HONYENUGA, J.A.

This is an appeal by the plaintiff/appellant (hereinafter referred to as the plaintiff) against the judgment of the High Court, Cape Coast, dated the 31^st day of July, 2015. The said court entered judgment in favour of the defendant/respondent (hereinafter called the defendant) on her reliefs claimed. Costs of GH¢10,000.00 was awarded against the plaintiff.

The facts of this appeal were that the plaintiff claimed to have acquired a total of twenty-four (24) plots of land from Nai Odupon Awushie the head of Anona family and the chief of Odupong Ofankor in July 2001 for a period of ninety-nine (99) years. He registered the land in 2006 and assigned eighteen (18) plots to others leaving six (6) plots that are in dispute. He discovered acts of trespass in 2006 and in 2007 and so he undertook a search which revealed that the trespasser which later turned out to be the defendant did not acquire the land in dispute and despite all warnings to her, she persisted. Unable to contain the defendant’s claim to the land in dispute, he caused a writ of summons to be issued out against the defendant claiming the following reliefs:-

“1. Declaration of title to six (6) plots of land lying and situate at Odupong Ofankor, near State Housing Kasoa and known as plot numbers 34, 35, 36, 37, 38 and 39 respectively.

2. Recovery of possession of the said land.

3. Damages for trespass.

4. Perpetual injunction.

5. Cost”.

The writ of summons was accompanied by a fifteen (15) paragraph statement of claim. The defendant entered appearance and caused a statement of defence and a counterclaim which was later amended. The plaintiff then filed a Reply to the amended statement of defence and defence to counter-claim. An application for directions were taken and the following issues were agreed and set down for hearing of the case:-

“(a) Whether the plaintiff acquired the land in dispute from the Nai Odupong Awushi, Head of the Anona family and Chief of Odupong Ofankor-Kasoa.

(b) Whether the said land was duly registered at the Lands Commission – Cape Coast.

(c) Whether the said registration is fraudulent.

(d) Any other issue or issues as the court may deem fit to raise”.

The plaintiff testified but called no witness. The defendant also testified and called three witnesses, DW1, DW2 and DW3. After hearing the parties and their witnesses, the learned trial judge on the 31^st July 2015, delivered his judgment and dismissed the plaintiff’s claim. He entered judgment for the defendant on her counterclaim. Aggrieved by the judgment of the trial court, the plaintiff filed the instant appeal based on the following grounds:-

“(a) The judge erred in law when he misapplied the principle in the case of Amuzu vrs Oklikah [1998-99] SCGLR 141 to the appellant’s case.

(b) The judge erred in law when he held that the defendant/respondent had proved her counterclaim when there was no evidence to the effect.

(c) The judge erred in law when he held that the circumstances in which the plaintiff/appellant registered his interest in the disputed land was fraudulent and reckless.

(d) The judge erred in law when he failed in his duty to consider whether or not the nemodat rules apply in the case of the appellant.

(e) The cost of GH¢10,000.00 awarded in favour of the defendant/respondent as against the plaintiff/appellant was harsh and excessive.

(f) Additional grounds of appeal will be filed on the receipt of the records of proceedings”.

It is noted that no additional grounds of appeal were filed and they are considered abandoned.

Learned counsel for the plaintiff argued grounds (a) and (c) together. On ground (a), counsel referred to the principle of law as laid in Amuzu vrs Oklikah [1998-99] SCGLR 141 Holding (1). Counsel stated his understanding of the said principle. Counsel quoted the reasons given by the learned trial judge in applying the case. He also referred to the evidence of DW3 on page 101 of the record of appeal and submitted that the learned trial judge erred by relying and construing the evidence of DW3 as constituting notice or prior notice to the plaintiff or Jerry Obuobisa and therefore referred to the Amuzu’s case as authority to dismiss the plaintiff’s case. He gave five reasons why the trial judge misapplied the principle in Amuzu’s case. Counsel submitted that this ground of appeal must succeed.

On ground (c), learned counsel for the plaintiff contended that the trial judge did not explain the fraudulent and reckless circumstance. Counsel submitted that in the absence of any other evidence apart from the evidence of DW3, he cannot say that the registration of the interest of the appellant was fraudulent and reckless. Counsel further stated that there is a presumption of regularity in respect of documents duly registered by Land Title Registry or Lands Commission.

On ground (d), learned counsel for the plaintiff referred to the evidence of the defendant at pages 74-75, 76, 77 and 78 but relied on page 74 of the record of appeal and submitted that at the time the defendant conducted the search, the land had not been released to the chiefs and also the search showed that that land was in the name of the Prison Service. He referred to page 82 of the record of appeal in support. Counsel contended that if according to the defendant and DW1, their search showed that the land was Prison Settlement Farm then it shows that at the time defendant bought the land, her grantors had nothing to give to the defendant as at the time. Counsel contended that by the nemo dat non habet rule, the defendant could not own her land at that time with the Prison Service at the same time which the trial judge refused or neglected to consider. He referred to Benyak Company Ltd. v Paytell T.T. Mensah (Substituted by Moses Tawiah Aryee) [2014] 76 GMJ 1 at 8; Tetteh & Ors. v Hayford (Substituted by Decker) [2012] 44 GMJ and Salomey Shome Tetteh, Nii Amon Tafo v Mary Kokor Hayford, Civil Appeal No. J4/34/2011, in support of the nemo date quo non habet rule. He submitted that the two searches conducted by the defendant and DW1 revealed that the land was Prison Service land and therefore the defendant’s grantor had no land to give to the defendant, and this is the basis of the nemo dat rule which the trial judge did not consider.

On (b), learned counsel for the plaintiff referred to the case of Jass Co. Ltd. & Anor v Appau & Another [2009] SCGLr 265 that, in action for declaration of title, the burden of proof is on both the plaintiff and the defendant to satisfy the court on the balance of the probabilities, whenever a defendant counterclaimed. Counsel submitted that having dismissed the claim of the plaintiff, the trial judge should have proceeded to evaluate the case of the defendant in her counterclaim. Counsel referred to Exhibit “5” which receipt show that the defendant bought her land in 2000 and not in 1997 and therefore it was wrong for the judge to have said that the defendant made out a case to the satisfaction of the court in proof of her counterclaim especially when she did not tender the original copy of her indenture for comparison with the photocopy she tendered. Counsel prayed that this ground of appeal succeed.

On ground (e), learned counsel referred to Order 74 rule 1(1) of C.I. 47 to the extent that costs are at the discretion of the trial court. Counsel also referred to Order 74 rule 2(1) on assessment of costs by the court. Counsel submitted that even though the trial court took sometime yet the delay was most caused by the defendant who at the middle of the trial, traveled out of the jurisdiction to Europe where she claimed she was staying. Counsel contended that it was therefore wrong for the trial judge to award a punitive cost of Ten Thousand Ghana Cedis (GH¢10,000.00) because he believed that the plaintiff’s conduct was fraudulent. He prayed that the cost be set aside.

On the other hand, learned counsel for the defendant also opted to argue grounds (a) and together. Counsel submitted that registration of documents at the Lands Commission is a process and it is concluded when inspection is done and same is signed by the Chairperson of the Lands Commission and eventually stamp duty is also paid and lodged at the Deeds Registry which is then given a number duly signed. Counsel referred to page 146 of the record of appeal where the learned trial judge found as a fact that there were developments on the land before the plaintiff registered the said land or same were handed over to him. Counsel contended that the presence of the defendant on the land was the basis of a layout site plan in the area since she was there before the layout was done as confirmed by DW2. Counsel called for a critical examination of Exhibit ‘A’ and it would be noted that it was two years after DW3 met Jerry Obuobisa and followed him to the land before same was completely registered at the Deeds Registry yet in spite of the knowledge by plaintiff that the defendant had been on the land earlier. The plaintiff went ahead with the said registration hence the perfect description that the plaintiff was “fraudulent and reckless”. Counsel further submitted that the failure of the plaintiff in not informing the Lands Commission Officials of the development on the land and that such developments were not constructed by the plaintiff amounted to fraud. Counsel referred to DW3’s testimony and concluded that it confirmed the issue of notice to the defendant’s earlier grant and the fact that the plaintiff knew of the earlier unregistered document.

Counsel submitted that the registration was done without the consent, authorization and instructions of the defendant hence same was procured by fraud if indeed it is registered, fraud also satisfied the requirement in the Amuzu v Oklika case. Counsel also submitted that the plaintiff practiced fraud on the court of the fact that Nai Supi realizing the earlier grant to the defendant replaced the land for the plaintiff but he chose to use his sister Akosua Bonsu’s name for the preparation and registration of the document. Counsel referred to page 52 of the record of appeal where the plaintiff denied knowing Akosua Bonsu yet at page 72 of the record of appeal he admitted same and that the twenty plots were documented in the name of his sister, Akosua Bonsu. He therefore contradicted himself. Counsel stated that the plaintiff also denied at page 50 of the record of appeal that there was a replacement of the land to him but DW2 at page 92 confirmed this as well as DW3 at page 104 of the record of appeal who is caretaker of plaintiff’s sister’s land. Counsel contended that the plaintiff denied knowing the sister so as to defraud the defendant and the court. Counsel cited Maclean III v Akwei [1991] 1 GLR 54 CA Holding

(1), to show that to allow the plaintiff to rely on the non-registration of the defendant’s document would amount to fraud. Submits that the learned trial judge cannot be faulted in his appreciation and interpretation of the Supreme Court decision in Amuzu v Oklika (supra).

On ground (b), counsel referred to amended statement of defence and counterclaim and that the defendant called three witnesses in addition to her evidence. Counsel referred to the evidence of the defendant at pages 75 and 77 and stated that the defendant acquired

her land in 1997 but got her Indenture dated 26^th May 2000 which was corroborated by DW1 and which Indenture had the oath of proof duly stamped by the Court Registrar on

30^th may, 2000, but unregistered. Counsel also referred to the evidence of DW1, DW2 and DW3 and contended that their evidence corroborated the evidence of the defendant. Counsel submitted that the defendant was able to demonstrate to the court that she bought the said land first from Nai Odupong Awushie Tetteh as opposed to by the plaintiff who bought it from Nai Supi subsequent to the purchase by the defendant who has shown that she was in effective possession of the land by the various developments she had on the land and that the plaintiff rushed to register the said land even though he had notice of the defendant’s unregistered land to commit fraud on the defendant, hence her counterclaim. Counsel cited Nartey v Mechanical Lloyd Assembly Plant Ltd. [1987-88] GLR 314 which held that registration per se does not render valid a transaction which is otherwise null and void and that non-registration being a defect will not deprive a party of the protection of the courts. Counsel submitted that the trial judge was right in ordering the cancellation of the plaintiff’s registration.

On ground (d), counsel stated the basic principle of nemo dat quo non habet and contended that even if by any stretch of imagination it is entertained, it would not work since the defendant bought the land before the plaintiff did. Counsel stated that granted that the defendant did not have title, those who had title did not challenge her possession of the property she had developed and built a hotel which had reached lintel level and also built stores. Counsel contended that even if the defendant was not given a document, the Chief would be holding the land for the defendant as a trustee. He stated that DW2 testified that the defendant’s land was taken into consideration when the layout site plan was done and this was corroborated by DW3 and this means that the Chiefs even after they released the land to the Prison Authorities, the defendant’s right to the land had priority over the plaintiff. Counsel referred to section 40 of the Conveyancing Act (NRCD and submitted that by this Act the Chief is holding the land in trust for the transferee. He referred to the evidence of DW2 and DW3’s evidence on the layout together with that of DW1. He referred to page 198 of the record being the findings of the trial judge on the issue of Nemo dat rule. Counsel submitted that registration per se does not give a state guaranteed title to the plaintiff and cited Nartey v Mechanical Lloyd (supra) in support. Counsel further submitted that the plaintiff’s case be dismissed since he had notice of the defendant’s interest whilst in the process of registration hence he refused to take notice of same.

On the last ground (e), counsel submitted that the time, energy and resources were substantially used by the defendant to mount her defence for nearly four years and as such deserved even an enhanced cost. Counsel for the plaintiff also filed a reply to the defendant’s written submissions.

I would now address the ground (a) which stated “The judge erred in law and he misapplied the principle in the case of Amuzu v Oklikah [1998-99] SCGLR 141 to the appellant’s case and made his findings and ground (c) that “the judge erred in law when he held that the circumstances in which the plaintiff/appellant registered his interest in the disputed land was fraudulent and reckless” together. Learned trial judge had concluded in his judgment applying the decision of the Supreme Court in Amuzu v Oklikah at page 147 of the record of appeal as follows:-

“It would appear that the plaintiff took advantage of his close relationship with the Chiefs to insist on registering the land even after DW3 had warned him that it belonged to the defendant and even more so in the face of the physical developments on the land. In the fact of the decision in Amuzu v Oklikah [1998-99] SCGLR 141, people ought to know that mere registration will not guarantee their title to land if there is evidence of an earlier grant. At page 166 of the judgment, Charles Hayfron-Benjamin JSC, held that while a party with an unregistered document may be unable to assert a legal title in court, the document will nevertheless take effect in equity and will defeat all claims except against the holder of the legal title. Ampiah JSC at page 175 of the judgment admitted that the decision of the court in favour of the first purchaser, whose document remained unregistered was “a revolutionary stance against settled authorities” but went on to say that the courts must be bold to avoid two strict an application of the provisions of the Lands Registry Act 1962, which gives blessings to fraudulent land dealers. From the facts found, since the plaintiff was aware that the land was encumbered by being told so by DW3 and also for the physical developments on the land, his decision to go on to register same to say the lease (sic) was both fraudulent and reckless and since as held in Amuzu v Oklikah case (supra) since the Land Registry Act 1962 (Act 122) did not abolish the equitable doctrine of notice and fraud has registration of same did not give him a state guarantee title”.

What are the principles of law, as clearly stated in Amuzu v Oklikah (supra) by the Supreme Court? The court held that:-

“(1) The Land Registry Act, 1962 (Act 122), did not abolish the equitable doctrine of notice and fraud; neither did it confer on a registered instrument a state-guaranteed title. Consequently, a latter instrument (such as Exhibit “B” in the instant case) could only obtain priority over an earlier one by registration under section 24(1) of Act 122 if it was obtained without notice and fraud of the earlier registered instrument. Since in the instant case, the plaintiff had actual notice that the land was in some way encumbered, he would be held to have constructive notice of the earlier grant to the defendant. The Court of Appeal had erred in holding otherwise”.

In the headnote at page 142-143 of the Amuzu v Oklikah case, the judges held as follows:-

“Per Charles Hayfron-Behjamin JSC: … While a party with an unregistered document may be unable to assert a legal title in court, nevertheless the document will take effect in equity and will defeat all claims except the holder of the legal title….. True the principle of registration has blunted the edge of the doctrine of notice with respect to transfers of the legal estate in land. Nevertheless the equitable doctrine of notice cannot be ignored by the courts in circumstances in which the transaction is patently unjust. A court cannot ignore evidence of unconscionable conduct on the part of a subsequent purchaser and decree title in such purchaser even though he has notice – actual, constructive or imputed – of third-party rights and interests in the property he seeks to prove.

Per Ampiah JSC: It is said that equity follows the law, but equity would not permit an Act to be used as an instrument of fraud. Any conduct that borders on fraudulent behaviour should be frowned upon; it must not be encouraged.

Per Atuguba JSC : It is manifestly clear that the purpose of the Land Registry Act 1962 (Act 122), is to provide certainty of information about land transactions so as to avoid fraud. It is contrary to this policy objective to allow fraud rather to flourish.

Per Sophia Akuffo JSC: ….. once it is accepted that the object of the Act is to afford and facilitate notice to the public of pre-existing interest in any piece of land, then, it can be validly argued that the objective is achieved when the purchaser has prior notice of such interest even if the instrument covering the interest is unregistered.

Per Aikins, Ampiah and Sophia Akuffo, JJSC: ….. Fraud would constitute a defence for avoiding the incidence”

Deducing from the Amuzu case, I think that the principle in the Amuzu v Oklikah case are clear. Indeed the principle is that the Lands Registry Act 1992 (Act 122) did not abolish the equitable doctrines of notice and fraud and any registrable instrument under the Act did not confer a state guaranteed title. An earlier unregistered instrument could have priority over a later registered instrument if it was obtained without notice and fraud of the earlier unregistered instrument.

What were the respective roots of title relied on by the parties? The plaintiff relied upon his registered lease which was issued by the Lands Commission as LVB/CR/425/2006. He testified that he bought 24 plots of land from Nai Odupong Awushie Tetteh II, the Chief of Odupon Ofankor in 2001 which the defendant trespassed unto six plots. He conducted his search at the Lands Commission on 13^th July 2006 and it revealed that his lease was subsisting and tendered same as Exhibit “B” and “B1”, his site plan. In cross-examination, the plaintiff testified that he had no notice of any rival claim. He stated in cross-examination at page 639 of the record of appeal as follows:-

“Q. Can you tell this Court who took you to the land?

A. Nai Supi Kwao Ashong the family head”.

However, at page 69 of the record of appeal, he contradicted himself in further cross-examination thus:-

“Q. When did Supi Nai Kwao Ashong sent you to the land?

A. He was not the one who took me to the land.

Q. The mention of the name John Odupong Wellington is an afterthought?

A. That is not true”.

The plaintiff denied that the defendant was on the land by the time he was taken to the land.

“Q. When Nai Supi took you to the land the defendant was already on the land?

A. That is not true, when I went onto the land there was nobody on the land. The whole place was bushy”.

Q. I put it to you that at the time Nai Supi went with you to the land the defendant had her block factory on the land?

A. It was when I went to the land in 2006 that I saw the defendant moulding blocks on the land”.

His evidence was contradicted by DW1, DW2 and DW3 since a block factory and other developments were on the land.

When the plaintiff was asked about how he paid for the land, he under cross-examination at page 45 of the record of appeal stated:

“Q. How did you pay for this land?

A. I bought a car in exchange for the land.

Q. What type of car was it?

A. It was KIA Truck.

Q. Whom did you transfer the car to?

A. Nai Odupon Awushie II”.

The plaintiff even denied that the land in dispute is part of Prisons Farm. At page 46 of the record of appeal, he stated in cross-examination thus:

“Q. Are you aware that the land the subject matter of this case is part of Prison Farm?

A. No. I went to the Lands Commission, conducted a search but nothing of that sort was revealed to me.

Q. When was that search conducted?

A. The search was conducted in 2006”.

Further in cross-examination, the plaintiff at page 52 of the record of appeal denied knowing Akosua Bonsu but on page 72 of the record of appeal, he contradicted himself by admitting same as his sister whom he sold twenty plots of land to.

“Q. Do you know Madam Akosua Bonsu?

A. I do not know anybody by that name.

Q. Were you given an indenture in respect of these 20 plots?

A. Yes, but it was documented in the name of my sister.

Q. What is the name of you sister?

A. Akosua Bonsu.

Q. I am putting it to you that part of 10 plots which was replaced for the six plots were part of the 20 plots.

A. I do not know anything about the 10 plots allegedly used by the chiefs in replacement of the alleged six plots.

Q. It is not true that you met the defendant several times.

A. I met her on several occasions and I had informed her to leave my land”.

It is noted that the plaintiff was contradicted by the evidence of DW2 and DW3. From the cross-examination of the plaintiff, he contradicted himself and it could be deduced that he is not truthful.

The defendant had her land title from her vendor Nai Odupon Awushie Tetteh. She purchased 10 plots being the land in dispute in 1997. The defendant paid for the land and was issued with receipts Exhibits “2”, “2A”, “2B”, “3” and an unregistered Indenture Exhibit “C”. These exhibits were all dated in the year 2000. After that she put up a wooden structure on the land together with a block factory in 2000 but left outside the country, she came back in 2001 and started building a swimming pool and started construction of a hotel building which reached window level, a foundation for a Restaurant and the blocks for the swimming pool. She also built stores and a restaurant on the land.

The defendant paid extra Ten Million old cedis (¢10,000,000.00) to one Nana Quanson who claimed the land for his family and demolished her wooden structure just to secure her land. She also paid monies to one Jojo too. She conducted a search on 3^rd May 2000 that is Exhibit “4” which indicated that the land is Government land for Prison Settlement Farm. She conducted another search marked as Exhibit “5” and the result was the same. She testified that at one time when her son, Frank Gorman was working at the block factory the plaintiff confronted him that part of her land entered his. She met the plaintiff in his office and after discussions, he told her to go and register his ten (10) plots because six (6) of her plots entered his land but did not tell her where his ten plots were. She again went with her father to see the plaintiff and later went with her lawyer to see him but he refused to talk. The defendant reported to the chiefs about the trespass to her land but when they invited the plaintiff he refused to understand and brought up this case. She testified that the plaintiff informed her son that he had registered his part of the land and so the defendant should see her for a transfer of the land to her. She testified further that, at the time the plaintiff registered the land, he knew that she was developing the land and that she bought her plots before the plaintiff bought his 20 plots in 2006. Under cross-examination, her evidence could not be punctured.

DW1, DW2 and DW3 all testified and corroborated the evidence of the defendant. Apart from the plaintiff who also saw the defendant’s physical development on the land DW3 testified to the fact that, when Jerry Obuobisa from the Lands Commission came to do some work for the plaintiff, he duly gave notice to the plaintiff that what he was showing to the lands officer was the defendant’s land. There is no dispute about the physical developments the defendant undertook on the land which were to the notice or knowledge of the plaintiff. It is also clear that although the defendant did not register her documents, her purchase of the land was prior to that of the plaintiff’s land. In other words, the plaintiff knew or ought to have known that the disputed land had been in possession of the defendant at the time the plaintiff purportedly claimed to have acquired the same land. These constituted notice as required under the law. The plaintiff therefore had actual notice that the land was encumbered and he would be held to have constructive notice of the defendant’s presence on the land.

Furthermore, it pertinent to refer to the evidence of DW2 on page 103 of the record of appeal where he stated thus:-

“The plaintiff was given ten (10) plots and these were replaced and he registered them in the name of his sister Akosua Bonsu. The land in question is located at Opeikuma near J. River Farms. It is never correct that the plaintiff’s land was never replaced. …. At the time the land was sold to the defendant, there was no layout. In the year 2001, the stool engaged the Town Planning Officer from Winneba who drew up a plan for the layout. When the layout was made, it affected the defendant’s land as a road passed through it. It did not affect the defendant’s land as a road passed through it. It did not however affect the position of her land. There was a superimposition of the defendant on the layout. The Odupong Ofankor started negotiations with the Ministry of Interior for the release of the stool of that portion of land which was eventually done in 2000”.

It is noted that the plaintiff denied knowing Akosua Bonsu whom he gave the land given to him as replacement for encroaching on the defendant’s land. The plaintiff in order to cover up, contradicted himself and later admitted in cross-examination as earlier quoted in this judgment. DW2 corroborated the evidence of the DW3 that Nai Supi replaced the plots to the plaintiff. In paragraph 9 of the statement of defence and counterclaim, the defendant pleaded fraud as follows:-

“4. Claiming defendant’s land even though same has been replaced for him and has caused a direct lease to be made between Nai Odupong Awushie Tetteh II and one Akosua Bonsu which said land is registered at the Lands Commission, Cape Coast”.

Indeed the land the plaintiff gave to Akosua and its Indenture was tendered as Exhibit “D”. These pieces of evidence constitute fraud. The law is settled that the moment a valid contract for sale of land is concluded, the vendor becomes in equity a trustee for the purchaser of the estate sold and the beneficial ownership passes to the purchaser. The learned editors of Snell’s Principles of Equity (27^th Edition) at page 188 also clarified the situation thus:-

“As soon as a specifically enforceable contract for sale of land is made, the purchaser becomes the owner of the land in equity, and the vendor becomes a constructive trustee of the land for the purchaser, subject in each case to their respective rights and duties under the contract”.

See section 3(1)(b) of the Conveyancing Act, 1975 (NRCD 175) which dispenses with the requirement of evidencing such contract for sale in writing. See also Maclean II v Akwei [1991] 1 GLR 54 Holding (1). In the instant case, the property was encumbered by the contract of sale, and as that contract had not been terminated between the chief and the defendant, the property could not be deemed to be legally or properly back to tender for the plaintiff to have registered same. It is also clear that the relationship between the defendant and her vendor was clear in that the vendor became the trustee for the defendant and the beneficial ownership passed to the defendant whether her title to the land remained unregistered, because there is sufficient evidence on record of notice and fraud. In other words, to allow the plaintiff to rely on the non-registration of the defendant’s document will amount to fraud. It is also obvious that the plaintiff was reckless when he knew that the defendant had all these physical developments on the land, yet he went ahead to register the land.

Having given a detailed account of the transaction in this appeal, I have no doubt in my mind that the learned trial judge did not misapply the principles of law in Amuzu v Oklikah and I agree with the findings of fact by the trial judge. Finally, on presumption of regularity in respect of the documents registered at the Land Title Registry or Lands Commission, it meant that such institutions of state are presumed to conduct their affairs with a certain degree of regularity in line with their mandate. Unless there is strong evidence, such a presumption could be washed away. See Kangberee v Mohammed [2012] 51 GMJ 173 at p.179.

In the instant appeal, although the plaintiff registered his land at the Deeds Registry, there is no regularity with respect to that public institution because due diligence was not made before the plaintiff’s Indenture was registered. A visit to the land in dispute revealed various physical developments the defendant had undertaken and it was incumbent that further investigations ought to have been carried out before the registration. See Saanbaye Basilde Kangeree (suing per his Lawful Attorney) Theresa Kangberee v Alhaji Seidu Mohammed [2012] 51 GMJ 173. I am therefore satisfied that the learned trial judge did not misapply the principles of law in the Amuzu case. Ground (c) had been considered along in ground (a). This ground of appeal fails and it is dismissed.

On ground (d) that is that the trial judge erred when he failed in his duty to consider whether or not the nemo dat rule apply in the case of the appellant. There is no dearth of authority in the nemo dat quo non habet rule. The principle of nemo dat quo non habet meant that an owner of land can only convey title that he owns at the material time of the conveyance. See Kangberee v Mohammed [2012] 51 GMJ 173 at p.199. See also Bruce v Quaynor & Ors [1959] GLR 292 at 294; Sasu v Amua-Sakyi [1987-88] 2 GLR 22, 24 holding (7). The plaintiff’s complaint was that both the defendant and the DW1 testified that at the time of the searches on the land, the land belonged to the Prison Service Farm Settlement and therefore the defendant’s grantor had no land to give to the defendant. The learned trial judge at page 198 of the record of appeal, the learned trial judge made his finding and holding on this issue as follows:-

“The plaintiff’s own acquisition was in 2001 and there is nothing to show that even at this time the Government White Paper has been issued about the release. As at now, there is no indication as to when the Government White Paper was issued. The fact that the plaintiff could not register his land before 2006 tends to show that he also encountered some problems after the acquisition in registering his interest. His case therefore falls into the same category as that of the defendant. This being the case, and since there is no doubt that the grantors now have full title to the lands, the issue boils down to who has prior grant and whether the registration of the plaintiff’s interest, with prior warning of the defendant’s interest and the physical development on the ground gives him a better title”

I would adopt counsel for the defendant’s submission that the defendant bought the land in dispute before the plaintiff bought his. Granted that the defendant’s vendor did not have title, those who had title did not challenge the defendant’s effective possession of the property when defendant developed the said land and the construction of the hotel was even at the lintel level. Even if the defendant was not given a document, the chiefs would be holding the land for the defendant as trustee. See section 40(5) of the Conveyancing Act, 1973 (NRCD 175). The fact remains that the defendant has an unregistered document Exhibit ‘C’ which is prior in time to the plaintiff’s registered document. The defendant’s document takes effect in equity. DW2 and DW3 have testified that in 2001, the stool caused a layout to be made and this affected the defendant’s land but did not affect the position of her land. According to DW3 the defendant’s land was superimposed on the layout and this means that her land is intact with all the developments she had undertaken on it without challenge.

The conclusion of the learned trial judge is supported by the testimony of DW2 and DW3. DW3 at page 102 of the record stated that:-

“The Odupong Ofankor stool started registrations with the Ministry of Interior for the release to the stool of that portion of land which was eventually done in 2000. The negotiations with the Ministry of Interior for the release of the land became necessary because the Ministry had acquired it under an L.I. but not using it for the purpose of the acquisition. The land was released to the stool in 2000 but the Government White Paper did not come out early and that is why a search carried out in 2001 will reveal the land still being in the name of the Ministry of Interior”.

In any case, registration does not per se render valid a transaction which is otherwise null and void by the same token non-registration being a defect which can be cured its absence will not deprive a party of the protection of the courts – see Nartey v Mechanical Lloyd Assembly Plant Limited [1987-88] 2 GLR 314.

Furthermore, both the plaintiff and the defendant purchased the land at a time when the searches revealed that the land belonged to the Prison Service Settlement Farm. Although the plaintiff purchased his land in 2001, he could not register his land until 2006 apparently because of this encumbrance. The plaintiff did not have a state-guaranteed title. However, the defendant bought her land prior to the plaintiff’s purchase. The defendant as I have stated in this judgment held the equitable interest. He who comes to equity must come with clean hands, and therefore it does not lie in the mouth of the plaintiff to complain about the said nemo dat non habet rule when he is equally guilty of it. The plaintiff does not have clean hands to complain. In any case the defendant is in effective control and possession of the land in dispute. As I have already stated, nobody has challenged the defendant’s possession of the land in dispute. This ground of appeal is unnecessary and not maintainable. I therefore agree with the finding of the trial judge and consider this ground of appeal as having failed and it is dismissed.

The next ground is that “the judge erred in law when he held that the defendant/respondent had proved her counterclaim when there was no evidence to that effect”. I agree with the position of the law as espoused by counsel for the plaintiff that in an action for declaration of title, the burden of proof is always put on the plaintiff to satisfy the court on the balance of probabilities, but where the defendant files a counterclaim, then the same burden of proof would be used in evaluating and assessing the case of the defendant just as was used to evaluate or assess the case of the plaintiff against the defendant. That is the law as stated in Jass Co. Ltd. & Anor v Appau & Another [2009] SCGLR 265. The learned trial judge at page 148 of the record of appeal stated that:-

“Since the defendant has shown that her acquisition was earlier in time and that she had begun physical development on the land when the plaintiff went on to register same, she has thereby made out a case, to the satisfaction of the court in proof of her counterclaim. Accordingly, same is granted”.

The plaintiff’s complaint against the finding and holding of the learned trial judge was that, he did not evaluate the case of the defendant in respect of her counterclaim. I do not agree with the submission or the complaint of the plaintiff. A perusal of the judgment indicated that the learned trial judge did evaluate the evidence of the defendant and came to the conclusion that she was entitled to her counterclaim. The evidence of the defendant was totally corroborated by the testimony of DW1, DW2 and DW3 that the plaintiff had notice of the defendant’s prior interest in the land before he went ahead to register same. There is also sufficient evidence on record that the fraud on the part of the plaintiff was also proved. Under section 122(1) of the Land Title Registration Act, 1986 (PNDCL 152), a court might in its discretion, order cancellation of a land certificate issued pursuant to the law on grounds of fraud or mistake materially affecting the interest of the proprietor. And by fraud was meant dishonesty. However, under section 122(2) of PNDCL 152, the register “shall” not be rectified … unless such proprietor had knowledge of the omission, of which the rectification is sought or had himself caused such omission, fraud or mistake or substantially contributed to it by his act, neglect or default”. See Brown v Quarshigah [2003-2004] SCGLR 930 Holding (5). In the instant case, the requisite fraud had been established by the defendant to enable the court grant the counterclaim. Furthermore, the Land Registry Act, 1962 (Act 122) did not abolish the equitable doctrines of notice and fraud and therefore a later instrument can only obtain priority over an earlier one as required by section 24(1) of Act 22 if it was obtained without fraud and without notice of the earlier unregistered instrument. There is sufficient evidence on record which the learned trial judge found that the plaintiff had notice of the defendant’s earlier unregistered document and that the defendant committed fraud. There is sufficient evidence on record to justify the trial judge’s grant of the counterclaim. This ground of appeal fails and it is dismissed.

The last ground of appeal is that “the cost of GH¢10,000.00 awarded in favour of the defendant/respondent as against the plaintiff/appellant was harsh and excessive”. Costs are at the discretion of the trial and the court has power to determine by whom or to what extent the costs are to be paid. See Order 74 rule 1(1) of C.I. 47. Under Order 74 rule (4) before the court assessed costs to be awarded to any party, the court may have regard to the amount of expenses, including travel expenses, reasonably incurred by that party or that party’s lawyer or both in relation to the proceedings; (b) the amount of court fees paid by that party’s lawyer in relation to the proceedings; (c) the length and complexity of the proceedings; (d) the conduct of the parties and their lawyers during the proceedings; and any previous order as to costs made in the proceedings.

In the instant case, the learned trial was justified in awarding the cost of GH¢10,000.00 because the defendant lives in Austria in Europe and had to travel to Accra until the final determination of the case, except few occasions when she was absent. The defendant therefore incurred travel expenses to travel by Air for the conduct of the case. Further, the trial judge took into consideration the length of time and also the engagement of a lawyer and the payment of legal fees. In any case, the cost awarded was lenient and I am tempted to enhance it. On these grounds, this ground of appeal fails and it is dismissed.

In conclusion, the appeal fails and it is hereby dismissed. The judgment of the High Court, Cape Coast dated the 31^st July, 2015 is hereby affirmed.

C. J. HONYENUGA

(JUSTICE OF APPEAL)

S. K. GYAN, J.A.                   I agree                       S. K. GYAN

(JUSTICE OF APPEAL)

K. DAPAAH, J.                    I also agree                    K. DAPAAH

(JUSTICE OF APPEAL)