I agree with the conclusion and
reasoning of my sister Adinyira,
JSC.
Y.
APPAU
(JUSTICE OF THE SUPREME COURT)
COUNSEL
KOFI BOSOMPEM FOR THE
PLAINTIFF/RESPONDENT/RESPONDENT.
SAMMANI M. ZACHARY FOR THE
DEFENDANT/APPELLANT/APPELLANT.
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