WELBOURNE (MRS), J.A.

This is an appeal against the judgment of the High court dated 9th May 2014.

The brief facts are that on 7^th February, 2003, the Plaintiff/Appellant issued a Writ of Summons against the Defendant/Respondent in the High Court Accra, claiming ownership or title to a piece or parcel of land described as No.5 Block 7, Section 002, situate at Dzorwulu, Accra among other reliefs.

During the pendency of the action, i.e. on 5^th July, 2004, the said Emmanuel Addo died. Dela Addo who claimed to be the eldest child of the late Emmanuel Addo applied to be substituted for the late Emmanuel Addo.

It was the Plaintiff’s case that his father the original Plaintiff acquired the land from George Francis Lomotey in 1966. Indeed in the description of the land being claimed by the Plaintiff among the boundary areas thereof, the Plaintiff categorically mentioned the Defendant on the side where the disputed land shares boundary with the Defendant’s land, it was stated that on the south by the property of Defendant herein measuring a distance of 85 feet more or less.

The Defendant entered appearance and filed a Defence and counter-claimed for the following reliefs:

a. An order of the court declaring as null and void ab initio the Land title Certificate No. GA 17799 in favour of the Plaintiff.

b. Any further orders as the Honourable Court would deem fit.

After the trial, judgment was entered in favour of the Defendant in the following terms:

“Judgment is entered in favour of the Defendant accordingly Exhibit E, the Land Title Certificate Number GA 17799 is hereby declared invalid and same is cancelled by an Order of this court. Defendant is awarded cost of GH¢8,000.00.”

Dissatisfied with said judgment, the Plaintiff/Appellant has filed this appeal with the following grounds:

The judgment is against the weight of evidence.

The learned trial High Court Judge erred when he construed statutory provisions, specifically, the Survey Act 1962 (Act 127) and The Land Title Registration Law, 1986 (PNDCL 152) to occasion injustice to the Plaintiff/Appellant despite the existence of overwhelming evidence on record to the contrary.

The learned High Court Judge erred by failing to take into consideration to position of the law that the Defendant/Respondent has a burden to discharge in proof of his counterclaim.

The learned High Court Judge erred when he declared Plaintiff/Appellant’s Land Title Certificate No. GA 17799 an invalid and consequently cancelling same.

The learned High Court Judge erred by misconstruing the legal effect of Exhibit ‘C’, a letter from the Defendant/Respondent ‘s former solicitor expressing interest in buying the land in dispute from the Plaintiff/Appellant.

The learned High Court Judge erred when he held that Exhibit ‘C’ was written without express instructions from the Defendant/Respondent.

Additional grounds of appeal may be filed upon receipt of a copy of the Record of Appeal.

There being no additional grounds filed at the time of the hearing of the appeal, we will proceed to consider the grounds as filed.

In this Ruling, the Plaintiff will be hereafter described as the Appellant and the Defendant as Respondent.

In arguing the appeal, Counsel for the Appellant argued ground 2 to 6 of the grounds of appeal.

In respect of ground two, Counsel submitted that the learned trial Judge erred when he construed statutory provision, specifically the Survey Act, (Act 127) and the Land Title Registry Law, 1986, (PNDCL 152) to occasion injustice to the Appellant despite overwhelming evidence on record.

Counsel argued that statutes and laws must be construed purposively to assist in the dispensation of justice but not to occasion injustice. Counsel cited the cases of Network Computer Systems Ltd. vrs.

Intelsat Global Sales and Marketing Ltd. [2012] 1SCGLR 218 at 231.

Counsel also cited Civil Motion No. J5/4/2014, Republic vrs High Court (Land Division) Ex-parte

Lands Commission, Nungua Stool and ors where it was held inter alia that:

“But it is clear that the learned Judge outlines in detail the qualifications or exceptions to the general legal proposition that Courts must not gloss over statutory violations. The long list of provisos which includes rightly in my view, the general omnibus proviso “some other compelling reason”, covers instances where the; “strict enforcement of the statute would amount to a fraudulent or inequitable use of the statute or for some other compelling reason…”

In counsel’s opinion, the ‘complaint’ that there was no Site Plan Attached to Exhibit ‘D’ and that the Composite Plan attached to Exhibit ‘D’ is not signed by a Licensed Surveyor or in accordance with Section 6 of the Act 127 is a complaint best described as fastidious stiffness and that the breach of Section 6 of Act 127 can be regarded as subsidiary and therefore should not be allowed to prejudice the whole of Exhibit ‘D’.

Counsel urged the court to consider that in determining the four corners of land, it is the description of the land as contained in the Indenture that matters most and not the Site Plan.

Counsel further argued that a Cadastral Plan is not a sine qua non for one to prove his ownership of a piece of land as according to him the identity of a piece or parcel of land is traceable to the Land Title Certificate.

Counsel relied on the case of Seidu Mohammed vrs Saan Baye Kangberee [2012] SCGLR 1182 at 1185 Supreme Court on the issue of presumption of regularity as per the dicta of H/L Justice Dotse JSC as follows:

“There is a presumption of regularity in law which had been given statutory recognition in section 37 of the Evidence Act, 1975 (Act 323), providing that: “it is presumed that an official duty has been regularly performed”. That meant that institutions of state like the Lands Commission, Survey Department and the Land Title Registry were presumed to conduct their affairs with a fair degree of regularity in line with the statutes that had established them. Thus unless there was strong evidence to the contrary, such a presumption would be upheld.”

Counsel submitted that on the authority quoted above, “there being no challenge to the authenticity of Exhibit ‘E’ save the absence of a Cadastral Plan, Exhibit ‘E’ must be presumed to have been regularly issued when there was strong evidence to the contrary”.

Counsel cited several cases on the need for adducing evidence such that on the preponderance of probabilities, the existence of the facts upon which the Plaintiff’s claim is premised is more probable than its non-existence.

In short, the Appellant’s counsel submitted that the court below erred gravely in entering judgment in favour of Respondent.

Counsel for the Respondent countered the above submissions by stating the various requirements of the parties as far as the Evidence Act was concerned, particularly, sections 11, 12 and 14 of the said Act. He cited several authorities on this point.

On the 16^th day of May, 2012, the following questions were asked during cross examination of the

Appellant which can be found at pages 135 to 136 of the Record of Appeal:

Q. Do you recall telling the court in your evidence in chief on 22^nd day of February, 2012 that Defendant has his own land?

A. Yes.

Q. Are you in anyway claiming what you say belongs to the Defendant as part of your late father’s land?

A. No.

Q. Can you tell this court whether or not Defendant has built anything or structure on his land?

A. Yes. He has built a house on the land.

Q. You will agree with me that Defendant and his family live in the house he has built?

A. Yes.

Q. Can you tell the court when Defendant put up his house.

A. No.

Q. Can you tell the court the land you are claiming form the Defendant.

A. I know the land is next to the land on which the Defendant has put up his house.

From the above discourse, the Appellant admitted that the Respondent acquired his land, has built on it and lives there. It is not in controversy that the Respondent acquired his land from George Frances Lomotey, this is corroborated by Exhibit 3, a conveyance between George Francis Lomotey and the

Defendant dated 5^th July, 1976. Unlike Exhibit ‘D’, Exhibit ‘3’ had attached to it a Site Plan duly signed by a Licensed Surveyor.

In the case of IN RE ASERE STOOL; NIKOI OLAI AMONTIA IV (substituted by TAFO AMON II) v AKOTIA OWORSIKA III (substituted by) LARYEA AYIKU III [2005-2006] SCGLR pages 637 to 659, the court at holding 2 held as follows:

“Where an adversary has admitted a fact advantageous to the cause of a party, the party does not need any better evidence to establish that fact than by relying on such admission, which is an example of estoppel by conduct. It is a rule whereby a party is precluded from denying the existence of some state of facts which he had formerly asserted. That type of proof is a salutary rule of evidence based on common sense and expediency…”.

In both his pleadings as well as his evidence and cross examination, the Appellant admitted that the Respondent had his own land, had built on it and lived there. On the 22^nd day of February, 2012 when the Appellant testified through his Attorney he was asked the following questions:

Q. Do you know the Defendant?

A. Yes.

Q. How do you know him?

A. Defendant trespassed on my father’s land. He has his own land which I have documents showing that he acquired in 1976. He acquired his land from one George Lomotey. I also have documents that show that Francis Lomotey died in 1975. It was from this land that he trespassed onto the land in dispute.

On whether or not the Respondent had proved his counter claim; one notes that he asked for these two reliefs namely:

An order of the court declaring as null and void ab initio the Land Title Certificate No. GA 17799 in favour of the Plaintiff.

Any further orders as the Honourable Court would deem fit.

The Respondent on 4^th December, 2012 testified by his Attorney who narrated how the Respondent came by his land, the root of title to the land, mentioned his neighbours and tendered documents in proof of title (see pages 145-177 of the Record of Appeal).

The Respondent’s Attorney was duly cross examined. The former lawyer of Respondent was also called to testify on his behalf as DW1.

In the judgment of` the learned trial Judge he summed up the Respondent’s evidence in the following words:

“As observed, Plaintiff admitted that the Defendant acquired his land, has built on it and lives there. It is not in controversy that the Defendant acquired his land from George Francis Lomotey. This is corroborated by Exhibit 3, a conveyance between George Francis Lomotey and he Defendant dated 5^th July, 1976. Unlike Exhibit ‘D’, Exhibit ‘3’ had attached to it a site Plan duly signed by a licensed Surveyor”

It is our opinion that indeed from the record before us the Respondent discharged the burden imposed by law to prove his counter claim.

Ground 1: The judgment is against the weight of evidence

When an Appellant complains that the judgment is against the weight of evidence, he is implying that there are pieces of evidence on record which if applied properly or correctly could have changed the decision in his favour or that certain pieces of evidence have been wrongly applied against him – see Akufo Addo v Catheline [1992] 1 GLR 377 and Aryeh & Akakpo vrs Ayaa Iddrisu [2010] SCGLR 891.

Rule 8(1) of the Court of Appeal Rules, 1997, CI 19 provides that:

“An appeal to the Court shall be by way of rehearing and shall be brought by a notice of appeal.”

By the above rule, this court has the duty to review the record of appeal and draw its own conclusions from the facts on the record.

The question is, was the Appellant able to lead evidence sufficiently to support his claim in accordance with the Evidence Decree? The Appellant in support of its claim to title to the disputed land tendered Exhibit ‘D’ and E, the indenture and land Title certificate respectively. The Appellant was seeking a declaration of title to the parcel of described land as Plot no 5 Block 7, section 002. This document had no Site Plan attached. The Land Title document, Exhibit ‘E’ also is without a Site Plan, though it had indicated on it that the subject matter is indicated and delineated and shown and edged pink colour on Plan No. 173/2001.

The record as stated does not disclose this. As rightly observed by the trial judge, there is neither such site plan nor a signed cadastral plan. A close scrutiny of these exhibits also do not show that they were duly certified by a licensed surveyor in compliance with section 6 of the Survey Act, Act 127. One can infer that Exhibit ‘E’ is referable to Exhibit ‘D’ which was made in 1966, which document without been unduly repetitive, was also bereft of a site plan. Therefore the learned trial judge was right in declaring that Exhibit E should not have been registered under PNDCL152. Section 15 of the said Act reads as follows:

“Where land being registered is evidenced by an instrument, then that land or an interest therein shall not be registered under this law unless there is attached thereto a plan of the land which has been approved and duly signed by the Director of Surveys or an officer of the Survey Department authorized by him.”

Clearly then, the Appellant failed to establish his claim to the disputed plot and therefore there is no reason to disturb the learned trial judge’s finding on that score.

The case of Nortey v African Institute of Journalism and Communication & ors [2014] 77 GMJI or [2013-2014] SCGLR 703 at 707 (Holding 4) where it was held that LI 1444 the Surveyor (supervision and approval of plans) regulation 1989 makes it mandatory for plans of any parcel of land attached to any instrument to be approved by the Director of Survey or any official Surveyor authorised by him.

On grounds 5 and 6 I find that the Exhibit ‘C’ complained of by the Appellant was a letter from the Respondent’s lawyer on the subject matter of the land in dispute. His plaint is that the Judge ruled that Exhibit ‘C’ was written without the express instructions of the Respondent.

Having perused Exhibit ‘C’ (found at page 227 of the Record of Appeal), it confirms that the Respondent was in Netherlands at the time Exhibit ‘C’ was written, and that the Appellant wanted to sell the land.

It also shows that the Respondent was interested in the proposition because he had already erected a structure on it. However, I would not go so far as to say that the lawyer had not received express instructions from the Respondent.

Counsel referred the court to a plethora of cases on the issue of parties being presumed to be bound by the facts in a document. He referred the court to Sections 25 and 26 of the Evidence Act, NRCD 323 which reads as follows:

Section 25

“Except as otherwise provided by law, including a rule of equity, the facts recited in a written document are conclusively presumed to be true as between the parties to the instrument, or their successors in interest.

Section 26

“Except as otherwise provided by law, including a rule of equity, when a party has, by his own statement, act or omission, intentionally and deliberately caused or permitted another person to believe a thing to be true and act upon such belief, the truth of that thing shall be conclusively presumed against that party or his successors in interest in any proceedings between that party or his successor in interest and such relying person or his successor in interest”

However, there is not an iota of evidence indicating that there was a contract between the parties in terms of the contents of Exhibit ‘C’. Thus Exhibit ‘C’ cannot in all fairness be said to be of any legal effect or capable of enforcement. Therefore sections 25 and 26 of the Evidence Act (supra) are not applicable in this instance. The “Judgment” or ruling of the Land Title Adjudicating Committee did not declare title in favour of the Appellant. From the Record of Appeal, Exhibit ‘E’ was not in existence at the time of the sittings of the Land title Adjudicating Committee.

At best the Ruling of the said Committee permitted the registration of title in the land despite the questionable status of Exhibit ‘D’ – the Indenture of the Appellant.

Thus, all told, the learned trial Judge cannot be faulted in his conclusions on that score. The issue of capacity

The original Plaintiff was Emmanuel Addo who commenced the suit on 7^th February, 2003. However, on 5^th July, 2004, the said Emmanuel Addo died, but since the cause of action survived him, Dela Addo who claimed to be the eldest child of the late Emmanuel Addo applied to be substituted for the late Emmanuel Addo. The said Dela Addo attached the said Letters of Administration to the application for substitution as Exhibit ‘DA 1’. The court duly granted the order by which Dela Addo was substituted for the late Emmanuel Addo, the original Plaintiff herein.

Counsel for the Respondent submitted that the original Plaintiff on his demise could only be substituted by his personal representative. He contended that since Dela Addo did not tender any Letters of Administration and Vesting Assent he could not qualify to represent the original Plaintiff and therefore lacked capacity.

The case of Conney v Bentum Williams [1984-86] 2 GLR 301 CA where the Court of Appeal explained that a beneficiary of an Estate must be vested with the estate by Vesting Assent before he could convey the property.

Before the passage of the Administration of Estates Act, 1961, (Act 63) Sections (1) (20 (1) and 96(1) the position of the law was different and that devisee could dispose and convey an estate obtained from a Will without a Vesting Assent.

The case of Okyere (deceased) v Appenteng and Adoma [2012] 1SCGLR 65, affirmed the decision in the Conney’s case (supra).

It seems to me however that the learned trial judge was inadvertently swayed by the obiter dicta of the eminent jurist H/L Brobbey JSC on this issue – particularly where the learned Judge seemed to be lamenting on the situation that would arise if; the law is that a beneficiary or devisee has no title to sue or be sued until the grant to him of a Vesting Assent what does he do in any of the situations postulated above? At equity, such a person should be able to mount an action to protect the estate or save it from being dissipated or wasted. The Plaintiff in such an action will be acting on the basis of his expectant interest in the estate, not in his capacity as a title holder under a will or grant at customary law or statute law? (Per Brobbey JSC).

Thus the learned trial judge took the view that: “with this pragmatic exposition of the application of the law, I take the view that Dela Addo’s substitution in the circumstances of this case cannot be faulted more so when it is on record that he is the eldest son of the late Emmanuel Addo and therefore a potential beneficiary of this very land in dispute in which it can be said that he has a “expectant interest”.

In my respectful opinion, the learned judge missed the point. The decision of the Supreme Court was that it was incumbent upon a person who could be described as a personal representative to obtain a Vesting Assent before he could deal with the Estate of the deceased. H/L Justice Date Bah JSC at page 75 of the Okyere case (supra) stated thus:

“It is clear from this passage from Abban JA’s judgment in Conney v Bentum-Williams [1984-86] 2 GLR 301 at 314-316 that the statement of law by the Court of Appeal (per Ansah JA), relying on Elliot v King [1966 GLR 654 (supra), was per incuriam and should be overruled. A devisee cannot sue or be sued in relation to the devised property before a vesting assent has been executed in his or her favour. Accordingly, in the absence of a vesting assent executed in favour of the second Defendant, she could neither sue or be sued on her devise. The Plaintiff’s complaint on this score is justified and has to be upheld.

What then is the impact of this point of law on the success of the appeal? It means, first, that the court of appeal’s affirmation of the learned trial judge’s dismissal of the action of the Plaintiff is upheld. The first ground of appeal is dismissed, since there is even more reason to affirm the dismissal of the action against the second Defendant since, as explained above, she lacked the capacity to be sued in relation to her devises, not having been a beneficiary of a vesting assent. It must also mean that the second Defendant counterclaim against the Plaintiff is dismissed. She had no locus standi to bring it”.

Indeed, the learned Justice Brobbey JSC concurred in the Okyere case as follows:

“The import of the judgment in this case: when a person dies testate or intestate, his estate devolves on the executor or personal representative respectively until a Vesting Assent has been executed to the beneficiaries or devisees and until the grant to them of the Vesting Assent, the beneficiaries and devises have no title or locus standi over any portion of the estate”.

From the above thus the learned trial judge failed to realize that in fact, Brobbey JSC actually approved the position of the law that there was the need for beneficiaries securing a vesting assent, otherwise they would not have any title or locus standi over any portion of the estates. Therefore the Appellant was not clothed with the requisite capacity to prosecute this action. But even if she was clothed with capacity, she woefully failed to prove her title to the land in issue. In view of the foregoing reasons, the appeal fails and is dismissed in its entirety. The judgment of the High court dated 9^th May 2014 is hereby affirmed.

Cost of GH¢3,000.00 in favour of the Respondent.