IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL
KOFORIDUA - A.D 2016
ALBERT LUMOR SALLAH - (Plaintiff/Appellant)
MARGARET SERWAH - (Defendant/Respondent)
DATE: 8TH JUNE 2016
CIVIL APPEAL NO: H1/23/2014
JUDGES: DENNIS DOMINIC ADJEI J.A. (PRESIDING), CECILIA H. SOWAH J.A., L. L. MENSAH J.A.
SIR S. ASANTE-ANSONG FOR PLAINTIFF/APPELLANT
STEPHEN ASANTE-BEKOE FOR DEFENDANT/APPELLANT
L. L. MENSAH, J.A.
This is an appeal by the Plaintiff/Appellant who will be described hereafter as the Plaintiff against the judgment of the High Court, Koforidua dated the 17th day of January 2014 in favour of the Defendant/Respondent who will be described hereafter as the Defendant.
On the 7th of December, 2005, the Plaintiff instituted an action against the Defendant claiming the following reliefs:
1. A declaration of his title and ownership of ALL THAT PIECE OR PARCEL OF LAND known as Plot No. 14 and containing an approximate area of 0.29 of an acre situate and lying and being at Section 3A Block “C”, Koforidua in the New Juabeng District in the Eastern Region of the Republic of Ghana and bounded on the North-West by Koforidua to Huhunya motor road and measuring on that side a distance of 95 feet more or less; on the North-East by Plot No. 15 and measuring on that side a distance of 125 feet more or less; on the South-East by an unnamed road and measuring on that side a distance of 95 feet more or less and on the South-West by Plot No. 13 measuring on that side a distance of 145 feet more or less.
2. An order of the court to compel the Defendant to remove, pull down or take away every structure she has unlawfully constructed on a portion of Plaintiff’s land.
3. Or in the alternative pay compensation at the sum of ₵5,000.00 for the area of the Plaintiff’s land she trespassed on by the Defendant to the Plaintiff.
4. Perpetual injunction to restrain the Defendant, her agents, workmen and all persons claiming by interest through the Defendant from entering on the undeveloped portion of the Plaintiff’s land.
The Defendant upon receipt of the Plaintiff’s writ filed a stiff statement of defence. At the end of the trial at the court below, Plaintiff’s action was dismissed, whereupon the Plaintiff launched this appeal to vindicate his ownership of the disputed land.
The Defendant filed one ground of appeal and an additional ground. These are:
(1) That the judgement is against the weight of evidence. The additional ground is:
(2) That the learned trial judge erred by relying exclusively on the evidence of the surveyor (CW1) that there were two layouts on the site plans attached to the leases of both the Appellant and the Respondent and that occasioned miscarriage of justice.
The facts on which rests this appeal from each of the parties’ perspective are as follows:- The Plaintiff acquired a leasehold interest of a plot of land known as Plot No. 14 Section 3A Block C, Koforidua on 28th March, 1989 from the Lands Commission. The document on the land was duly registered and tendered Exhibit A. He took possession of the land, walled a portion thereof and completed the construction of a house on the fenced portion of the land in about 1990.
The further evidence of Plaintiff is that since he was living outside Koforidua, he was not always present. The Defendant and her late husband in his absence built on a portion of his land and completed the building thereon. He however drew the attention of the Defendant’s husband about his trespassory acts. The Defendant’s husband assured him that he would see to it that the matter was resolved. The matter was however not resolved before the Defendant’s husband died.
Plaintiff said the Defendant was claiming a portion of the land he granted to one Aboagye PW1 as her own and this is what ignited the flames of the litigation between them.
The evidence of PW1 Patrick Kofi Aboagye aforementioned is in the main in support of the Plaintiff that the Defendant trespassed on to the land of the Plaintiff.
The Defendant who resisted the claim of the Plaintiff, in her evidence testified that she got to know the Plaintiff at the time her deceased husband came to purchase the land. After the purchase, they put up a house on their plot where she currently lives. At the time their house was being built no one challenged her husband and they have been peacefully staying in the house for about 18 years.
Defendant said the trouble with Plaintiff arose when she Defendant gave a portion of her land to the PW1 Patrick Kofi Aboagye when he came with his parents to plead with her for a piece of her land.
Defendant said after the lease of the Lands Commission was granted the same was duly registered in the name of her son Samuel Dankwa and Sisters as the lessees.
It is pertinent to mention that the court below appointed a surveyor CW1 whose evidence and CE “1” he tendered was decisive in determining the ownership of the disputed land.
In arguing the appeal the learned Plaintiff’s counsel submitted the two grounds together, the first of which is, as aforementioned, that the judgement is against the weight of evidence. The second ground is that the learned trial judge erred in relying exclusively on the evidence of the surveyor CW1 that there were two layouts on the site plans attached to the leases of both the Appellant and the Respondent and that occasioned miscarriage of justice.
The learned Plaintiff’s counsel submitted that the Lands Commission substantially granted the same parcel of land to the two parties. Both parties at separate time registered their parcel of the land. That both parties were allocated Plot No. 14 at Section 3 Block C, Koforidua.
Plaintiff’s counsel contended that contrary to the finding of the trial judge, the error on the ground of the disputed land cannot be as a result of the existence of two layouts or two planning designs. He said “Plans for Physical Developments”, used to be made by the Town and Country Planning Department under sections 2 and 9 of CAP 84 of 1947. And that the Physical Planning Law, has now been re-enacted in sections 46 to 68 of the Local Government Act 1993 (Act 462).
Counsel said as a corollary from the foregoing facts, the Lands Commission and its division which is responsible for granting leases and other interests invested lands and occurences to stool lands transaction, has no power or authority in the preparation or review of any planning scheme, design or layouts.
Counsel submitted that under section 11 of the National Building Regulations 1996 (LI 1630), the building in the districts are controlled by a qualified building inspectors.
Counsel’s further submission is that with stool lands vested in the President under section (1) of the Stool Lands Act 1960 Act 27, the stool lands within Koforidua, a portion of which is the disputed land, by section 15 of the Administration of the Lands Act 1963 (Act 123) layouts of such lands must be kept by the Minister.
Counsel contended that section 1 of the Stool Lands Act of 1960 was re-enacted with identical words in section 7(1) of the Administration of Lands Act of 1963. That in the instant case, “ there was absolutely nothing on the site plans, Lands Department (“LD”), Plans to remotely show that there existed two layouts on the same pieces or parcels of land”.
Counsel argues that despite this state of the law, the trial court was able to find and hold that there are two separate layouts in the area which confusion has resulted in both parties building on plots of land not granted to them.
In reaction to the above submission in which the learned Plaintiff’s counsel made copious reference to the Town and Country Planning Ordinance, 1945 (Cap 84), the Local Government Act, the National Building Regulations, the Lands Act and Stool Lands Act, and quoted some of the sections, the Defendant counsel dismissed same as irrelevant. He submitted that during the trial, the issue of Building Inspector or the appointment of one did not arise.
Counsel contended that it was rather a qualified surveyor who was appointed at the instance of both parties and he presented a composite plan, CE “1”as well as his report and evidence in court.
I entirely agree with the learned Defendant’s counsel that the issues raised in this case have nothing to do with Town and Country Planning, National Building Regulations, Stool Lands Act, the Lands Act etc etc. Indeed same did not form part of the issues which were determined at the trial court for Plaintiff’s counsel to raise them at the Court of Appeal and even then, with respect in an incoherent way.
The issues that were set down for trial and which was the road map which guided the trial court to come to his decision were:
1. Whether or not the Plaintiff is entitled to his claim.
2. Whether or not the Defendant was granted her land in the year 2002.
3. Whether or not the Defendant has trespassed onto the Plaintiff’s land.
Indeed if the learned trial judge had veered into the path of the submission of the Plaintiff’s counsel to determine the role of the building inspector that did not form part of the record or the relevance of the Local Government Act, etc. he would have been indicted for treading the path of the Dam vs. Addo principle.
This is why Plaintiff’s counsel’s further and persistent reference to “planning designs or schemes or layouts as a solemn and very elaborate exercise” are off the mark. While saying this, I must quickly admit that if the Lands Commission had liased with other bodies like Town and Country Planning Department, the problem of the confused layout and the allocation of the same plot to two different persons might not have arisen in the documentation.
It is however to be mentioned that by CE “1”, tendered by the CW1 though the parties’ land documents bear the same plot number and section, they are on two distinct lands on the ground.
Now coming to the meat of this appeal, Plaintiff’s counsel submitted that the trial judge was wrong in relying on the surveyor’s evidence to determine the case. He contended that the gravemen of the problem in this case is the Lands Commission allocating the same area of land to the Appellant and Respondent as aforementioned.
That since the Lands Commission has already allocated the disputed land to the Plaintiff in 1989, it had no land to later allocate to the Defendant in 2002. Counsel confirms his submission with the Supreme Court case of Christiana Edith Agyarkwa Aboa vs. Keelson Rtd And Okyeame Yima and 1 Other vs. Keelson; Civil Appeal No. 14/1120 dated 16th March 2011, which counsel submitted “is apposite for the resolution of the quandary”.
I partially agree with the Plaintiff’s counsel that the main problem engendered in this case was the Lands Commission granting through its faulty documentation, one and the same plot to two different people at different times. However I disagree that the nemo dat quod non habet rule is applicable to this case which he confirmed with the aforementioned consolidated Supreme Court case of Christiana Edith Agyarkwa Aboa vs. Keelson Rtd And Okyeame Yima and 1 Other vs. Keelson (supra).
In that case, Dotse JSC has this to say:
A very significant point is that, the portions of land in dispute, and indeed covered in this exhibit one (1) had long been divested by the Akim Abuakwa and Begoro Stools. There was therefore no interest or title left in those particular parcels of land for the chief of Begoro, Nana Antwi Awuah III to be conveying to W.D. Ghartey and Co., on the plan as at 6th February, 1967. What should be noted is that the land had already been conveyed to Kwabena Agyakwa & Co., and the two stools had confirmed the conveyance by their support of Kwabena Agyakwa’s title to the parcels of land in both exhibits B & C. It therefore follows that Nana Antwi III did not have any title in the purported conveyance he seemed to be conveying to W.D. Ghartey & Co. The principle of nemo dat quod non habet will therefore apply in this case to further discredit and support the reason why the court rejected Exhibit 1.
Again Plaintiff’s counsel, still on the nemo dat quo non habet principle referred to the case of Numo Adjei Kwanko II vs. Lebanon Society & 2 Others (1914) 70 GMJ CA at pate 132. In that case, Dzamefe JA has this to say:
... apart from the fact that the land does not belong to the 1st Defendant’s grantor, the Nungua Stool, and for that matter they could not grant to Moufid El-Adai a lease. Moufid himself had nothing to grant to 1st Defendant, a simple case of NEMO DAT QUOD NON HABET.
The principle of nemo dat quod non habet has featured in several cases. These include Tetteh & Another vs. Hayford (substituted by Larbi & Decker (2012) 1 SCGLR 417; Wordie vs. Awudu Bukari (1976) 2 GLR 371 at 381, Sasu v. Amua-Sekyi (1987-88) 2 GLR 221, and Seidu Mohammed vs. Saanbaye Kangberee (2012) 2 SCGLR 1182 and several others.
However, as the learned trial judge in this instant case rightly held, it would not be in the interest of justice if the nemo dat rule is applied. As far as the documentation is concerned, once the Lands Commission granted the disputed land to Plaintiff in 1989 and he registered same, it had no land to grant to the Defendant who also had her parcel registered at the same Registry in 2002. However although from Exhibit “A” the Plaintiff was granted an area of 0.29 acres, in the survey plan “CE1” the land Plaintiff was claiming was a whooping 0.64 acres, that is more than twice the size of the land granted to him by the Lands Commission. What is more, both parties have developed their respective lands outside the area allocated to them by the Lands Commission. What this means is that the Defendant is not practically on the plot granted to Plaintiff.
In his written submission, the Plaintiff’s counsel picked quarrel with the trial judge for relying exclusively on the survey plan to come to his decision. However from the record of appeal the oral evidence of the Plaintiff lacks credibility and sincerity. I say so because in his statement of claim the Plaintiff never averred that he confronted the Defendant’s husband on the land, and he responded amicably at the time he was putting up his building on the land. Plaintiff successfully smuggled this very material evidence which he never pleaded without objection from Defendant’s counsel. What the record of appeal shows is that the Plaintiff never raised a finger when the Defendant and her husband developed their plot and lived thereon for several years without any challenge, as she averred in paragraph 5 of her statement of defence. I am aware that an appellate court should be slow in disturbing the facts as found by a trial court. But in this instant case, there are several pieces of evidence which was over looked by the learned trial judge. And since an appeal is by way of re-hearing, this court has to scrutinise the record.
It is also not true when the Plaintiff said he was not permanently resident in Koforidua and it was during his two to three months absence that the Defendant trespassed on the land. It is surprising why both in his statement of claim and reply Plaintiff never mentioned that he was away from the jurisdiction, when Defendant unlawfully entered his plot and put up the house except in his evidence.
Still on the issue of the purported trespassory acts in paragraph 9 of the statement of claim
The Plaintiff avers that he has recently discovered that the Defendant had built on a portion of his land when a surveyor was called to ascertain on the ground the actual area of land granted him (my emphasis).
The question is how recent is the “recently” that was averred in paragraph 9 of the Plaintiff’s statement of claim?
From the above, if one wants to go by the nemo dat quod non habet rule, the Defendant would not have trespassed onto a portion of the Plaintiff’s land, but the whole land. What this means is that though Exhibit “A” confirms that the disputed land was first leased to the Plaintiff in 1989, the reality on the ground says otherwise. If the learned trial judge had, with due deference, adverted his mind to this aspect of the evidence of Plaintiff that it lacks credibility, he would have enriched the judgement the more.
Again the learned trial judge should also have upheld the plea of estoppel against the Plaintiff who sat by to allow the Defendant to purportedly trespass onto his land. A crucial aspect of the evidence is that both parties built on two different plots of land granted them. This is confirmed by CE1.
Besides, no reasonable man would fence his plot of land and leave another chunk unfenced. Saying that he fenced a portion of the land allocated to him so as to drive away thieves from stealing his properties is incredible and an afterthought that the trial court ought to have seen through and pronounced thereon.
Coming to the evidence of the CW1 the surveyor Nii Quarshie Quartey and his CE1 the composite plan, it is clear that the building of each party is situate quiet wide apart from each other. What is more although on their respective land documents i.e. indentures the parties were granted 0.29 and 0.31 respectively for the Plaintiff and Defendants, the Plaintiff’s land on “CE1” is as large as 0.63 acres. This is 0.34 acres larger than on his site plan.
In his address as aforementioned, the learned Plaintiff’s counsel rejected the judgement because “the witness here a surveyor who is not a professional Physical Planner pressed in cross-examination seeking a way out of his difficulty to the court that he saw two layout on an ordinary Land Development Site Plan”.
Unfortunately the Plaintiff’s counsel must take the CW1 surveyor as he found him because like all expert evidence, he made the best of the reality on the ground. But counsel with due deference, in his written submission quoted with relish the area of the CW1’s evidence which is favourable to the Plaintiff, but rejected the areas he considered not favourable to him.
As the learned trial judge in his judgement rightly finds at page 75 of the record of appeal: “Indeed the evidence of the CW1 shows that only one-fifth (1/5) that is 20% of Plaintiff’s building falls within the area allocated to him by the Lands Commission per the lease Exhibit “A”. The remaining four-fifth (4/5) that is eighty percent (80%) of the Plaintiff’s building fall outside the area allocated to him by the Lands Commission. Again the evidence of the Regional Surveyor CW1 shows that the Plaintiff on the ground is claiming an area of 0.63 acre which is 0.34 acre bigger than the land actually allocated to him by the Lands Commission which is 0.29 acres. Indeed the evidence shows that on the ground the Plaintiff is claiming the plot of land more than twice of land that was allocated to him by the Lands Commission. The evidence of the CW1 and the composite plan CE1 further shows that in the case of the Defendant, whereas she was per her husband’s site plan allocated an area containing an approximate area of 0.31 acre, ... on the ground Defendant is claiming 0.10 acre bigger than what was actually allocated to him by the Lands Commission”.
The above finding of the learned trial judge is confirmed by the Plaintiff’s own document Exhibit “A” and that of the surveyor.
From the further evidence of the CW1, as aforementioned it is clear that despite the fact that on the indenture of Plaintiff and Defendant they were granted the same Plot No. 14 section 3A Bloc “C”, Koforidua, and the Defendant document also bears the same plot number, sector and block, on the ground, the Defendant has not trespassed onto the land of the Plaintiff. Indeed, since the Plaintiff in his writ of summons stated that the parcel of land granted him was 0.29 acres as per Exhibit “A”, he has no business to say that his land is 0.34 over the above the 0.29 acres on his indenture Exhibit “A” and his writ of summons. This is the reason why, as aforestated, the principle of nemo dat quod non habet cannot operate in favour of the Plaintiff. This is because the two parties are on two separate and distinct plots of land, albeit with a small overlap. The nemo dat quod non habet operates, when and only when, an owner of land who has already divested his title in a parcel of land to a party earlier in time, reconveys the very same land to another party. I have cited several cases above in support of this scenario. In this instant case, the Defendant, being on a separate and distinct land from that of the Plaintiff, the rule will not apply.
The only blunder as aforementioned which was caused by the Land Commission in this instant case is the christening of two different lands at adjacent locations with the same name, location and sector. This is why the Christiana Edith Agyarkwa Aboa case (supra) and Numo Adjei Kwanko II vs. Lebanon Society & Others (supra) referred to by Plaintiff’s counsel have no place in this case.
The question that the learned trial judge was tasked to answer in the judgement was whether or not the Plaintiff was able to lead the requisite evidence to prove his title to the land he claims Defendant has trespassed on. In our opinion, the trial judge has rightly come to the right decision that the Plaintiff failed in the task. This is because the Plaintiff failed to properly identify the land he claims Defendant has trespassed thereon.
As Dotse JSC held in the case of Tetteh & Another vs. Hayford (substituted by Larbi vs. Decker (2012)
1 SCGLR 417 in holding 3:
In an action for declaration of title to land, it is the Plaintiff who bears the burden of establishing the identity of the land he is laying claim to. Failure to prove this identity is fatal to a claim for declaration of tile. The overwhelming evidence on record both oral and documentary is that the land in respect of which the Plaintiff sued, is outside the disputed area. That being the case since the initial allocation of the burden of proof is on the Plaintiff before it would shift to the Defendant later, it is apparent that the Plaintiff has failed to discharge this burden. See sections 10 and 14 of the Evidence Act, 1975 (Act 33).
The same scenario in the Tetteh vs. Hayford (supra) plays in this instant case. It is not enough for the Plaintiff to claim that the Defendant has entered his land. As a non-counterclaiming Defendant, the onus remains on the Plaintiff to lead the requisite evidence. Instead of leading compelling evidence to build up his own case, the Plaintiff’s counsel, with respect, was shopping for weaknesses in the Defendant’s case to prop up his own weak case. Plaintiff ought to have first built up enough evidential credit for himself before pushing the onus onto Defendant. This, we think the Plaintiff has failed to do.
I am aware that even though the courts had held that the identity of a disputed land be clearly established or with certainty as a precondition for the grant of title, that did not mean mathematical certainty or exactness as held in the case of Nortey (No. 2) African Institute of Journalism and Communications & Others (No. 2) (2013-2014) 1 SCGLR 703 holding 3 per Akamba JSC.
In the instant case the Plaintiff’s evidence from the record is far short of credible proof. His only witness the PW1 Patrick Kofi Aboagye gave a self-serving evidence without any credit-worthiness as it melted under the heat of cross-examination. The evidence of the PW1 therefore hardly added any value to the case of the Plaintiff.
That the Plaintiff’s case is full of evidential instability, hesitation and confusion in his answers show in the following recap of part of the cross-examination on pages 37-39 of the record of appeal by the Defendant’s counsel:
Q. Mr. Sallah you had just told this court that whiles you were putting up your building you once came and saw the Defendant and her husband had completed their building on a portion of your land, not so?
A. Yes my Lord, that was what I said.
Q. So as at the year 1989, the Defendant has put up the building.
A. My Lord in the year 1989 there was no building in that area. I was the only person who had built that house.
Q. Are you telling this court that by the year 1989 you had put up that building?
A. Yes, my Lord.
Q. To the best of your knowledge when did the Defendant put up her building.
A. My Lord the Defendant built her house around the year 2000.
Q. Are you telling this court that it was after eleven clear years that you have put up the building that Defendant put up her building.
A. My Lord the Defendant put up her building in the year 1991.
Q. Are you saying that the Defendant started her building in the year 1991 and not the year 2000 again.
A. Yes, my Lord it was in the year 1991 and not in the year 2000.
The fact that Plaintiff is fumbling with the answer as to when the Defendant put up her house shows how the Plaintiff’s case is full of instability conflicts and contradictions that materially show that his case is not true.
Back to the failure of the Plaintiff to positively identify his plot, same again exposed by the following cross-examination.
Q. So you are claiming your portion of the land right from where you occupy now through to the road.
A. That is true my Lord.
Q. Can you identify your plot number on Exhibit “A”, the site plan attached.
A. My plot number is Plot number 14.
Q. By the demarcations in the site plan, Plot number 14 is just one plot, not so.
A. Yes, my Lord it is so .....
Q. How many plots of land did you construct your plot (sic) on.
A. My Lord I built my house on only one plot.
Q. What was the size of that one plot that was given you.
A. My Lord it is 195 on the right side, 165 on the left side by 95.
Q. Mr. Sallah, going by the site plan in Exhibit “A” given you by the Lands Commission, your land, Plot number 14 measured 125 on one side, 145 on another side and 95 on two other side. I am putting that to you; it is on your site plan.
A. My Lord I agree to that figure on the site plan (my emphasis).
From the above admission that the size of his plot is actually what is on Exhibit “A” the site plan, the Plaintiff saying above that his plot is “195 on the right side, 165 on the left by 95”, exposes him by his failure to properly identify his plot. Such a Plaintiff cannot be entitled to his claim. The authorities are legion.
Where in a declaration of title to land as the Plaintiff in this instant case, is holding an officially executed site plan with indenture Exhibit “A”, which delineates the precise size of his plot of land, he cannot go outside the frame of that land to claim more than the size on that site plan. Unfortunately, that is what the Plaintiff had done in this case which the law does not permit. As aforementioned, the CE1 prepared by the surveyor shows that Plaintiff is claiming over twice the land in Exhibit “A” his legal document as aforementioned. This he cannot be granted because the court has no jurisdiction to grant what he does not have.
From such cases as Gawu III & Anor. Vs. Ponuku (1960) GLR 101; Kwabena v. Atuahene (1981) GLR 136; Anane v. Donkor & (1965) and hosts of other cases make it clear that failure to identify the boundaries of area of land claimed by a Plaintiff is fatal to his action. Unfortunately, the Plaintiff in this instant case falls into the category of those Plaintiffs who failed to positively identify the area of the land claimed. It is in the light of the foregoing that we cannot disturb the findings of the trial court. In the result this appeal ought to suffer dismissal and same is hereby dismissed.
L. L. MENSAH
JUSTICE OF APPEAL
DENNIS DOMINIC ADJEI, J.A. I agree.
DENNIS D. ADJEI
JUSTICE OF APPEAL
CECILIA H. SOWAH, J.A. I also agree.
CECILIA H. SOWAH
JUSTICE OF APPEAL