AVRIL LOVELACE – JOHNSON (JA)

On 29^th July 2014, the High Court gave judgment for the Plaintiff/Respondents in this matter on their claim for Declaration of title to land described in their statement of claim, Perpetual injunction, Damages for trespass, and recovery of possession of the said land. The 1st Defendant/Appellant counterclaimed for the same reliefs but over a larger tract of land and the disputed land. Likewise the 2^nd Defendant/Appellant counterclaimed for the same reliefs in respect of a portion of the land claimed by the Plaintiff/Respondent with the exception of the relief for recovery of possession, since their position from their statement of defence was that they were already in possession.

Being dissatisfied with the judgment in question the two have launched the present appeal.

Hereon, for ease of reference, the designations of the parties in the High Court will be maintained.

The grounds of appeal filed by the 1^st Defendant are as follows

i) The judgment is against the weight of evidence

ii) The learned Trial Judge was wrong when he held that E.I. 46 and Exhibit “A” related to the land in dispute and gave Judgment for the Plaintiff/Respondent when the Parties themselves have unequivocally agreed that the land in dispute is not Government land otherwise it would not have been zoned by the 1^st Defendant/Appellant into a LIGHT INDUSTRIAL AREA.

iii) The Learned Trial Judge was wrong when he held that the 1^st Defendant failed to prove his counterclaim notwithstanding preponderant and unchallenged evidence that the 1^st Defendant commissioned Town and Country Planning Department to Zone the disputed area as LIGHT INDUSTRIAL AREA and in control thereof and performed over acts of possession at the commencement of the Suit.

iv) The Learned Trial Judge misdirected himself when he held Exhibit “15” and Exhibit “17” as “over reaching and self-serving” prepared on 13^th June, 2013 during the pendency of the suit “with the intention to defeat the ends justice”

The 2^nd Defendant filed the following grounds

a) That the judgment is against the weight of the evidence before the court.

b) That, with all due respect to the learned Judge, the judgment failed to address the evidential burden cast on the Plaintiff/Respondent.

c) That the judgment is per incuriam as it ignored a relevant constitutional and statutory provisions regarding disposition of stool lands.

d) That the trial judge, with respect erred in law when, having regard to the said constitutional and statutory provisions, he failed to dismiss the Plaintiff/Respondent’s case on the ground of want of capacity.

e) The learned Judge, with respect, erred when he failed to consider the allegation and evidence of fraud against the Plaintiff/Respondent’s grantor which sought to question the title of the said grantor and the Plaintiff/Respondent’s legal basis for mounting the action at the High Court.

f) The trial Judge, with respect, erred when he applied the principle of “feeding the estoppels” in this case when the facts and evidence before the court do not support application of the said principle.

g) The learned Judge, with respect, erred when he determined that the land in dispute does not form part of the larger area belonging to the 1^st Defendant despite making correct findings and interpretation of the judgment of Jackson J dated 26^th May, 1954 regarding the rightful owners of the larger area of the land of which the land in dispute forms part.

h) The learned trial Judge erred when he refused to consider exhibit 15, 16 and 17tendered by the 1^st Defendant, without objection and treated the said exhibits as if they were inadmissible evidence

i) Additional grounds of appeal may be filed upon receipt of the record of proceedings.

No additional grounds were filed as intimated in the ground (i) of the grounds above listed.

At the heart of this matter is the question of whether the traditional owners of the land claimed by the Plaintiff is the Nungua stool or Martey Tsuru family. These were the first two issues set down for determination at the High Court. The Plaintiffs claim their title through the Nungua stool and the 2^nd Defendants based their counterclaim on a grant from the Martey Tsuru family, the first Defendants.

The 1^st Defendant’s counterclaim is for a large tract of land, over which Plaintiffs are making no claims and an adjoining piece of land of which it is alleged the disputed land forms a part.

Both Defendants state that the judgment of the High court is against the weight of evidence. Such a ground of appeal implies that the conclusions reached by the trial court are not justified by the evidence on record. In line with this court’s statutory duty under section 8(1) of the Court of Appeal Rules, 1997 C I 19 which enjoins us to consider an appeal as a rehearing of the matter, we are bound as stated 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” See the case of

Oppong Kofi v Awulae Attribrukusu 111 (2011) 1 SCGLR 176.

See also the case of

Re; Asamoah (deceased) Agyeiwa & Others v Manu [2013-2014] 2 SCGLR 909

An Appellant who urges this ground on the appellate court has a duty to identify the lapses in the judgment under review. See the case of

Djin v Musah Baako (2007-2008) SCGLR 686

Under this ground a summary of the complaints of counsel for 1^st Defendant as stated s at pages 2 to 7 of his written submissions are as follows:

·         The evidence of PW1 was just traditional history and did not relate to present day boundaries

·         E I 46 that PW1 tendered did not have a plan attached to help the court decide whether the said instrument covered the land in dispute

·         Evidence of the 1^st Defendant, their witness and the pleadings of the Plaintiff prove that the land in dispute did not form part of the Nungua stool land granted for the Railway project

·         The fact that the 1^st Defendants got the Accra Metropolitan Assembly and the Town and Country Planning Department to zone a large portion of land into which the area in dispute falls, without any opposition from the Nungua Stool implies that it did not form part of Nungua stool land.

·         Having held that the 1952 judgment of Jackson J was in favour of Teshie, and the evidence showing that Martey Tsuru village and the Light Industrial Area are Teshie lands and therefore fall under Teshie jurisdiction, it was wrong to grant the area in dispute to the Respondent, a grantee of the Nungua stool which was not a party to the suit

In respect of the 2^nd Defendant, it has been submitted on this ground that not only were there several pieces of evidence on record which if applied in their favour would have changed the decision of the court but that there were indeed several which were wrongly applied against them and some pieces of evidence relied on by the judge were non-existent on the record.

Before expatiating on these, I will deal with a fundamental criticism of the judgment by Counsel for the 2^nd Defendant per the following statement at page 9 of his written submissions

“My Lords, the trial judge did not evaluate the case and evidence of the Respondent so as to determine whether on the balance of probabilities, the Respondent has proved his case.”

Without going into whether or not the conclusion of the judge was right at this stage, the judgment shows that he did evaluate the case and evidence of the Respondent at length and made several findings of fact, the most important of which was in the following words at page 29 of the Record of Appeal (ROA)

I have weighed the witnesses evidence and I am of the view that I accept the evidence of the Plaintiffs as against the Defendants. They have been able to describe the exact location of the land….The land in question does not belong to the 1^st defendant which they can grant to the 2^nd defendant.”

The court did not need to use the usual expression “balance of probabilities”. “Weighing the witnesses evidence” and accepting one as against the other amounts to balancing the probabilities. A study of the judgment shows that pages 8 to18 are almost a reproduction of the evidence of the parties and their witnesses. At page 23 the judge makes a finding that the position taken by Plaintiff’s witness Nii Kpakpo Sraha on the issue of the school of Infantry was false. At page 26 the judge makes a finding that the grant of leases to certain companies by the Plaintiff’s grantors are recent acts of possession. In the light of all these, how can counsel say the judge did not evaluate the case and evidence of the Plaintiff?

I will now proceed to summarize the pieces of evidence upon which counsel for the 2^nd Defendant bases his complaint that the judgment is against the weight of evidence. According to counsel the following exhibits should have been applied in their favour

·         Exhibit 1(for the 2^nd Defendant)- A motion on notice for interlocutory injunction by the Plaintiff which relied on an unsigned and unsealed Land Title Certificate

·         Exhibit 2- The deed of conveyance between 1^st Defendant and SDC

·         Exhibit 4- The deed of assignment between 2^nd Defendant and SDC

·         Exhibit 3- Official search establishing that the disputed land is NOT State Land

·         Exhibit 5- An application for building permit by 2^nd Defendant with receipts attached 1^st Defendant’s exhibit 6- Letter from Ministry of Defence releasing land to them

·         Exhibit 7- 2^nd Defendant’s affidavit in opposition to Plaintiff’s application for interlocutory injunction to which they attached photographs showing the level of their development

·         Exhibits 8 and 9- Search conducted by 2^nd Defendant and its report on Plaintiff’s Land Certificate No GA 11761

·         Exhibit 11-The judgment of Jackson J, dated 26^th May 1952 tendered by 1^st Defendant

·         Exhibits 12, 13 and 14 – Judgments of the High Court and Court of Appeal showing that neighbours of the 1^st Defendant have been declared owners of their land as against the Nungua stool

·         Exhibit D- E I 46 tendered by the Plaintiff, with no evidence of its later revocation and land stated therein having been released to the Nungua stool

Counsel also states that the court erred in giving weight to Exhibit E ie E I 46 and Plaintiff’s unregistered Exhibit A which it wrongly held had priority over 2^nd Defendant’s registered document, exhibit 2.

Further, counsel states that the evidence of 2^nd Defendant’s DW1, a Representative of the Chief Registrar of the Lands Registration Division of the Lands Commission, confirming the matters stated in 2^nd Defendant’s exhibits 8 and 9 should have been treated as supporting their case.

He also states that even the evidence of Plaintiff’s Representative given in cross examination where he admitted that his search at the Lands Commission prior to purchasing the land showed that it was registered in the name of 1^st Defendant and SDC should have been treated as supporting their case.

Counsel for the Plaintiffs did not respond to the grounds of appeal in the order in which they were raised but he by and large answered the substance in the said grounds by his written submissions.

Having stated earlier that the resolution of this appeal hinges on the question of whether the Nungua stool or the Martey Tsuru family are the original owners of the disputed land, the complaints of the 1^st and 2^nd Defendants if proven should show that the evidence led establishes on the balance of probabilities that the land in dispute and that counterclaimed for by them are owned by their grantor, the Martey Tsuru family rather than the Nungua Stool, the Plaintiffs grantor. It is however to be borne in mind that, as rightly stated by the judge in his judgment, the ownership of Martey Tsuru lands is not what is in dispute in this matter.

In short, which of the parties succeeded in proving the title of their grantors, their mode of acquisition, and acts of possession in respect of the disputed land. See the case of Mondial Veneer (GH) Ltd v Amuah Gyebu XV (2011) 1 SCGLR 466

The 2^nd Defendant’s Representative testified simply at page 40 of volume Two of the Record of Appeal (ROA) that they bought the land from Stanford Development Services Company Limited (SDC) who also acquired it from the 1^st Defendant family. He tendered the agreement between that family and Stanford as Exhibit 2 and the report of a search conducted by them as exhibit 3 and the Deed of Assignment given them as exhibit 4. He stated that apart from the AMA, demolishing their wall for it having been put up without a permit nobody challenged their activities on the land till they were served with an order of injunction from the court.

1^st Defendant’s Representative, Daniel Marquaye Mama testified that they own a piece of land at Martey Tsuru now known as East Airport lying between the Accra-Tema motorway and the Accra-Tema railway line. He stated that it was acquired by long occupation by two brothers (obviously his ancestors) Nii Martey Tsuru and Nii Martei Tsuru and that the descendants of these two have since continued to occupy the said land by farming and building houses there. He stated that one Nii Ashikwei, a chief of Teshie encroached on the said land and upon being confronted wrote a letter to the Chief Lands Officer confirming the Martey Tsuru family’s ownership of the land. This letter was tendered as 1^st Defendant’s exhibit 2 subject to a certified copy being produced before the judgment was delivered.

The witness described the boundaries of their land and further stated that a portion of this land was acquired by Government in 1976 by E I 140 for the Accra-Tema Motorway Industrial Area. He tendered a copy of the said Executive Instrument as exhibit 3. He also stated that Government again proposed acquiring the rest of their lands and those of some other families for a Military training Ground. However upon a petition by them and those other families concerned, the land was released to them in 1990 with a disclaimer and site plan. They tendered exhibits 4 and 5 as the petition and the reply to it respectively. The witness also tendered as exhibit 6 the document releasing their land to them and stated that the released land included the disputed land being claimed by the Plaintiff. He further stated that the Martey Tsuru family prepared a site plan of a larger portion of their land for which they obtained a Land Title certificate which he tendered as exhibit 7.

He however stated that exhibit 7 did not cover the area in dispute because at the time, the family mistakenly thought that this portion of their land had been acquired by Government by E I 140. They later proceeded to have a layout prepared- exhibit 8- and had this portion, zoned as the Light Industrial Area. The witness tendered exhibit 11, the Jackson judgment and said it adjudged the disputed land as falling within Teshie traditional area and that the Martey Tsuru family is part of the said traditional area. He also tendered exhibit 12, a judgment which he said adjudged Martey Tsuru as “the allodial owners of the disputed land and the whole area”.

I will now examine the alleged lapses identified by counsel for the 2^nd Defendant which were earlier listed and determine if they indeed would have tilted the scales of probability in favour of the Defendants had they indeed been treated in the manner advocated by counsel in his submissions.

Counsel first referred to Exhibit 1 which is an application for injunction by the Plaintiff to which was attached a Land certificate which was not signed or sealed. He contends that this was a fraudulent document. Without going into the issue of fraud at this stage, the question to be asked is whether the said exhibit if indeed fraudulent helps to prove the title of the 1^st Defendant by tilting the scales of probability in their favour.

The pleadings and evidence show that the Plaintiffs did not base their claim on this Land Title Certificate. I am of the opinion that it does not go to prove the traditional history and mode of acquisition of any of the parties. Indeed it does not even count as a recent act of possession.

Exhibits 2 and 4 refer to the land transaction between the the 1^st Defendant and SDC, the assignor of the 2^nd Defendant. They are evidence of the transaction and do not prove the title of the 1^st Defendant without more.

Exhibit 3 merely states that the land conveyed to SDC is NOT state land. It does not say at the page referred to by counsel that it is registered in the name of the 1^st Defendant. What it states is that the land was conveyed by Nii Kwao Martei & ors to SDC who also assigned it to the 2^nd Defendants. Once again this document without more does not prove title of the 1^st defendant though it could count as evidence of the 1^st Defendant’s dealings with the land stated therein, admitted to be part of the disputed land.

Exhibit 5, the 2^nd Defendant’s building permit, exhibit 7 showing the extent of 2^nd Defendant’s development on the land, exhibits 8 and 9 confirming that Plaintiff’s title is fraudulent do not go to prove the title of the 1^st Defendant. More is expected for the proof of the said title.

Exhibit 11 is the 1952 judgment of Jackson J. Per paragraph 11 of their amended statement of defence, the 1^st Defendants say that this judgment settled the boundaries between Nungua Teshie and Labadi. The Jackson judgment will be discussed in depth later in this judgment. Suffice it to say that I am satisfied that it did NOT settle the boundaries generally between the three stools as contended. Its scope was limited to a particular area and unless the area in dispute falls into that area, it does not help the 2^nd Defendant’s attempt to prove his grantor’s title.

Exhibits 12, 13 and 14 are judgments of the Courts. 2^nd Defendants say that by these judgments

neighbours of the 1^st Defendants have all been declared owners of their land against the Nungua Stool. Exhibit 12 deals with land covered by Land Title Certificate No 2677. That land is different from the one being claimed by the Plaintiff which 1^st Defendants admit is not to be covered by the said Land certificate. Exhibits 13 and 14 also deal with lands different from that being claimed by the Plaintiffs and until the lands the subject matter of those judgments are proved to be directly connected with that claimed by the Plaintiffs, they do not do much for the 2^nd Defendant’s case by way of establishing the title of their grantor or constitute acts of possession of the said land.

Counsel submits that the trial judge did not consider any of these exhibits in his judgment. A reading of the judgment shows this to be true. It is however clear from my analysis of the import of these exhibits that had they even been considered by the court, contrary to counsel’s submission at page 14 of his written submissions, they would not have affected the judge’s conclusion that the 1^st Defendant was not the owner of the land and could therefore not have made a grant of a portion of the said land to the 2^nd Defendant.

Counsel also makes reference to some of the exhibits tendered by the 1^st Defendants. Their Exhibit 2 is a letter from Nii Ashikwei Akomfra III, the Teshie Mantse at the time stating that a certain piece of land measuring about 325.08 acres lying between the Accra-Tema Motorway and Accra-Tema railway line at the Motorway industrial area belongs to the Martey Tsuru family. It refers to an attached site plan which was not tendered. It is to be remembered that the Plaintiffs are not claiming the disputed land through Teshie so a disclaimer by a Chief of Teshie does not bind them. Without more this exhibit does not carry much weight.

A study of exhibit 3, E I 140 shows the acquisition of some land by Government measuring 688.02 acres. The general position that the disputed land which is 2.59 acres does not fall into any of the Government acquisitions although both parties say the contrary at certain stages of the trial. See the evidence of PW1 and the cross examination of 1^st Defendant’s Representative at page 359 volume (1) of the ROA. Exhibit 2 gives a different acreage of Martey Tsuru lands ie 325.05 acres. If the acreage in exhibit 3 is added to the size of the disputed land which is admitted to be 2.59 acres, an acreage of 690.61 is arrived at. It appears that 1^st Defendants themselves are not certain about the size of the land they claim as theirs. Infact the 1^st Defendant’s Representative states that in 1992 the land the family registered as theirs did not include the disputed land because they wrongly thought Government had acquired it. This E I cannot therefore be evidence of their ownership of the disputed land. Indeed counsel for the Plaintiff puts it to their Representative at page 2 of volume 2 of the ROA that the land covered by the said Executive Instrument did not belong to the Martey Tsuru family.

Exhibits 4, 5 and 6 of 1^st Defendant are their petition to Government, response to the petition and a release of their land which they say Government had proposed to acquire for military training grounds. This land is described as being at Accra-Teshie. Their position is that the disputed land forms part of this land released to them. The witness states that after the release of the land they made a site plan and registered the land and got Land Title Certificate No GA 2677 ie exhibit 7. He later states that the disputed land is NOT captured in this Land Title Certificate as a result of their mistaken belief that this disputed land was part of what was acquired under E I 140. This means that this exhibit by itself cannot be evidence of the 1^st Defendant’s ownership of the disputed land. The interesting question which arises is this. If they indeed had this mistaken belief, how then, did the same family- even though by a different head- purport to grant a portion of the disputed land to SDC in1993 after E I 140 had been issued in1976?

In fact 1^st Defendant’s Representative admits at page 11 of the ROA that in 1997 per exhibit 12 they limited their claim to land covered by their Land Title Certificate even though they knew at the time that they owned the disputed land. The 1^st Defendant’s counterclaim is for land covered by Land Title numbered GA 2677 which they themselves say does not cover the disputed land and for the adjoining Light industrial area pleaded in paragraph 12

The said paragraph 12 states as follows

The Defendant avers that the remaining part of the land had earlier been acquired by the Republic of Ghana for the Accra-Tema Motorway Industrial Area by E I 140…..

I believe the additional land counterclaimed for by the 1^st Defendant is what is stated in paragraph 13 and not paragraph 12. That is the only way of making sense of the latter wording of their counterclaim.

Regarding exhibit 8, merely zoning an area without evidence that a rival claimant stood by and watched without complaint cannot be taken as unequivocal evidence of ownership.

1^st Defendant also tendered certain judgments of the court as having been given in their favour. Exhibit 12 is in respect of land situate at Martey Tsuru village. Exhibit 12 and 13 it is clear relate to Tesa lands which from the site plans lies to the North West of Martey Tsuru village.

None of these judgments relate to the disputed land so they are not evidence of ownership or constitute acts of possession over the disputed land.

2^nd Defendant also sought to establish acts of possession by pictures attached to exhibit 9 showing that they had built up to lintel level and erected pillars on the land. Their witness told the court at page 78 of the ROA that these works were done within three months. In any case the Representative of the Plaintiff testified that identifying the one working on the disputed land was proving difficult so they originally issued the writ against the unknown developer. In the light of this, those activities cannot amount to long and uninterrupted possession in the circumstances of this case.

Regarding the case of the Plaintiffs, as stated earlier in this judgment, the trial judge found that the land in dispute belonged to the Plaintiffs. Is that finding borne out by the evidence led? How did the Plaintiff go about doing this? Plaintiff testified through its CEO, Cyril Yeboah. He testified that he acquired the land from one Borketey Alabi in the year 2002 who had been granted the land by the Nungua stool of which his father was a member in the year 2002. He tendered his deed of assignment dated 30^th May 2002 as exhibit A with site plan attached. This exhibit A is earlier in time to 2^nd Defendant’s exhibit 4 which was executed in the year 2006. It is true that counsel for the Defendant raised issues about a deed of assignment attached to an earlier application for injunction to the effect that it had a different date and did not contain the amount of consideration paid for the land. What is important is that in this suit, it is Exhibit A which has been tendered as evidence of Plaintiff’s title to the disputed land.

Plaintiff’s Representative also stated that thereafter he put some sand and stones on the land. Later he found workers of the Defendants on the land. He denied that the disputed land belonged to the Martey Tsuru family of Teshie and said it was Nungua stool land. His evidence in chief and evidence elicited in cross examination show that he took the word of his vendor about his ownership of the disputed land.

He admits that a search he conducted revealed that the disputed land was registered in the name of SDC whose grantor was the 1^st Defendant, yet he went ahead to purchase it because his vendor whose grantor was the Nungua stool showed him some unregistered document and gave him

“histories and narratives” of the land. During cross examination by counsel for the 2^nd Defendant he admitted that although he was aware of the registration of the land by SDC, he was also in the process of registering his document.

PW1 Nii Kpakpo Sraha said he was the secretary to the Nungua Mantse among other positions held. He stated that he knew about Nungua stool properties from archives, his late father who was a lawyer, personal research, recent publications and grants by the stool. He identified the disputed land as being adjacent to the Bank of Ghana warehouse on the spintex road. He said the Governor of Gold Coast acquired land in the area from the stool for a railway line. The spintex road and the motorway including the way leaves, the last mentioned on which are situate the Bank of Ghana warehouse and other light industries were also acquired by E I 46 (exhibit D) and compensation paid to Nungua stool grantees who were on the land. He denied that E I 140 covered land owned by the 1^st Defendant family. He also denied that the judgment of Jackson J adjudged Teshie as owners of the land the subject matter of that judgment but rather awarded them compensation as farmers. He stated in cross examination that the Martey Tsuru family did not arrive at their present village before 1904 and that the village is located on Nungua land.

PW2, Nii Tsui Alabi was a traditional Ruler in Nungua and the father of Pendergrass Borketey Alabi, the grantor of the Plaintiff. He testified that he and his father had farmed and grazed animals on the disputed land around 1954. He said after Government took some of the land, they went to the stool to be given the disputed land which they had already settled on. He said they were given a document in his son’s name. He admitted in cross examination that the nearest village to the land was the Martey Tsuru village but said while that family was from Teshie, the village itself is within the Nungua Traditional Area.

It is clear that PW1 is well versed in the history of Nungua stool lands. He tendered the document evidencing the 1953 grant of the land around the area of the disputed land to the Governor of the then Gold Coast for the construction of the railway line as exhibit C. He further testified to a grantee of the Nungua stool being given compensation by Government in 1976 when land was acquired for Phase 1of the Accra Tema motorway. The said exhibit was not impugned in any way. The evidence about payment of compensation was also not impugned. It is worthy of note that Exhibit D, E I 46 was used to acquire land for phase 1 of the Accra -Tema Motorway.

The 1^st Defendant’s position is that the land for the Accra Tema motorway Industrial Area was acquired from their family by EI 140.. During cross examination of PW2 at page 356 of volume (1) of the ROA, it was surprisingly suggested to the witness that the disputed land falls into the portion of this land which had been earmarked for use as Ghana Army training grounds but was later released to the 1^st Defendant in 1992.

In the light of these competing claims, further concrete evidence of ownership of the land was needed. 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 ownership and title than judgments of the courts on plots of lands not directly connected to the disputed land. They also outweigh 2^nd Defendant’s three month building activities.

PW2 also testified to he and his father having farmed on the land in his childhood. This evidence of a living witness to acts of possession by indigenes of the Nungua stool on the disputed land was surprisingly not cross examined upon by both defence counsel. That evidence therefore remained unchallenged. It is undisputed that the land in question is adjacent to the Bank of Ghana warehouse and shares boundary with the spintex road and lies in the environs of the land covered by exhibit C. The Plaintiff was successful in proving the root of title of the Nungua stool, mode of acquisition and also established recent acts of possession by the said stool.

From all this, I am satisfied that even though the trial judge’s statement that the two defendants did not lead an iota of evidence in support of their counterclaims is not correct, in the light of their failure to prove the title of the 1^st Defendant to the disputed land and establish acceptable acts of possession thereon, the trial judge’s dismissal of same as remaining unproved is borne out by the evidence on record. Further, his finding at page 29 of the ROA that the land in question does not belong to the 1^st Defendants which they can grant to the 2^nd Defendant is also borne out by the record.

Grounds (i) and (a) of the grounds of appeal filed by both Defendants lack merit and fail. They are dismissed.

Ground (ii) of the 1^st Defendant’s ground of appeal is double pronged. It is based on an alleged error of the court when it found that the disputed land is covered by EI 46; It is admitted by counsel for the Plaintiffs at page 8 of his submissions that the disputed land is not part of land acquired by government by any Executive Instrument and the statement to the contrary by PW1 on the issue ought not to have been accepted by the trial judge. Both Counsel appear to be ad idem on that although as earlier stated 1^st Defendants themselves sometimes stated that the disputed land was part of land acquired by EI 140 but was later released in 1992. That aspect of this ground of appeal succeeds but in the light of other evidence led to establish the Nungua Stool’s title to the disputed land, I am of the opinion that this error on the part of the judge does not change his final finding that

“the land in question does not belong to the 1^st defendant which they can grant to the 2^nd Defendant”.

The alleged zoning by the 1^st Defendant referred to in this ground of appeal is not unequivocal evidence of ownership by 1^st Defendant.

Regarding ground (iii), as stated in the immediately preceding paragraph, having the disputed area zoned, by itself is not sufficient evidence of ownership though that act, taken together with others can constitute sufficient acts of possession. Counsel for the 1^st Defendant refers to overt acts by his client such as putting up pillars and columns and says these were not challenged in cross examination. Unless one is putting up a defence of a bona fide purchaser for value without notice, no acts of possession can override the rights of a person who proves legal title. However, as stated elsewhere in this judgment, the evidence shows that between the parties, it is the Plaintiff who succeeded in proving the more substantial and recent acts of possession. The said ground lacks merit and fails: It is dismissed.

Ground (iv) alleges misdirection on the part of the trial judge when he described two exhibits as over-reaching and self-serving because they were prepared during the pendency of the suit to defeat the ends of justice. The arguments by counsel for the 1^st Defendant appear to be that exhibit 15 was prepared by the Director of Surveys on 29^th june 1993 ie before the present suit was commenced and that although exhibit 17 was prepared on 13^th June 2013 ie during the pendency of the suit, it was a reproduction of exhibit 15 but showing the disputed area.

The record shows at page 17 of volume 2 that Plan No Y 1043CC was tendered as exhibit 15. The only date on it is 13/6/2013, During cross examination, the witness tendering it confirmed this date and said it was prepared from their official record. This does not change the fact that it was prepared during the trial, counsel’s submissions notwithstanding. It is indeed self-serving because the witness admitted that it was produced according to boundaries shown by the 1^st Defendant.

A document prepared by the 1^st Defendants which seeks to connect the disputed land to exhibit 15 entitled “site for Martey Tsuru Family” without any input from Plaintiffs can rightly be described as self-serving. Its position is somewhat like a statutory declaration. What one says is what is stated in the declaration. DW1 who said he was the family surveyor of 1^st Defendant tendered exhibit 17 prepared by him upon their instructions without any input from the Plaintiffs. It was dated 3^rd April 2013 and he admitted in cross-examination that, that was the day he did the work as a private job.

Clearly it was done during the course of the trial and served the purposes of the 1^st Defendant. The judge was right in describing it as self-serving. This ground lacks merit and fails. It is dismissed.

Ground (v) is premised primarily on the 1952 judgment by Jackson J. Counsel contends that having accepted the overwhelming evidence of the said judgment that the disputed area including the Martey Tsuru village belonged to Teshie, and dismissing the evidence of PW1, the judge misdirected himself when he failed to give judgment in favour of the 1^st Defendant.

The said judgment states that the first occupants of the land acquired for the infantry training school were the Nunguas. This judgment which was to decide who was to receive compensation for land taken by the colonial government for use as an Infantry training school found that from traditional history, the Nunguas were the first to come to the area at the time of the acquisition. However, there was no evidence that the Nunguas were in possession as owners (at the time of the acquisition) of the acquired land as owners and so entitled to compensation. In that regard it was Teshie which was entitled to compensation.

The Jackson judgment is only relevant to this suit if it can be connected with the disputed land. The judgment describes the land the subject matter of that judgment and Government acquisition in the following words

“…the western boundary…is situate some two miles to the east of the town of Labadi and its eastern boundary about ½ a mile to the west of the town of Teshie. Two miles to the east of Teshie lies the town of Nungua….”

No evidence was led to connect the disputed land to the land described above. In any case it will not be proper to declare title of the disputed land in the 1^st Defendant family alone on the basis of this judgment when the reference in the judgment was to Teshie.

Counsel has also submitted that the trial judge dismissed the evidence of PWI. That is not a true reflection of what was stated in the judgment. What the court stated was that the position held by the witness on the issue of the school of infantry was false. The witness had stated that the Jackson judgment had only dealt with payment of compensation for crops and had not determined ownership of land. For all these reasons, the allegation of misdirection against the trial judge stands unproved. It fails and is dismissed.

Ground (vi) states that it was wrong of the judge to state that the parties should have called adjoining boundary owners since the issue before the court was not a boundary dispute. The judge stated that it was crucial in a suit for declaration of title to land to call adjoining neighbours to testify and said that the parties did not call any boundary owners to testify but was quick to add that it was not the number of witnesses which mattered but the weight to be attached to their evidence. It cannot be denied that the supporting evidence of a person with whom a claimant to land shares boundary is useful if they have the same grantor. It is however not a requirement. A party is at liberty to prove their case be it for declaration of title to land or some other claim by admissible and credible evidence. The trial judge never stated otherwise. This ground also has no merit and fails. It is dismissed.

Ground (vii) of the grounds of appeal is that the judge was wrong in relying on oral traditional history without taking into account the long occupation, current acts of possession, development infrastructure and control of the Martey Tsuru Lands by the 1^st Appellant. The judge rightly stated that it was NOT Martey Tsuru lands which was in dispute although the said family was also claiming the disputed land as theirs. The disputed land is not captured by their land title certificate and from their own evidence, 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 an Executive Instrument. What needed to be proved when there were competing traditional evidence such as in this case were recent acts of possession in respect of the particular land.

In the circumstances of this case, as stated earlier, neither bearing responsibility for zoning the disputed area nor preparing a plan for it without proof that the Plaintiff’s grantor was aware are sufficient acts of possession. Counsel states in his submissions that there is evidence of grants made to several individuals, churches, and companies. No evidence on oath was led to this effect. Exhibit 10, said to be pictures of the home of the original founder of Martey Tsuru, their present mausoleum and cemetery may very well be indications of allodial ownership of their undisputed family lands but not of the disputed land unless it is first proved to be part of the said family land. This, they failed to do. The evidence on record does not bear out the allegation in this ground of appeal. It lacks merit and fails as a result. It is dismissed.

I will now deal with the other grounds of appeal filed by the 2^nd Defendant other than the omnibus one that the judgment is against the weight of evidence.

Ground (b) which states that the judgment failed to address the evidential burden cast on the Plaintiff has effectively been dealt with when at page 5 of this judgment I dealt with Counsel’s submission that the trial judge did not evaluate the case and evidence of the Plaintiff. For reason stated then, I find that there is no merit in this ground of appeal. It also fails and is hereby dismissed.

Counsel took grounds (c) and (d) together. The import of these grounds is that the judge erred in failing to dismiss the Plaintiff’s case, when the alleged disposition of the land by Plaintiff’s grantor did not meet conditions laid down in Article 267 of the 1992 Constitution and section 8 of the Administration of Lands Act, 1962 (Act 123). According to counsel, by these, stool land can only be disposed of with the concurrence of the Minister in charge of Lands and when the Regional Lands Commission certifies that the said disposition is in compliance with the development of the area in which the land is situate.

Counsel submits that since section 8(1)(b) of Act123 makes a disposal of land which does not comply with the provisions of section 8 of no effect, the trial judge should have declared the grant to the Plaintiffs a nullity. Counsel cites the Supreme Court case of Nartey v Mechanical Lloyd Assembly Plant Ltd (1987-88) 2 GLR 314 in support of this position.

In response Counsel for the Plaintiffs says the above case was decided before the promulgation of the 1992 Constitution and cites the Supreme Court case of Western Hardwood Enterprise Ltd v West Africa Enterprise Ltd. (1998-99) SCGLR 105 as the current authority on the matter.

The Supreme Court in that case, per Aikins JSC had observed that the Minister’s concurrence did not need to precede the disposition of land. While such a disposition remained of no effect, it was not void strict senso since it could be activated by obtaining the said concurrence.

Section 8 (1) (b) of the Act which has been amended originally read as follows in part

“A disposal of a land which involves the payment of a valuable consideration or which would, by reason of it being to a person not entitled by customary law to the free use of land, involves the payment of available consideration, and which is made

(a) By a stool

(b) By a person who, by reason of that entitlement under customary law, has acquired possession of the land without payment of a consideration or in exchange for a nominal consideration

“…shall be subject to the concurrence of the Minister and shall be of no effect unless such concurrence is granted”

This concluding portion has now been replaced with the following

“ ….is subject to the operation of article 267 of the Constitution.”

Article 267 (3) states

“There shall be no disposition or development of any stool land unless the Regional Lands Commission of the region in which the land is situated has certified that the disposition or development is consistent with the development plan drawn up or approved by the planning authority for the area concerned

Counsel for the Plaintiff takes the position that the West Hardwood case still applies even in the face of the provisions of Article 267 (3). I agree with that position for the simple reason that that case was decided after the promulgation of the 1992 Constitution and so the Supreme Court must have had the provisions of the Constitution in mind and this court is bound by the decisions of the said Court. What this means is that the disposition to the Plaintiff cannot be declared a nullity by this court now notwithstanding the failure to comply with the statutory and constitutional provisions in question.

The trial judge’s failure to dismiss the Plaintiff’s case for the breach of these statutory and constitutional provisions was not an error and the judgment was not per incuriam for the same reasons.

This ground of appeal also fails and is dismissed.

Ground (e) deals with an allegation of fraud made against the Plaintiff. It is contended that the judge erred when he failed to consider the allegation of fraud against the Plaintiff and the evidence thereon which questioned the title of the Plaintiff’s grantor and his legal basis for mounting the present action.

Issue (k) set down for determination at the trial was whether or not the grant of the land in dispute to the Plaintiff is vitiated by fraud. The 2^nd Defendant had pleaded in paragraph 5 of his statement of Defence as follows

The Defendant will further aver that the documents referred to in paragraph 5 of the Plaintiff’s statement of claim are fraudulent and same are void and of no legal effect. Specifically, the Land Certificate No GA 11761, allegedly issued by the Land Title Registry to Pendagrass Borketey Alabi. Alias Borketey Alabi (Plaintff’s Assignor) is fictitious and fraudulent.

They then go ahead to give particulars of fraud as follows

i. Neither the Chief Registrar of the Land Title Registry nor any person acting in that capacity has signed or issued any Land Certificate in the name of Pendagrass Borketey Alabi alias Borketey Alabi

ii. The Land Certificate No. GA 11761, purportedly issued to Pendagrass Borketey Alabi alias Borketey Alabi (Plaintiff’s Assignor) is neither signed nor sealed by the Chief Registrar of the Land Title Registry

iii. The disputed land is not even plotted at the Land Title Registry as evidenced by an Official Search dated 8^th May 2007 conducted at the land Title Registry. The Site Plan contained in the Land certificate No. GA 11761, describing the disputed land as Parcel No. 5 section 102 Light Industrial Area, Motorway is also fictitious, bogus and fraudulent.

iv. Further, Paendagrass Borketey Alabi alias Borketey Alabi (Plaintiff’s Assignor) has neither plotted the disputed land at the Survey Department in his name nor any other person’s name as evidenced by a Report dated 10^th July 2006 from the Survey Department.

The Plaintiff’s said paragraph 5 states as follows

Pendergrass Borketey Alabi alias Borketey Alabi had his document processed at the Land Title Registry and was in possession of the land

Their paragraphs 4 and 6 also state as follows

4) By a lease dated 9^th February, 1996 the Nungua stool granted the land to Pendegrass Borketey Alabi, son of Nii Tsui Alabi as a confirmation of his grandfather’s interest in the land

6) By an Assignment dated 19^th March, 2002 Pendergrass Borketey Alabi granted the said bland to Plaintiff for valuable consideration and put Plaintiff in vacant possession of same.

Clearly then the basis of the Plaintiff’s claim is not the unsigned Land Title Certificate they, admittedly, attached to a motion on notice for interlocutory injunction against the 2^nd Defendant. In the said motion paper, the Plaintiffs state in paragraph 13 that they have a yet-to-be signed Land Title Certificate numbered GA 11761. They also state that their interest has been plotted in the records of the Land Title Registry. The 2^nd Defendants say this is untrue.

The particulars of fraud focus on the absence of a signature and the fact that a search revealed that the disputed land has not been plotted at the Land Title Registry or the Survey Department. Even if the last mentioned is true, does that untruth stated in the affidavit in support of the motion amount to fraud? An allegation of fraud, it has been said must be proved by clear and cogent evidence. See Fenuku v John Teye (2001-2002) SCGLR 985 cited by the judge in his judgment at page 165 of the ROA.

As stated by Counsel for the Plaintiffs, their claim is not based on the Land Title Certificate in question. For that reason, whatever flaws there are in the said certificate cannot by themselves be sufficient reason for vitiating the grant to the Plaintiffs or for a finding that they have no legal basis for bringing the present action. The important thing was the weight to be attached to the said certificate. It is however true that the trial Court did not make a finding on the issue of fraud even though it was one of the issues set down. This ground of appeal succeeds and is upheld. That being said, and as advocated by counsel for 2^nd Defendant at page 29 of his submissions, by virtue of this Court’s statutory power to treat an appeal as a rehearing, applying the authorities on fraud stated by the judge at pages 164 and 165 of the ROA to the evidence led in this case, I am satisfied that fraud was not successfully proved by clear and cogent evidence and certainly not beyond reasonable doubt as required by section 13 of the Evidence Act 1975.

Ground (f) attacks the judge’s application of the principle of “feeding of the estoppels” and says its application in this case was erroneous and should be dismissed. The judge in applying the said principle stated that Government had leased the land covered by the Executive Instruments to the Nungua Stool for ninety nine years. There is no such evidence on the record. Counsel for the Plaintiffs agrees to this but submits that there is overwhelming evidence in support of their case and so this error on the part of the judge should not affect his final conclusion upholding their claim. I am satisfied that the trial judge’s application of the principle on non-existent evidence was erroneous. This ground of appeal succeeds and is upheld.

Ground (g) fails for reasons earlier given at page 27 of this judgment in the discussion of 1^st Defendant’s exhibit 11, the Jackson judgment. Similarly ground (h) also fails for reasons found at page 26 of this judgment in the discussion of exhibits 15, and 17.

In conclusion, notwithstanding my having upheld some of the grounds of appeal, the appeals brought by both Defendants fail. The decision of the trial judge granting the claim of the Plaintiffs is hereby upheld for reasons given above. Costs of GH¢3,000.00 against the 1^st Defendant/Appellant, and GH¢2,000.00 against the 2^nd Defendant/Appellant.

SGD

……………………

AVRIL LOVELACE-JOHNSON

JUSTICE OF THE COURT OF APPEAL

SGD

I AGREE                                                                   ………………….

P. K. GYAESAYOR

JUSTICE OF THE COURT OF APPEAL

SGD

I ALSO AGREE                                                       ………………….

ADUAMA OSEI

JUSTICE OF THE COURT OF APPEAL