DZAMEFE, JA

The plaintiff/respondent referred to as the plaintiff issued this writ against the defendant/appellant for the following reliefs: -

Declaration of title to all that piece or parcel of land described in schedule.

Recovery of possession of any portion of the said land trespassed unto by 3^rd and an order to remove any offending structure placed on any portion of said land to defendants.

Declaration that the transaction between plaintiff and 1^st and 2^nd defendants is valid and must not be tempered with.

Perpetual injunction restraining the defendants, their agents, assigns and workmen from ever dealing or in any manner interfering with plaintiff developments of the said land.

Or in alternative

That 1^st and 2^nd defendants pay to plaintiff the refund of cost of the land and the cost of putting up the fence wall and the building and all other expense as stated in paragraph 10 of the statement of claim.

The plaintiff in her statement of claim aver she is a business woman, 1^st defendant a trader, 2^nd defendant a Stool Elder of the Aplaku Stool and 3^rd defendant a registered company in Ghana dealing in real Estate Development.

According to the plaintiff, in 2004 1^st defendant informed her of some plots of land for sale at Aplaku. She showed interest and after all negotiations paid the 1^st defendant. She was given a site plan by 1^st defendant and 2^nd defendant. She conducted a search which showed that the land was not encumbered. 2^nd defendant who is a nephew to the 1^st defendant encouraged and assured the plaintiff that the land was vacant and was granted the 1^st defendant by the Stool in 1980. The plaintiff paid for the land, fenced it and built a chamber and hall on it.

In all the plaintiff paid Gh¢9400 for 6 plots and spent Gh¢17,103 on construction of fence wall and the Chamber and Hall. She also spent Gh¢500 on pillars she erected and Gh¢1548.80 on other expenses to put up the said fence wall and the Chamber and Hall. Plaintiff was issued a receipt on the 6 plots of land purchased and an indenture to evidence the said transaction which was signed by 2^nd defendant and his elders on 17^th January, 2005.

Plaintiff averred further that the 3^rd defendant is claiming he was granted the same land on 7^th July 2005 by the same 2^nd defendant and his elders. That she had an earlier grant prior to 3^rd defendant but the later is harassing her injustly. Though she reported the 3^rd defendants conduct to the 1^st and 2^nd defendants they left her to fate to deal with 3^rd defendant hence this suit.

The 3^rd defendant in their defence avered the plaintiffs claim is totally misconceived and an abuse of the court process. That in 2007 they purchased a parcel of land at Aplaku from the 2^nd defendant and the elders of Aplaku for estate development and they were given an indenture on the grant. That while preparing the land in readiness for development found the plaintiff erecting a chamber and hall on portion of the land.

The 3^rd defendants aver that the plaintiff with her lawyer approached them and pleaded be given her six plots but they refused. The Managing Director for the 3^rd defendant said the best they could do for her was to allow her keep the site for her on-going chamber and hall project on one plot of 100 x 70ft. This offer the plaintiff accepted according to them she was asked to pay GH¢2,000 to 3^rd defendant to cover expenses for the preparation of the site plan for her. That in the presence of her lawyer plaintiff made a part payment of Gh¢500 with a promise to pay the balance later.

The plaintiff never returned but rather to instituted this action against them.

The 1^st and 2^nd defendants in their defence admit paragraph plaintiff’s averment that in 2004 1^st defendant informed plaintiff that she had land for sale at Aplaku. They also admitted paragraph 7,8 and 9, that they assured and encouraged plaintiff to buy the land which she did and fenced the said land and built a chamber and hall on same.

They also admit paragraph 11,12, and 13 to the effect that plaintiff paid for 6 plots and was given a receipt and indenture to evidence the transaction and was signed by 2^nd defendant and his elders. That the plaintiffs document was signed on 17^th January 2005.

The 1^st and 2^nd defendants denied the 3^rd defendants claim that they granted the same land to him on 7^th July 2005 by the 2^nd defendant and his elders – [paragraph 14].

In further denial the 1^st and 2^nd defendant said he and his elders granted another portion of land to the 3^rd defendant. The 2^nd defendant further avered that the 3^rd defendant failed to use their appointed surveyor to demarcate the land sold to him but rather used his own surveyor who demarcated his land to include the plaintiffs land.

The 2^nd defendant averred further that he and his elders inadvertently signed the 3^rd defendant’s documents when same was presented to them. When they noticed the anomaly he 2^nd defendant wrote an undertaking dated 17^th April 2007 to the elders of the Aplaku Stool to have it rectified. He said the Aplaku Stool Elders also wrote an undertaking dated 20^th April 2007 to the 3^rd defendant to have the anomaly rectified. Till date however the 3^rd defendant has not rectified the anomaly.

Judgment

The trial judge in her judgment found that the plaintiff had a prior grant to that of the 3^rd defendant. Coupled with that as between the two parties it was the plaintiff who produced a witness from the grantors’ family to corroborate her case. The court also found that the evidence of the 3^rd defendant’s representative about the discrepancies between their indenture and the site plan confirms the plaintiffs case that the 3^rd defendant encroached onto her land.

The court said after a careful study of the totality of the evidence adduced and submission by counsel for the plaintiff and the 3^rd defendant, she is persuaded by the evidence led on behalf of the plaintiff.

The court said “An evaluation of the evidence adduced indicates that the plaintiff has discharged the burden of proof on her as required by Section 11(1) and (4) of the Evidence Act 1975 (NRCD 323). The plaintiffs action succeeds and judgment is entered for the plaintiff against the defendants herein for all the four reliefs sought. There is no need to determine the alternative relief sought in view of the judgment granted” – [page 123 ROA].

The 3^rd defendant dissatisfied with this judgment filed this instant appeal on the following grounds:

The learned judge erred in concluding that the plaintiff obtained her grant on 17^th January 2005 prior to the grant to the grant to the 3^rd defendant whereas in her indenture the land being granted to her was described as being more particularly delineated on a plan attached to the indenture signed by the surveyor on 15/07/2005.

The learned judge was wrong in making reference to the averments contained in the pleadings of the 1^st and 2^nd defendants and used them as part of the plaintiff’s case against the 3^rd defendant when those pleadings were not exchanged between them and the 3^rd defendant and the 1^st and 2^nd defendant did not give evidence at the trial to support the averments.

The learned judge was wrong in failing to make adverse comment on the fact that the 1^st and 2^nd defendants did not come to court to corroborate the plaintiffs case as far as it was based on what transpired between her and them.

Relief Sought

That the appeal be allowed and the judgment of the court below set aside for judgment to be given for the 3^rd defendant/appellant dismissing the plaintiff’s action with costs against her.

Ground 1

That the learned trial judge erred in concluding that the plaintiff obtained her grant on 17^th January, 2005 prior to the grant to 3^rd defendant.

From the evidence on record the trial judge on the issue delivered herself thus:

“Plaintiffs document was signed on the 17^th January 2005 whilst that of the 3^rd defendant was dated 7^th July 2005, the plaintiff therefore has a prior grant to that of the 3^rd defendant”.

Exhibit B, the plaintiffs’ indenture was made on the 17^th of January 2005 between the plaintiff and Nii Tetteh Nartey Aplaku Wulomo and lawful representative of the Aplaku Stool of Accra. The site plan attached to the exhibit was signed by the Greater Accra Regional surveyor on the 15^th of July, 2005.

The 3^rd defendants indenture with same grantor was signed on the 7^th of July 2005.

Counsel for the appellant in submission argued that the glaring discrepancy between 17^th January

2005 as the date on which exhibit ‘B’ was signed and 15^th July 2005 as the date on which the plan attached thereto was signed by the Regional surveyor called for explanation before it could be said

Exhibit ‘B’ was indeed executed prior to 7^th July 2005 when 3^rd defendant’s indenture was executed.

It is unfortunate that the 1^st and 2^nd defendants even though entered appearance and filed their defence decided not to testify in the trial. If they did would have easily resolved this issue since they were in a better position to explain the discrepancy.

There is no doubt from any quarter that plaintiff did purchase land from the 1^st and 2^nd defendants. There is also no controversy about the identity and location of the land the subject matter but just about the date the site plan was signed by the Greater Accra Regional Surveyor. It is also a fact that the plaintiff never prepared any document on the land for herself. There vendor or grantors 1^st and 2^nd defendants prepared all documents on the land for her. We do not think it is her duty to explain that discrepancy between the dates on the indenture and site plan. We don’t think we can hold her responsible for that. Even PW1 the secretary to the Stool could not explain the discrepancy so why do we hold plaintiff for it. We think she is an innocent purchaser for value who bought and paid for the land and was issued receipts and the necessary documents covering the land. She is a purchaser in good faith for valuable consideration. The question that comes to mind is what the site plan is and its purpose in transactions such as the instant issue before us.

In the lay man’s language, the site plan is a survey sketch or map drawn by the surveyor, based on his points of demarcation, to show the exact location of a piece of land, the size and all dimensions as well as its relation to other fixtures nearby or adjoining.

It is the physical description of the property, stating its character, where it is situated and its dimensions. The purpose of the site plan in short is to show the exact location of the property, its size, extent and all the fixtures attached.

The site plan therefore has nothing to do with title nor ownership of the property in issue. A mistake in the site plan can always be remedied. It has nothing to do with title to the property. A wrong location of property by a survey map does not affect the ownership of the property. It can always be rectified. The value in producing site plans in conveyances is to introduce some degree of accuracy and certainty in identifying the land, the subject matter of the conveyance. In this case before us the site plan did perform that duty. It conformed to the description provided in the parcel’s clause. What went wrong with it was to introduce a date not consistent with that on the conveyance itself.

The Land Registry Act, 1962, Act 122

Section 4 states:

An instrument shall not be registered unless it contains

a. a description which, in the opinion of the registrar, is sufficient to enable the location and boundaries of the land to which it relates to be identified or

b. a sufficient reference to the date and particulars of registration of an instrument affecting the same land and already registered.

A description may be made by reference to a plan.

Section 16 states:

where a map or land is comprised in or annexed to an instrument a true copy of the map or plan must accompany the instrument when brought for registration and shall be filled in the register.

These two sections are the closest reference to site plans in the Act. The legal authorities do not insist on the production and annexation of a site plan to give validity to any conveyance. It is only needed for registration purposes.

Just as in any ordinary contract the intention of the parties can be inferred from the agreement itself.

The parties could still validly transfer the land in dispute even without a site plan.

Section 4(2) of the Conveyancing Act, 1973 states:

An adequate plan of the land to which the transfer relates shall, if available, be incorporated in the record referred to in subsection (1).

This section also buttresses the fact that the site plan is never a sine qua non to transfer of land.

In the instant appeal, the fact that the plaintiff’s site plan was signed on a different date from the date of the grant does not affect title to the property.

Assuming the grantors could not even explain the cause of the discrepancy does not deprive them of their title to the property and right to transfer same to anyone. We do not think that discrepancy in dates has occasioned my miscarriage of justice since it can always be rectified. That cannot deprive the plaintiff of the land she bought and paid for.

The 3^rd defendant alleged fraud. Unfortunately, he failed to plead same. The law is settled fraud must be pleaded and the particulars of the fraud distinctly stated in the pleadings by the one alleging same as 3^rd defendant in this appeal.

Documents were exchanged before the commencement of the trial and if the 3^rd defendant noticed fraud must have pleaded same. It is not permissible to infer fraud from general situations or facts. –

High Court Accra Ex Parte Aryeetey [2003/4] SC GLR 398.

At common law, a charge of fraud could be taken to be properly made against a party who knowingly or recklessly whether by conduct or words used unfair, wrongful or unlawful means to obtain a material advantage to the detriment of another party – SA Turqui & Bros vrs Dahabieh [1987-8]2 GLR 486.

This is not the case in the instant appeal.  There is no evidence on record the plaintiff did any of the things listed above against the 3^rd defendant. The allegation of fraud cannot stand. That ground of appeal lacks merit and must fail and same is hereby dismissed.

Ground II

The learned judge was wrong in making reference to the averments contained in the pleading of the 1^st and 2^nd defendant and used them as part of the plaintiff’s case against the 3^rd defendant when those pleadings were not exchanged between them and the 3^rd defendant and the 1^st and 2^nd defendant did not give evidence at the trial to support the averments.

Counsel failed to make any submission on this ground of appeal.

The trial judge in her judgment never considered the defence of the 1^st and 2^nd defendant in arriving at her decision. She said “the 1^st and 2^nd defendants’ case as per their pleadings is that they prepared the plaintiff’s indenture and the 2^nd defendant and the elders granted another portion of the land to the 3^rd defendant. According to the 2^nd defendant after the said grant was made the 3^rd defendant did not use the surveyors appointed by the Aplaku stool to demarcate the land but appointed his own surveyors who demarcated the land to include plaintiffs’ land. The 2^nd defendant averred that he and the elders of the Aplaku stool inadvertently signed the said documents when same was presented by the 3^rd defendant because they did not detect the anomaly. The 2^nd defendant stated that when the anomaly was detected he wrote an undertaking dated 17^th April 2007 to the elders of the Aplaku stool to have the anomaly rectified. The 2^nd defendant said the Aplaku stool elders also wrote an undertaking dated 20^th April 2007 to the 3^rd defendant to have the anomaly rectified but till date the 3^rd defendant has not rectified the said anomaly.

The Judge went on to say “the 1^st and 2^nd defendants did not testify in court nor called any witnesses” – page 121 ROA. Those were the only times the trial judge made any reference to the 1^st and 2^nd defendants. She just reproduced the averment made by the 1^st and 2^nd defendant in their statement of defence and no further. These averments are part of their pleadings.

It is trite learning that, pleadings by a party that never had the chance of going through the rigorous test of cross examination cannot be relied on as the true state of affairs. The trial judge was right in not referring to their pleading in reasoning to her findings and decision. She never used nor relied on any of their averment to arrive at her decision.

The pleadings of the 1^st 2^nd defendant from part of the record of proceedings in the trial except it cannot be relied on since the other parties had no opportunity to test same under cross examination.

In the instant case though 1^st and 2^nd defendants entered appearance, there was no cause of action against them so they rightly exercised their right not to testify.

If a party in the case felt the 1^st and 2^nd defendant’s pleadings will affect their case in one way or the other, had the opportunity to call them to come testify by subpoena as witnesses. We say so since they cannot be compelled to testify as parties in the case. They can however be subponed as witnesses in the case.

Counsel would have been right if the trial judge had relied on those averments for her decision but which she did not do. We therefore do not think the trial judge erred in referring to the defence of the 1^st and 2^nd Defendant in arriving at her decision. This ground of appeal lacks merit and same must fail, and it is hereby dismissed.

Ground III

The learned judge was wrong in failing to make adverse comment on the fact that the 1^st and 2^nd defendant did not come to court to corroborate the plaintiffs’ case as far as it was based on what transpired between her and them.

We beg to differ from counsel’s view about this ground of appeal. The judge is not under any obligation to do what counsel is suggesting. It is discretionary. The trial judge may choose to comment on the inability of 1^st and 2^nd defendant not coming to testify but never obligatory.

In any case the law is well settled that corroboration is only vital if required by law. See Section 7 of NRCD 323. Corroboration is not a general requirement of law in the absence of which the decision of the trial tribunal of fact will usually be reversed. (1) Rep vrs Munkaila [1996/7] SC GLR 445. Section 7 (3) of Evidence Decree NRCD 323.

Evidence could come from one witness or several witnesses. It is an issue of credibility. Once the evidence of the single witness is credible it is enough. Evidence is not about quantity but quality. See Akrofi vrs Oteng & Or [1989/90] 2 GLR 2444.

Proof was no more than credible evidence of a fact in issue. It did not matter that the evidence as given by one or several witnesses, the important thing was the quality of the evidence.

It is pertinent to note that counsel for the appellant’s submissions covered only one out of three grounds of appeal filed by him.

It is trite learning that in such circumstances the Court of Appeal assumes counsel has abandoned those other ground left out. The inference is that he has admitted that there was significant evidence on record to justify the conclusion and inference drawn by the trial judge – See Bonney vrs Bonney [1992/3] GBR 779 at 786 SC per Aikins JSC.

The law is also settled that the plaintiff in civil cases is required to produce sufficient evidence to make out his claim on a preponderance of probabilities as defined in Section 12(2) of the Evidence Decree 1975 (NRCD) 323. In assessing the balance of probabilities all the evidence, be it that of the plaintiff or the defendant must be considered and the party in whose favour the balance tilts is the person whose case is the most probable of the rival versions and is deserving of a favourable verdict.

Takoradi Flour Mills vrs Samir Fairs [2005/6] SCGLR 882.

On the totality of the evidence before us, we do not find any merit in this appeal. It is therefore dismissed in its entirety.

SGD

SENYO DZAMEFE,

(JUSTICE OF APPEAL)

SGD

OFOE, JA.                     I agree                                V. D. OFOE,

(JUSTICE OF APPEAL)

SGD

AGYEMANG, JA       I also agree                       MABEL AGYEMANG, (MRS.)

(JUSTICE OF APPEAL)