IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL
ACCRA - A.D 2018
EMMANUEL ABLADE GLOVER -(Plaintiff)
DEE AND 3 OTHERS - (Defendants)
DATE: 24 TH MAY, 2018
SUIT NO: H1/216/2018
JUDGES: SAMUEL MARFUL SAU (J.A) PRESIDING, AVRIL LOVELACE-JOHNSON (J.A), HENRY A. KWOFIE (J.A)
MR. R. O. SOLOMON FOR THE APPELLANT
MR. NATHANIEL MYERS FOR THE RESPONDENTS
AVRIL LOVELACE-JOHNSON JA:
The present appeal has been launched by the Plaintiff/Appellant against the judgment of the circuit court delivered on 30th January 2013 on the following grounds
1. The plaintiff’s claim having been founded on his Land Title Certificate (No. GA 3406) the learned trial judge failed to appreciate the force and effect of sections 18 (1) and 43 (1) of the Land Title Registration Law 1986, PNDCL 152 and hence misdirected himself on the applicable law.
2. Considering the admission by the Defendants that the land in dispute was originally owned by the Asere stool the learned trial judge erred in his finding that the co- defendant’s grantor E.C. Otoo was the owner at the time of his grant to Benjamin Komla Debrah in view of the evidence that E.C. Otoo acquired his land from a person other than the Asere Mantse as against the plaintiff who obtained his grant from the Asere Mantse.
3. The leaned trial judge failed to appreciate that E.C. Otoo having concurred in the grant of the land to the plaintiff by the Asere Mantse he E.C. Otoo had abandoned any claim he had to the land and/or alternatively, that he had acknowledged the title of the Asere stool and its right to grant the land to the plaintiff.
4. The learned trial judge failed to appreciate that Benjamin Komla Debrah’s document registered with Land Registry No. 27/1976 did not grant him title to the land and especially so when the evidence showed that his document had been deleted from the records of the Land Commission. The Learned trial judge consequently erred in relying on Debrah’s document as a basis of his title.
On the basis of these grounds, he seeks from this Court, an order setting aside the judgment on appeal and in its place asks that judgment be entered in his favour.
First, there is a need to make two preliminary comments. The practice has been for the courts to record cross examination in a question and answer format and to take the evidence in chief in free narrative style. This long established practice was not followed by the trial court and thus made the proceedings “clumsy and disjointed and impedes a fluent perusal of the evidence so led”. These were the words of the Supreme Court in the case of In re Agbenu(decd); Agbenu v Agbenu 2009 SCGLR 636 @641 when ordering a trial de novo partly for the reason that there was confusion in the recording of proceedings. That case was heard by the same trial judge who heard the present case on appeal. Lower courts are advised to maintain the established practice of recording proceedings.
The second comment is about the written submissions of counsel for the Respondents. They were not coherent to put it mildly and so did not help much with the determination of this appeal. There were sentences which did not make sense like
‘….and where by way of gift or other consideration when accepted by a proper transaction by court purchased of contempt judication takes precedence over all other grants’
Written submissions are a most important part of the appeal process and so the rules assign times for them to be filed. The law may indeed be in the bosom of the judge but Counsel does his client great disservice if he does not identify the applicable law and give his view of their application through a well argued and articulate written submissions. Now to the appeal proper.
From the pleadings, the Plaintiff/Appellant’s claim at the trial court was for an order of ejectment and recovery of possession. He based his claim on a 1972 conveyance from the Asere Stool which formed the basis of his Land Title Certificate. He said he put a caretaker on the land but upon the latter’s death, the defendants entered the land to ply their trades. He allowed them to do so till he ordered them to vacate the land by 28th January 1991 but they refused to do so.
The Defendant Respondents disputed this claim and contended that the land in dispute belonged to one Benjamin Debrah, the husband of the Co-Defendant who purchased it on 25th August 1975 from one E C Otoo. The record shows that he had conducted a search on 6th August 1976 and this had confirmed that the land was registered in the name of his vendor. He later registered his indenture at the Land Registry as No 27/1976. Thereafter he put the 1st Defendant on the land as caretaker with authority to put other tenants on the land. They pleaded that the Plaintiff’s title was obtained by fraud.
The parties will be referred to by their designations in the lower court hereon.
The first ground of appeal is that the trial judge misdirected himself on the applicable law. In other words, the Plaintiff having founded his claim on his Land Title Certificate, it is the provisions of the Land Title Registration Law 1986, PNDCL 152 which should have informed the judgment of the court. A study of the ten page judgment shows that the judge after summarizing the evidence proceeded to discuss the law at page 7 under the heading BY COURT. Not a single reference was made to the Plaintiff’s Land Title Certificate and PNDCL 152 was not discussed at all.
The second issue set down for determination at the Summons for Directions stage was
Whether the plaintiff has a Land Title Certificate ie No GA 3406 on the land and if he has whether he is not the owner of the land by virtue of the certificate
Clearly this issue called for a discussion of the indefeasibility of a Land Title Certificate obtained under PNDCL 152. The trial judge did not do this.
By virtue of the statutory power of rehearing under section 8(1) of the Court of Appeal Rules 1997, CI 19, this Court can put itself in the shoes of the trial court and after evaluating the evidence led make a determination on whether the failure of the trial court to consider and apply the provisions of the above mentioned law should affect the final decision of the said court in giving judgment for the Defendants.
Counsel for Plaintiff contends that by virtue of sections 18(1) and 43(1) of PNDCL 152, immediately Plaintiff was able to establish that his name had been entered on the land register under this law, his title was conclusively presumed and he acquired an indefeasible title. Counsel states that although subsections (2), (3) and (4) of section 43 put limitations on this position, the Plaintiff is not caught by them. Further, Counsel contends that the Defendants do not fall into the category of persons with overriding interests as stated in section 46.
What can be gleaned from the submissions of counsel for the Defendant on this issue appear in sum to be that Debrah’s grantor Otoo had a title document which was earlier in time to that of the Plaintiff. Both Otoo and Debrah had registered their documents at the Land Title Registry before Plaintiff attempted to register his. This gave them a prior interest in the land and the fact that their registration was expunged by the Lands Department, (an act it had no power to do, without giving Mr Otoo a hearing )was fraudulent and thus tainted the Land Title Certificate procured by the Plaintiff over the disputed land. It is contended that Otoo’s 1948 document is protected under section 130(2) of the Evidence Act as an ancient document. It is further contended that the Plaintiff did not disclose the presence of the Defendants on the land to the Land Registry.
From the cross examination of the Plaintiff he admits that Debrah’s title to the land was registered before his although he states that he had lodged his land document for registration in 1972 before travelling abroad. He stated that Debrah’s title was removed by the Lands Commission in 1974. The record shows at page 143 that Debrah got concurrence in 1975 and the directive to remove his title was made in 1977, the same year Plaintiff was given concurrence after the said removal. See pages 136 and 139 of the ROA.
It is clear from exhibits tendered and evidence led that the document of Debrah was registered at the Land Registry before that of the Plaintiff. Indeed exhibit 1, the search conducted by Debrah showed that the land in question had been transferred to his grantor, Otoo by deed of gift from T R Quartey on 24th July 1948. Section 25 of the Land Registry Act states as follows Registration to be actual notice
The registration of an instrument constitutes actual notice of the instrument and of the fact of registration to all persons and for all purposes, as from the date of registration unless otherwise provided in an enactment
Although registration of a title document does not per se establish validity of title, it does serve as notice of it. If the Plaintiff had conducted a search before his attempted purchase from Quaye in 1970 and later from the Asere Stool in 1972 as expected of a prudent purchaser he would have had notice of Otoo’s title to the disputed land. Having failed to do this, the above section imputes him with notice of the transaction between Quartey and Otoo. His failure to conduct any search was not prudent and he has to bear its consequences. See the case of Kusi & Kusi v Bonsu (2010) SCGLR 60 @ 88
Where the Supreme Court stated per Georgina Wood CJ as follows
“It is trite learning that any person desirous of acquiring property ought to properly investigate the root of title of his vendor”
Having done the prudent thing by conducting a search and being satisfied with Otoo’s title, Debrah purchased the disputed land and successfully had it registered. It was after this that the Plaintiff attempted to register his document and he was informed by letter dated 8th April 1976 that Debrah’s deed of conveyance had already received concurrence. Thereafter the contents of exhibit P ie the Lands Department File show that some investigations were done and sometime in early 1977, likely in April, Debrah’s document was ‘lapsed’ upon instruction. See pages 138 and 139 of the ROA. There is a notation that the ‘applicant’ (Debrah) was to be informed about this.
Act 122, the Land Registry Act 1962 makes provision in section 20 for the procedure to be followed when the Registrar is of the opinion that a document presented should not be registered. A hearing is conducted and a person dissatisfied with the Registrar’s refusal to register his document has a right of appeal to the High Court. Nowhere in the Act is it stated that the Registrar has the power to delete or lapse a document already registered without an order of court. The Administration of Land Act 1962 [under which the letter to Plaintiff was written to regarding the inability to grant him concurrence] also gives no such power to its Registrar. See the case of Republic v Lands Commission Ex parte Vanderpuye Orgle Estates Limited [1989-90] SCGLR 677 @ 690
Where Bamford-Addo JSC states in part as follows
“Refusal to grant concurrence when first applied for is not the same as withdrawing a prior given concurrence and expunging exhibit A from the records. In the case of a refusal, section 8(2) of Act 123 provides the procedure for an appeal to a tribunal, in the latter situation the law provides no remedy for such situations…..I am of the view that the commission had not been invested with power to withdraw concurrence once given properly, nor do they have judicial power to decide title in land matters. Withdrawal of a properly given prior concurrence resulting in the deprivation of good title to the Respondents, as contained in exhibit A, was a wrong which should be corrected by mandamus……For my part I see no power granted in Act 123 for the withdrawal of a concurrence once granted to validate a deed on land as to render that deed void…..Further it is only a court of justice, not an administrative body such as the appellant, which have the right and power to make a decision on land dispositions so as to deprive a bona fide purchaser of his title to land”
Consequently, the decision of the Lands Department deleting Debrah’s name from the Register was unlawful. It has been stated in the submissions of counsel for the Defendants that the registration in respect of the gift to Otoo was also deleted. If this is so then that act was also unlawful. No doubt it was these unlawful acts which paved the way for the Plaintiff’s document to be registered in its place, which document was the basis of his Land Title Certificate. The Defendants have pleaded fraud in relation to this document and state that the Plaintiff concealed material facts from the Land Registry including the situation on the land and he also deliberately did not disclose the presence of the Defendants on the land. The Plaintiff admitted that he did not inform the land Title Registry of the presence of the Defendants on the land because he assumed that because of a certain Ga proverb, first defendant accepted him as owner.
The plaintiff knew at all times that first Defendant was not, and had never claimed to be owner of the disputed land. His failure to give out the necessary information could only have been deliberate and a confidence arising from the fact that he had successfully but unlawfully had the document of Debrah deleted. Had he given out the information that the Defendants were on the land, that would certainly have factored in the processes leading to his acquisition of his Land Title Certificate. While Plaintiff’s complaint to the Lands department may not have been actuated by malice, his failure to inform the Land Title Registry of the presence of the Defendants on the land smacks of dishonesty and this further taints his already tainted Land Title Certificate. His reason for failing to make this disclosure is untenable and has also been denied by the first defendant. I am satisfied that the Land title Certificate upon which the Plaintiff based his claim was fraudulently obtained. That being so, the failure of the trial judge to apply the provisions of the Land Title Registration Law and ascribe indefeasibility to the certificate in question does not remove from his final decision giving the Defendants judgment. This ground of appeal succeeds in part.
The second ground of appeal faults the trial judge’s finding that the land in dispute belonged to to E C Otoo. It is not disputed that the land in dispute was Asere stool land and that Debrah was granted his land by E C Otoo who also got his grant from T R Quartey. If the last mentioned grant was valid, then nobody including the Asere Stool, the grantors of the Plaintiff could have transferred the same land to him. The Plaintiff, perhaps with great confidence in his land Title Certificate called no evidence on this issue in spite of paragraphs 4 of the statement of defence of the defendants which stated as follows
4. In further denial of paragraph 2 the defendants say that the land in dispute originally belonged to one E C Otoo (now deceased) who by an indenture dated 25th August 1975 sold the land to Benjamin Komlah Debrah the landlord of the Defendants and was registered at the Lands Registry as No 27/1976
Paragraph 3 of the Co-Defendant’s statement of defence essentially makes the same point. Plaintiff’s response to this in his amended Reply to the Co-Defendant’s counterclaim was as follows
2. Paragraph 3 of the co-defendants’ defence is denied. Assuming E C Otoo mentioned had any land with document registered as Land Registry No. 27/1076, which is not admitted, the Plaintiff says that the land is not identical with the land in issue herein
The evidence shows that the parties are ad idem that they are disputing over the same piece of land
Counsel for the Plaintiff contends that once it is accepted that the land in question was Asere land and it has been established that T R Quartey was not the Asere chief or was not authorized by the stool to give out the disputed land, then his grant to E C Otoo in 1948 could not have given the latter title to the land.
Did the evidence indeed establish that T R Quartey did not have the power to grant or give out Asere land at the time that he did? According to the Defendants who base their title on this transfer, Thomas Richard Quartey was the Aquashong Mantse and in the absence of a Chief such an official had power to execute documents. He stated that land was usually given out by the Representatives of the Chief or caretakers and documents executed by the Chief. It also emerged that E C Otoo was a stool father of the Asere Stool.
I find it most unlikely that a person who is so closely related to the stool will take a grant of land as far back as 1948 from an unauthorized official (Akwashon Mantse) of the Asere stool. After the defendants led evidence of their root of title, the Plaintiff took the position that this official had had no authority to grant the land in question to Otoo. He led no evidence in support of this position. On the other hand, the first defendant who is a brother to the Darkuman chief and a member of the Asere stool testified to the practice relating to the grant of land. No evidence of a contrary practice having been presented to the court, it constituted sufficient evidence of the said practice on a balance of probabilities.
Sections 11(4) and 14 of the Evidence Act impose a burden of proof on both the Plaintiff and Defendants regarding positions they take on a disputed issue.
The Defendants discharged the burden of proof imposed on them regarding this issue. This ground of appeal fails as being without merit. It is dismissed.
The third ground of appeal in effect is that having acted as a witness to the grant of the disputed land to the Plaintiff, Debrah’s grantor, E C Otoo had abandoned any claim to the land or acknowledged the title of the Asere Stool to the land and their right to grant same to the Plaintiff. In reaction to a proposition that Otoo had given Debrah a document on the same land in 1974, Plaintiff’s response was that, that could not be true otherwise Otoo would not have acted as a witness when he, Plaintiff’s document was being executed for him by the Asere Stool. He also stated that E C Otoo
“acknowledged before self, land people and Mr Debrah that the second document he gave to Mr Debrah was a mistake’.
See page 52 of the ROA. A look at the document of the Lands Department file at page 139 of the ROA states as follows
Investigations conducted between Mr. E A Glover and Mr. B K Otoo, the stool signatory certifies that he was the one who signed the document for both parties and that he was made to sign without seeing the land and that no remuneration was given to him
The site in question has not been developed by either of the parties
Mr. Glover is having two wooden structures on the land cared for by a caretaker
Mr. Otoo was indisposed when the investigations was conducted
It is not true then that Mr. Otoo said his grant to Debrah was a mistake. In any case he signed Plaintiff’s document as a witness. He was not the one transferring title to Plaintiff so in the light of his explanation that he signed without seeing the land in question, his signature on that document as a witness cannot be used to imply that he knew the land he gave to Debrah was not his. Contrary to what is stated in this ground of appeal, Otoo could not have abandoned his claim to the land because he had already divested his title in it when he made a transfer to Debrah. Neither he nor the Asere stool had any title in the land at the time he signed the Plaintiff’s document as a witness so he could not have acknowledged a non-existent title. What is not in existence cannot be transferred to anybody including the Plaintiff. Nemo dat quod non habet. This ground of appeal also fails and is dismissed.
It has been said that the first Defendant stated the Ga proverb “if your mother gets a husband then you have got a father” (this is denied), and that this amounts to a concession of the Plaintiff’s title. As stated earlier, the land in dispute does NOT belong to the first defendant but rather Debrah. The alleged concession does not carry much weight regardless of any contradictions in 1st Defendant’s evidence as to when, where and how many times he had met the Plaintiff before they met in court. After all as a tenant whoever is adjudged owner of the land in dispute becomes his new landowner and so his “father” within the context of the said Ga proverb.
Regarding the fourth ground of appeal that the trial judge erred in relying on Debrah’s document registered as No 27/1976 which had been deleted from the records of the Lands Commission, I have already found that the Lands Department had no power to delete Otoo’s and Debrah’s documents which had been registered before Plaintiff’s and which, as stated above properly transferred title in the land from Otoo to Debrah. The trial judge was therefore right in granting the Defendants judgment on the basis of Debrah’s document even though he made no finding on its deletion or lapsing and the consequent granting of concurrence to the Plaintiff’s document instead.
In conclusion, notwithstanding the partial success of the first ground of appeal, the present appeal is dismissed in its entirety. The justice of this case calls for an order cancelling the Land Title Certificate of the Plaintiff since it is tainted by fraud and the restoration of the registration of the documents of Otoo and Debrah to the Land Register under Act 122. Such an order is supported by the evidence led.
It is hereby ordered that the Land Title Certificate of the Plaintiff be cancelled and the registration of the transactions between Quartey and Otoo in 1948 and that between Otoo and Debrah in 1975 be restored to the Register. Costs of GH¢2,000.00 in favour of the Respondents.