MARIAMA OWUSU, J.A.:

On the 28^th of May 2014, the High Court, Accra gave judgment for the plaintiff against defendants. The defendants’ counterclaim was dismissed. In her judgment, the trial judge held among other things as follows:

“The grantors of the defendant therefore not having any interest whatsoever in the land in dispute at the time they purported to have granted the land to the defendants, same could not have been transferred to the defendants. The defendants therefore have no valid title to the land in dispute and they could not have sustained any counterclaim in this suit, and same is hereby dismissed.

Judgment is hereby entered in favour of the plaintiff as follows;

1. A declaration of title to all that piece of land described in the schedule to the statement of claim hereto hereby made in favour of the plaintiff.

2. Plaintiff is to recover possession of all that piece of land described in the schedule to the statement of claim hereto.

3. The defendants, their agents, privies and all that takes authority from them are hereby restrained from interfering with plaintiff’s enjoyment of the land.

4. The defendants are to demolish any structure on the land within 30 working days.

5. Gh¢5,000.00 damages inclusive of cost is hereby awarded against the defendants.

6. The title certificate of the defendant with No. GA 20739 of 2^nd day of December, 2004 is also hereby cancelled.”

Dissatisfied with the decision of the High Court, the defendant appealed to the Court of Appeal on the following grounds:

“1. The judgment is against the weight of evidence.

2. The court erred when it ruled that “Res judicata” did not apply in this case.

3. The court erred when it failed to take full cognizance of the Exhibit from Land Title Registry.

4. The court erred in law when it accepted the evidence of the plaintiff on his title to the disputed land without proof as laid down by law.

5. The court erred in law when it failed to consider the competing roots of title of the parties.

6. The court accordingly erred in law when it ruled that the land title certificate of the 2^nd defendant was procured either by fraud or mistake and should be cancelled.

7. The court erred in law when it depended on limitation when limitation was neither pleaded nor canvassed by the plaintiff.”

The reliefs sought from the Appeal Court are:

“a. The judgment of the trial court to be set aside

b. Judgment to be entered in favour of the defendant.”

Before dealing with the arguments canvassed in support and against this appeal, I will give a brief background of the case.

By his writ of summons and the accompanying statement of claim, the plaintiff/respondent (hereinafter referred to as plaintiff) averred that he is the owner of the disputed land described in the schedule of the statement of claim. The plaintiff averred further that, by a conveyance dated 1^st February, 1960 between Nii Amon Kotei, head of the King Tackie Tawiah family of Accra and his deceased father, John Andrews Quartey, the disputed land was conveyed to his late father. The grant was duly executed and the Deed registered as AC10806/60.

The plaintiff continued that, upon the death of his father, the property became vested in him by a virtue of a Will and a Vesting Assent dated 27^th March, 1988 and registered as AR/634/2003. It is the case of the plaintiff that he put up a building and wall on the land. Part of the wall surrounding the building was broken down to allow a proposed road which was never constructed, but as at now, the foundation of the wall which was destroyed is still visible.

The plaintiff concluded that he noticed the defendants trespassed onto a portion of his land and warned them off. Later, it came to his knowledge that the 2^nd defendant has applied to the Land Registry to register an alleged lease between one Paul A. Tetteh and the defendant church to which he objected and drew the attention of the Registrar to his conveyance registered in the Records of the Lands Commission since 1960. His registered document notwithstanding, the Land Title Registry issued the defendants with Land Title Certificate in respect of the disputed land alleging it conducted investigations into plaintiff’s objection and found that there was no basis of his objection. He maintains that the Land Title Certificate to the defendant was fraudulently procured. He gave the particulars of fraud hence his action.

On their part, the defendants/appellants (hereinafter referred to as defendants) denied plaintiff’s claim and put him to strict proof of the averments contained in the statement of claim. In particular, the defendants averred that the plaintiff has never owned the disputed land since the King Tackie Tawiah family, plaintiff’s grantor, never owned the land.

Consequently, plaintiff’s grantor lacked the requisite capacity to convey the land and any registration or vesting assent made will be null and void. On plaintiff’s possession, the defendants averred that, the former never built anything on the land because when the defendants entered the land same was bare. On the contrary, the defendants averred that they were granted the disputed land by Paul A. Tetteh who derived his title from Onamrokor Adain family of Akweteman, the original owners of a larger track of land which the disputed land forms a part and initiated action for the registration of same. On the plaintiff’s objection to their registration of their land, the defendants averred that, the said objection was fully investigated by officials of the Land Title Registry whereby plaintiff’s objection was overruled and a letter to that effect communicated to the plaintiff. Thereafter defendants’ land was registered. Consequently, the defendants maintained the issuance of the Land Title Certificate was properly done without any fraud as they obtained the land from the proper owners.

The defendants further maintained that they obtained judgment against one Broni, plaintiff’s tenant who was on the land. The defendants therefore counterclaim as follows:

The plaintiff is estopped by res judicata

Declaration of title in favour of the defendants’ church.

Perpetual injunction against plaintiff, his agents, assigns, etc.

At the trial, the plaintiff testified and called one witness in proof of his claim and tendered some documents. Defendants also testified through 1^st defendant and called one witness. They also tendered some documents.

As stated supra, at the end of the trial, the defendants counterclaim was dismissed and judgment entered in favour of the plaintiff.

It is this judgment that is in contention before this Court.

In arguing the appeal, counsel for the defendants on ground one; “The judgment is against the weight of evidence”, submitted that by that ground of appeal, this appellate court has the responsibility to examine the evidence on record to ascertain whether or not the findings of the trial court reflected or were backed by the evidence on record. He cited the case of Gregory Vs. Tandoh IV & Hason [2010] SCGLR 971, 975 to buttress his point. In such a case, counsel argued this Court would be justified in the interference of the trial court’s findings. He cited the cases of Koglex Ltd. Vs. Field [2000] SCGLR 175, Achoro Vs. Akanfela [1996-97] SCGLR 209 and Fosua Adu Poku Vs. Dufie (deceased) & Adu Poku Mensah [2009] SCGLR 310, 313.

After quoting the introductory part of the judgment in contention, counsel for the appellant continued that, the trial Judge even before looking at the evidence on record had made up her mind. This is because by his statement of claim, the land being claimed by the plaintiff was 200 x 100 feet.

The land of the 2^nd defendant’s church by its site plan is 110 x 100 feet. 2^nd defendant’s land, according to his counsel does not form part of plaintiff’s land. The two lands are contiguous as indicated by the Land Title Registry. He concluded on this point that had the trial Judge taken her time to examine this evidence on record, she would not have started her judgment the way she did.

Counsel for the defendants, based on the above submissions invited us to dismiss the appeal on this ground.

In response to the above submission, counsel for the plaintiff submitted that by that ground of appeal, this court should satisfy itself that either on the facts or law or both facts and law, there is evidence that the trial Judge misapplied the facts and law and arrived at a different conclusion and if they are corrected the appeal would succeed. He continued that there is overwhelming evidence on record that the trial Judge correctly applied the law and the facts and arrived at the right conclusion. This is because counsel for the defendants’ argument centered on dimensions of the parcel of land and argued that the lands, i.e. the plaintiff and defendants’ land are contiguous and not the same as per the composite plan by the Land Title Registry.

He then argues that the two lands are separate. Counsel for the plaintiff submitted that, this is contrary to the defendants’ case that the land occupied by the plaintiff cannot validly be held to be his since his root of title is defective. However the defendants’ witness, DW1 under cross-examination admitted that the grantor of the plaintiff’s father, the King Tackie Tawiah family was granted land for their exclusive use by the Onamrokor Adain family. In addition, counsel submitted, the plaintiff was able to satisfy the trial court that other adjoining owners of the land had their grant from the same King Tackie Tawiah family for instance one Nancy Aku Allotey who lives in Canada. This piece of evidence according to counsel for the plaintiff was corroborated by PW1. Counsel concluded that from the testimony of DW1, there had never been any problem since 1960 when the plaintiff father went into possession of the land. Based on the foregoing, counsel submitted that the defendants failed to show that the evidence on record does not support the trial court’s finding that the disputed land formed part of the land granted to King Tackie Tawiah family. Consequently, the appeal should fail on this ground.

Both counsel for the plaintiff and defendants stated the law correctly as to what is expected of an appellate court like ours when an appellant appealed on the ground that, the judgment is against the weight of evidence. By that ground, we are expected to examine the entire record to ascertain whether indeed the findings of fact by the trial Judge is clearly supported by the evidence on record.

See the following cases:

Abbey Vs. Antwi V. [2010] SCGLR 17

Aryeh & Akakpo Vs. Ayaa Iddrisu [2010] SCGLR 891, 894

See also Rule 8(1) of C. I. 19 which provides that an appeal is by way of rehearing.

In their statement of defence paragraph 9 thereof, the defendants aver;

“9. In answer to paragraphs 11, 12 and 13, defendants say that it is a duty of the court to find which of the competing parties has a valid root of title and therefore whereas the plaintiff’s root of title i.e. King Tackie Tawiah family never owned the land, rather the land was owned by Onamokor Adain family the defendants root of title and whether there was a document or not becomes immaterial.”

Nowhere in the defendants’ defence did they aver that the land in dispute is separate from that owned by the plaintiff? To argue so in their written submissions is setting up a new case and clearly an afterthought. On the contrary, right from day one, the plaintiff showed that the disputed land formed part of land granted to his late father in a conveyance executed in 1960 made between Nii Amon Kotei, Head of the King Tackie Tawiah family of Accra and his deceased father. This grant according to plaintiff was executed by a Deed registered as AC 10806/60. At the trial, the plaintiff tendered an Indenture Exhibit ‘A’ and Exhibit ‘D’, a Search Report signed by the Executive Secretary of Lands Commission which shows that as at November 2001, the only transaction affecting the land in dispute was a conveyance dated 1/2/60 from Nii Amo Kotei to J. A. Quartey.

Then in 2004 the Land Title Registry in reacting to the objection by the plaintiff to the grant of Title Certificate to the 2^nd defendant attached a Search Report dated 30-9-2004 indicating that the land is by a lease dated 25/8/2000 from Paul A. Tetteh to World Fire Centre International and a judgment dated 29/6/61 in favour of Onamrokor Adain family.

Incidentally, the Search Report from the Land Title Registry attached to their letter is from Lands Commission. The following observation can be made on this Search Report:

Unlike Exhibit ‘D’ which was neatly typed and signed by the Executive Secretary, the one dated 30-9-2004 was hand written.

The designation of the person who signed at the Lands Commission is not clear.

The lease between Paul Ayettey Tetteh, Head of the Onamrokor Adain family in Accra and 2^nd defendant, the date is 1995 instead of 2000 which is found also in the fourth paragraph of the lease.

The question is why the hand written Search Report of 2004 as against the neatly typed and signed Search Report of 2001? Then the judgment in favour of Onamrokor Adain family in 1961; the question is what is the judgment about? Which people went to court and what did the court say, etc.

In the face of these anomalies, which were not explained by the defendants or officials from Lands Commission, the trial Judge was right in coming to the conclusion that the grantors of the defendant did not have any interest in the land in dispute at the time they purported to have granted the land to the defendants, since the plaintiff had occupied the land for over forty (40) years. Consequently, the defendants counterclaim could not be sustained.

From the foregoing, the defendants were not able to demonstrate the pieces of evidence on record if applied in their favour could have changed the decision in their favour or the pieces of evidence on record wrongly applied against them.

This ground of appeal cannot be sustained and it is hereby dismissed. This also disposes of grounds (3), (4) and (5) of the grounds of appeal filed as they all border on the improper evaluation of the evidence on record.

This brings us to ground two, that is “the court erred when it ruled that “Res Judicata” did not apply in this case.”

On this ground, counsel for the defendant argued that even though the Judge conceded that plaintiff did not join the earlier suit but tried to set aside the judgment, the earlier litigation was to the knowledge of the plaintiff. This is because, before that litigation, a letter was written to one Broni who was on the land and copied to the plaintiff. That letter was dated 5-2-2005. Therefore, Broni being a tenant or licencee of the plaintiff would normally bring such a letter or problem to the attention of the plaintiff even if plaintiff had no copy of the letter. But more importantly, the writ was filed against Broni who was physically on the land and one would expect Broni to bring the writ to the attention of the landlord. Broni did not contest the writ and judgment was entered against Broni.

Counsel submitted that it was not the responsibility of the defendants to have joined the plaintiff to the earlier suit since the law is that if a landlord stands by when there is litigation against his tenant, the judgment shall equally affect the landlord. He cited the case of Abraham Vrs. Akwei [1961] GLR 676 a decision by Ollenu, J. (as he then was). Accordingly, the plaintiff as the landlord of the fitter is bounded by the judgment of the Circuit Court and is thus estopped by Res Judicata to re-litigate the matter.

In response, counsel for the plaintiff submitted that, the defendants failed at the trial to establish and prove this allegation of Res Judicata. This is so especially when the plaintiff denied any knowledge of the said Broni and said the fitter he placed on the land was Prosper Anane. Counsel continued that the principle of Res Judicata cannot operate against the plaintiff for the reason that he was never a party to the said suit. Neither was the party against whom the action was brought a privy of the plaintiff. Counsel cited the case of Conca Engineering (Ghana) Ltd. Vs. Moses [1984-86] 2 GLR 319 to buttress his point. He concluded on this point that the plaintiff was never heard on the matter.

Having not been able to show that the plaintiff was aware of the pendency of the case against Broni who was unknown to the plaintiff, the trial Judge was right when she came to the conclusion that “Res Judicata” was not applicable to this case and invited us to dismiss the appeal on this ground.

Some preconditions which have to be established first before estoppel per rem judicatam can apply are:

“iii. That the judgment was final in that, it determined the disputed rights of the parties in the case and was not just an interlocutory judgment for example, a preliminary matter such as interim injunction, or committal order in a criminal trial, or a coroner’s finding relating to cause of death.

iv. That the judgment was on the merits of the case. A judgment will not be on the merits of the case if for example, the case was dismissed for want of prosecution, or any procedural step. Nolle Prosequi granted will not constitute a decision on merits. In a civil action, a case discontinued before judgment will not be a judgment on the merits of the case. But a party to a suit who suffers an adverse judgment through default will be estopped from raising a defence in a subsequent judgment…”

see the case of Republic (No. 2) Vs. National House of Chiefs; Ex Parte Akrofakrukoko II (Enimil VI Interested Party) [2010] SCGLR 134, 151 where His Lordship DR. Date-Baah (JSC) delivering the judgment of the court, quoted with approval, The Ghana Law of Evidence by the late Justice Ofori-Boateng at page 18.

In his reply to the defendants’ defence and counterclaim, the plaintiff denied paragraphs 18-22 of the counterclaim in which the defendants averred that it litigated with one Edwin Broni the plaintiff had put on the land and therefore the plaintiff is estopped per rem judicata from re-litigating this matter.

At the trial, the plaintiff said he did not know Edwin Broni. This is what transpired between plaintiff and counsel for defendants.

Cross-examination of plaintiff by counsel for defendants:

Q. I am putting it to you that, there is a sign board with the description “Pros-Engineering Workshop” on the land.

A. No. I am not aware of that.

Q. And I am putting it to you that, the owner of Pros Engineering Workshop is called Edwin Broni.

A. I do not know Broni.

Q. And I am putting it to you further that, this Edwin Broni has always claim that you put him on the land.

A. That is not correct, the one I asked to occupy or to operate from the land is called Prosper and not Broni.

Q. And it was this Broni who was sued by the defendant’s church in the Circuit Court.

A. I do not know Broni and I did not know he was attending court.

From the cross examination quoted supra, the plaintiff said he did not know Edwin Broni. In the face of this denial by the plaintiff, the defendants needed to show that the plaintiff was aware of the pendency of the Circuit Court litigation in order to succeed on their counterclaim, as a counterclaim is a separate claim in nature and needs to be proved. Again from the cross examination, the defendants alleged the said Edwin Broni claimed plaintiff put him on the disputed land. In the face of the objection raised by the plaintiff when the defendants were trying to register their title to the disputed land, the defendants should have joined the plaintiff to the Circuit Court case. Thirdly, throughout the trial the defendants maintained they wrote to Edwin Broni and copied same to the plaintiff of their intended action. Plaintiff denied receiving any such letter.

It was therefore incumbent on the defendants to tell the trial court the mode the letter was sent to the plaintiff, whether by postage, EMS or by Special Post. In the absence of this, the trial judge was right in coming to the conclusion that estoppel per res judicata would not apply in the instant case as the parties to the Circuit Court case are not the same. The evidence does not show that the plaintiff was aware of the Circuit Court case but stood by whilst the validity of his title was being fought. Lastly, the Abraham vs Akwei case cited supra apart from being a High Court case and therefore not binding this Court, the case is distinguishable from the case under consideration both on the facts and on the ratio.

Ground two of the appeal fails and it is hereby dismissed.

This brings us to ground 6 which deals with Fraud or mistake on the procurement of the Land Title Certificate by the 2^nd defendant.

On this ground, counsel for the defendants submitted that, Fraud is a crime and by section 13(1) of the Evidence Act 1975 (Act 323), its proof is beyond reasonable doubt. In that respect, an allegation of fraud will have to be investigated by the court properly and all persons involved given a chance to be heard before any pronouncement be given on it. In the instant case, the Land Title Registry was not in court to be heard on the issue of fraud. Secondly, the matter was properly investigated before the issuance of the Certificate. Consequently, there was not fraud.

Counsel for defendants cited the case of OKWEI MENSAH (PER ADUMOAH OKWEI) VS LARYEA (DECD) (Acting By) Asheteye Laryea & Another [2011] SCGLR 317 where their Lordships held that the allegation of fraud by litigants who fail to substantiate same is serious and such actions should be dismissed with heavy penalties. Counsel concluded on this ground that per Exhibit 2, the Surveyor’s investigation the plaintiff’s plot is distinct from 2^nd defendant’s plot. Therefore the trial court’s finding that there was mistake or fraud is baseless. He therefore invited us to allow the appeal on this ground as plaintiff was not able to prove fraud.

In response, counsel for the plaintiff argued that, prior to the issuance of the Land Title Certificate to the 2^nd defendant, the plaintiff was in possession of the disputed land since 1960 and the records of the Lands commission Search Report dated November 2001 is clear on this. In addition, the mechanic the plaintiff put on the land were still in possession. Thirdly, the 1^st defendant in his testimony admitted no official search was conducted by defendants to assure themselves of their grantors title before same was granted to them. This shows the lack of due diligence on the part of the defendants before the grant made in their favour.

Counsel cited the case of BROWN V QUARSHIGAH [2003/2004] SCGLR 930 and submitted that by the decision cited supra, where an application is made for the issuance of a Land Title Certificate and the said land affected is in actual physical possession, no certificate is to be issue. Counsel referred to section 122(1) of the Land Title Registration Law 1986 (PNDCL 152) and concluded that since the plaintiff was in possession of the disputed land before the grant made to the defendants, the further grant of the Land Title Certificate to the defendants was fraudulent. Consequently, the trial judge was right when she held that the Certificate was fraudulently obtained and ordered same to be cancelled.

Admittedly, the Land Title Registry allegedly investigated the matter and came to the conclusion that the objection of the plaintiff has no basis. The defendants did not have a hand in the said investigation and therefore the issue of fraud cannot be laid at their door step. However, we have demonstrated in grounds 1, 3, 4 and 5 that, as far back as 1960, the records of Lands Commission showed that the only transaction affecting the disputed land was the Conveyance from the King Tackie Tawiah Family to J. A. Quartey. The Search Report attached to the letter to plaintiff overruling his objection. We gave reasons why it cannot over ride Exhibit D. First it was signed by the Executive Secretary, Lands Commission, it was neatly typed and lastly, it was first in time as compared to the Search Report the Land Title Registry attached to the letter overruling plaintiff’s objection which was hand written, the designation of the author is not known.

In the face of all these anomalies, and the failure to call Lands Commission to clear or explain these anomalies, coupled with the fact that the plaintiff was in physical possession, the defendants were put under constructive and actual notice as to the rights, title and ownership of the disputed land by the plaintiff. Even if the defendants cannot be pinned down directly with fraud, there was obviously a mistake by the Land Title Registry in issuing the Land Title Certificate to the defendants. The effect of fraud and mistake on a transaction is the same and that it is a nullity. Consequently, the trial judge came to the right conclusion. There is no merit in this ground of appeal and same is hereby dismissed.

The last ground is in relation to the non-pleading of Limitation Under this ground, counsel for the defendant submitted that, the rule of law is that for any party to canvass limitation in litigation he should specifically plead it to allow the other party the chance to react to it. In the instant case, the plaintiff neither pleaded Limitation in his statement of claim or reply. Therefore the trial court had no jurisdiction to deal with Limitation when it has not been pleaded. He cited the cases of

Basil Vs. Kabbara & Anor. [1966] GLR 106

Dolphyne (No. 3) Vs. Speedline Stevedoring Co. Ltd. & Anor [1996-97] SCGLR 514, 515 and

Memuna Moudy & Ors. Vs. Antwi [2003-2004] SCGLR 967

in support of his contention.

Counsel concluded on this point that the trial Judge erred when she referred to limitation and based her judgment on it and invited us to allow the appeal on this ground.

In response to the submissions on Limitation, counsel for the plaintiff argued that, the principle of law is that a plea of limitation could be waived by a person entitled to rely on it or must be specifically pleaded or he must plead such facts as would evince an intention to rely on it. He continued that, a cursory look at the pleadings on record reveal facts that link up with a plea of limitation. The plaintiff has maintained that his late father had been in occupation of the disputed land since 1960 when same was conveyed to his father. When the property was devolved unto him, he has continued in occupation of the disputed land, have built on a portion and walled the whole land. Therefore, notwithstanding the non-pleading of limitation, the trial Judge cannot be faulted for relying on same.

In the judgment in contention before this court, the trial Judge made mention of the fact that the plaintiff has been in possession of the land for over forty (40) years. He therefore submitted that the defendants were aware of the plaintiff’s case hence their attack on the plaintiff’s root of title. He invited us to dismiss the appeal on this ground as there is no merit in in this ground also.

In this case, it is true, the plaintiff did not plead limitation but the entire case of the plaintiff revolves round the fact that he and his father have been in occupation and or possession of the disputed land since 1960, a period of over fifty (50) years. Clearly, the defendants cannot claim that they have been taken by surprise on the issue of limitation.

In any event, where a decision is right and the reasons given for it is wrong, it can be supported with the right reasons. See the case of Mensah Larkai Vs. Ayitey Tetteh (Sub. By) Tetteh Quarcoo; Mensah Larkai Vs. Tetteh Quarcoo & Ayaa Cudjoe (Consolidated) [2009] SCGLR 621. See also the case of Muriel Vaughan-Williams Vs. B. K. Oppong [2015] 84, GMJ 171, 177 where Her Ladyship Adinyira (Mrs.) (JSC) held that:

“We are of the view that this case can be decided on other grounds as indeed in this court no judgment is upset on the ground that its ratio is erroneous if there is another sound basis on which it can be supported.”

In this judgment, we have demonstrated that, all the other grounds of appeal have no merit. Therefore, the reliance on Limitation by the trial Judge when same had not been pleaded would not upset the judgment.

It is for these reasons that the appeal fails and same is hereby dismissed. The judgment of the High Court together with the consequential orders are hereby affirmed.