IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL
ACCRA - A.D 2018
EUGENIA AKWETTEH - (Plaintiff/Respondent)
KOFI BAAH AND OTHERS. - (Defendants)
DATE: 31 ST JULY, 2018
CIVIL APPEAL NO: H1/80/2014
JUDGES: C. J. HONYENUGA JA (PRESIDING), AVRIL LOVELACE-JOHNSON JA, S. G. SUURBAAREH JA
FELIX NANA OSEI FOR RESPONDENT
ASSAD GBADEGBE WITH MOTHER TERESA BREW FOR APPELLANTS
On the 31st day of July 2012, the High Court, Fast Track Division, entered judgment for the plaintiff upon his claim and dismissed the counter claim of the defendants and the co-defendants.
Dissatisfied with the decision of the High Court, the defendants/appellants and the 1st and 2nd co-defendants/appellants at page 403 of the record of appeal filed an appeal to this court based on the following grounds:-
“(a) The judgment is against the weight of evidence adduced at the trial.
(b) The court erred when it disregarded the fact that the plaintiff’s title to the disputed land lapsed in 2005 at the instance of the Lands Commission.
(c) The judge’s failure to let the parties furnish the court with the respective addresses amounted to a grave miscarriage of justice.
(d) Additional ground of appeal will be filed upon receipt of copies of the judgment and record of proceedings”.
Another notice of appeal was filed by the appellants on page 405-406 of the record of appeal but learned counsel for the appellants abandoned same without any reference to same in his submissions.
However, on the 22nd April, 2014, the appellants filed additional grounds of appeal thus:-
“That the learned trial judge erred when he held that the judgment tendered in evidence by the appellants cannot be relied upon as creating estoppel per rem judicatam whether in respect of issue, subject matter or parties against the respondent.
The learned trial judge erred by not using an empirical means to ascertain the true description of the land in dispute but only used the names of the land as a description”.
Before dealing with the written submissions as filed in support and against this appeal I will give a brief background leading to this case. The plaintiff/respondent would be simply referred to as the plaintiff, the defendants/appellants as the defendant and the 1st and 2nd co-defendants/appellants as the 1st and 2nd co-defendants.
The plaintiff claimed ownership to the disputed land by virtue of a devise made to her and other siblings as beneficiaries of their late father’s Estate who died testate.
The beneficiaries obtained Vesting Assent over the properties devised to them by their late father Felix Joshua Brenya who acquired the land in 1959 through various leases and subsequent outright purchase. The plaintiff’s father established various businesses on the land including Ghana Egg Farm Limited and Ghana Poultry Feed Mills which became popularly known as MUUS at Ofankor. After the demise of the plaintiff’s father and subsequent collapse of the businesses, the plaintiff and her family leased out portions of the land to the defendants and others to retail timber on the land. The Timber market was made operational by virtue of various tenancy agreements executed with tenancy agreements executed with the defendants herein. When the defendants were invited to renew their tenancy agreements in 2005, they sort to challenge her title to the land, and the plaintiff had no alternative than to sue out the two writ of summons which were subsequently consolidated, claiming various reliefs.
In 2006, the plaintiff commenced an action against Kofi Baah and 67 Others, defendants which bore Suit No. AC 60/2006 claiming as follows:-
“a. An order of ejection from and recovery of possession of plaintiff’s land popularly known as MUUS at South Ofankor on the Accra-Nsawam Road and bounded on the North by the property of her sister, Madam Jessie Adu Kissiw, on the South by the property of the Borkor family, on the West by the property of the Gbese Stool and on the East by the Accra-Nsawam Road.
b. ¢462,425,310.00 being arrears of rent.
c. Mesue profits
d. Perpetual injunction restraining the defendants from interfering with the plaintiff’s ownership of the said land”.
Furthermore, on the 30th January 2006, the plaintiffs issued another writ of summons against Ben Amoako & 11 Others and 67 other defendants before the Fast Track High Court which bore Suit No. AL 177/07 claiming the following reliefs:-
“i. Declaration of title and recovery of possession of all that pieces or parcels of land particularly described in paragraphs 2, 3, 4 of the statement of claim.
ii. Recovery of the cost of the building being put up on the property by member of the family which has been demolish by the defendants and their sub-tenants.
iii. Punitive and compensative general damages for trespass and induced and unwarranted litigation.
iv. Perpetual injunction.
By an order of the trial court dated 5th February, 2007, the Jonafoaco Limited and Onamrokor Adain Family were joined to the Suit No. AL 177/2007 as 1st and 2nd co-defendants respectively.
In the accompanying statement of claim in Suit No. AC/60/2006, the plaintiff averred that she is the owner of all that parcel of land situate at South-Ofankor on the Accra-Nsawam Road popularly known as MUUS Timber Market and bounded on the North by the property of her sister, Gloria Jessie Adu Kissi, on the south by the property of Borkor family on the West by the property of Gbese stool and on the East by the Accra-Nsawam Road. The plaintiff further averred that the defendants are all her tenants who had yearly tenancy agreements individually with the plaintiff and paid rent to her from January 2004 to December 2004. The plaintiff stated that since January 2005, the defendant have refused or failed to pay rents to the plaintiff and yet remain in occupation and enjoyment of their various allotments. The plaintiff further stated that the defendants are timber merchants who sold their timber under stalls on plaintiff’s land but have refused to pay rent which they jointly owe totaling ¢462,425,310.00.
The 1st defendant had been a tenant of the plaintiff since 2001 and paid rent up to December 2004 and therefore owe rent arrears of ¢35,200.00. Finally, the plaintiff pleaded that all the defendants were tenants who until December 2004 have refused to pay rent to the plaintiff. The defendants in Suit No. AC/60/206 filed a statement of defence and denied that they are tenants of the plaintiff and averred that the plaintiff’s title is defective and was lapsed by the Lands Commission pursuant to the Supreme Court’s judgment in Civil Appeal No. 36/61. The defendants further averred that they have current tenancy agreement with JONAFOACO LIMITED which obtained the land from the Onamrokor Adain family. The defendants insist that the real defendants in the matter are JONAFOACO LIMITED and Onamrokor Adain family.
The defendants pleaded that the plaintiff’s action is incompetent as being res judicata for all the issues raised in the plaintiff’s case had been effectually and conclusively adjudicated upon by the Supreme Court between the defendants’ predecessor-in-title and the grantors of the plaintiff’s father in Civil Appeal No. 36/61 titled Dr. C. E. Reindorf for Nii Ankrama Nukpa & Anor. Vrs Amadu Braimah & Anor. The defendants further pleaded that in the Court of Appeal judgment in Felix Kortei Robertson v Dr. Charles Reindorf (Head of Onamrokor family) in Civil Appeal No. 3/66 an estoppel was created against the plaintiff and by these judgments of the Superior Courts, the lands affected by the judgment were lapsed by the Lands Commission and this lands include the predecessor of plaintiff’s father’s title.
The defendants contended that the plaintiff is estopped from re-litigating the same issues by the said judgments of the Superior Courts. The defendants counter-claimed as follows:-
“(a) A declaration that all the issues raised in the plaintiff’s case about declaration of title and other reliefs following therefrom – have been fully, effectually and conclusively adjudicated upon by the Supreme Court in previous litigation between the 2nd defendant and the grantors of the plaintiffs’ father (through whom they trace their title).
(b) Declaration that the plaintiff is not the rightful owner of the land described in paragraph 1 of the statement of claim.
(c) A perpetual injunction to restrain the plaintiff, her servants, agents, workmen, assigns and privies from holding themselves out as owners, custodians or persons duly authorized to grant, convey or dispose of the said lands or negotiate for the release of any portions of the said lands and the possession and enjoyment of the land in dispute and in any manner whatsoever from harassing the defendants or their agents and servants or assigns”.
After their joinder, the 1st and 2nd co-defendants filed their statement of defence and counterclaim. Their statement of defence avers that the land forms part of their larger family land which was recognized and documented in various decisions the well known judicial Map No. X/229/32 which delineats their family land known as Dome Land. They stated that the plaintiffs action is incompetent as being res judicata – all the issues raised in the plaintiffs case had been conclusively adjudicated upon by the Supreme Court between the 2nd co-defendant and the grantors of the plaintiff’s father in Civil Appeal No. 36.61 titled Dr. Dr. C. E. Reindorf for Nii Akrama Nukpa & Anor. V Amadu Braimah Anor.
They further cited Felix Kortei Robertson v Dr. Charles Reindorf Civil Appeal No. 3/66 operates as an estoppel against the plaintiff herein. They pleaded that all conveyances stated by the plaintiff were lapsed including transactions between the son of Charles Okine Botchway of the Awuley Mona Family of Ofankor and the father of the plaintiff following the judgment as pleaded. They contended that the plaintiffs are estopped from re-litigating the same issues before the High Court and repeated the judgments which constituted the particulars of Estoppel. The 1st and 2nd co-defendants therefore counter-claimed against the plaintiff as follows:-
“(a) Declaration that the 2nd co-defendant is the rightful owner of all the lands commonly known as
Dome lands and covering an area of 8,221.44 Acres or 12,77 sq Miles or 3,179.03 Ha and more particularly delineated on Cadastral Plan Reference No. X1229 prepared by Survey Department and signed by W. F. Mindland, Officer-in-charge, Cadastral Branch, and dated 12-2-1932.
(b) A declaration that the 2nd co-defendant is the proper authority by custom and tradition is vested with the capacity to make valid grants of the Family’s lands.
(c) A declaration that the 1st co-defendant hold a valid assignment in respect of the 5.87 acres or
2.38 Hect. of the 2nd co-defendant’s land located at South Ofankor and more particularly delineated on the attached site plan based on L.T.R No. 7/2001.
(d) Perpetual injunction to restrain the plaintiffs, their servants, agents, workmen, assigns and privies from holding themselves out as owners, custodians or persons duly authorized to grant, convey or dispose of the said lands or negotiate for the release of any portions of the said lands and the possession and enjoyment of the land in dispute and in any manner whatsoever from harassing the 1st and 2nd co-defendants or their agents and servants or assigns.
(e) General and punitive damages for trespass.
With regards to Suit No. AL 177/07, the plaintiffs in their accompanying statement of claim which was subsequently amended, pleaded that they are children and devisee of the Estate of the late Felix Joshua Brenya who died Testate on 24th January 1974. They further pleaded that by a Deed of Lease dated 1st March 1958 and registered in the Deeds Registry as No. 2316/59, their father took possession of part of the property in dispute for running of a poultry farm, Ghana Egg Farm. They also stated that by a stamped No. AC 5758/59 and registered as Land Registry No. /429/1972 the late Felix Joshua Brenya purchased outright part of the hitherto leased property and later his devisees became proprietors of the said property for ever. The property was described as all that parcel of land situate at South Ofankor in Accra, bounded on the North by A. K. Botchway and Rebecca Koko, on the South by Ghana Egg Farm, on the East by the Accra-Nsawam Road and on the West by the property of Awuley Mona Family and covering an area of 10.94 acres.
They stated that by a second Deed of Conveyance dated 30th December 1972 and registered at the Land Registry as No. 1520/1974, Felix Joshua Brenya purchased a second parcel of land adjoining the first parcel; bounded on the North-East by Accra-Nsawam Road, on the South-East by E. F. Collins and the Vendor, and on the North-West by the property of the Vendee and covered 2.07 acres. They stated that by a third Deed of Conveyance registered at the Land Registry as No. 1219/1974, their father purchased a third parcel of land situate at Tantra Ofankor from Charles Okai Botchway bounded on the North-East by the Vendor, on the South-East by the Vendor, on the North-West by the Vendor, and covers 8.035 acres. The plaintiff in 2002 registered all the three parcels of land together as a single consolidated land as Land Registry No. 434/2002.
They averred that their father operated one of the first commercial poultry farms (Ghana Egg Farm) on that land for over twenty years and their family had been in possession and control over fifty (50) years. They further averred that the concrete houses which was the chicken houses, workers quarters and offices are conspicuously marked on the whole land and the plaintiff converted some to house the Shea Butter Factory in 2003 exporting Shea Butter products to the United States. They stated that members of their family rented out portions of the land to the defendants with Tenancy Agreements for the operating stalls for their businesses and the place became popularly known as “MUUS Timber Market” and that they took over management of the tenancies in 1998. It was pleaded that the defendants attorn tenancy to their family until December 2004 when they declared that they would attorn tenancy to a company called Jonafoaco Limited which they claim were the new owners of the land.
The defendants announced publicly that Jonafoaco Limited are new owners, and they breached their tenancies and constituted themselves as landlords and forcibly collecting rent from other tenants. They contended that Jonafoaco Limited is a Sham Company set up with the sole purpose of defrauding the plaintiff of her title and provided the particulars of fraud. It was further pleaded that the defendants have refused to pay rent and were subletting portions of the land without authority. They have also breached their terms of their tenancies and were entitled to forfeit their rights of their tenancies and their right to be evicted.
On their part, 1st and 2nd co-defendants wrongly filed their statement of defence on 31st May, 2005 when they were not joined to the suit but abandoned same and the defendants caused to be filed another statement of defence and counterclaimed together with the 1st and 2nd co-defendants on 12th June 2006 which they relied on.
The defendants pleaded and admit that they were indeed tenants of the 1st plaintiff till December 2006 but have upon verification found the 1st co-defendant as the rightful owner and have since attorned tenancy to it. The 2nd co-defendant stated that the alleged Deeds of Conveyance held by the plaintiffs are of no effect because the grant is non-existent in law because until part of the land was granted to Emmanuel Artison the land remained the property of the 2nd co-defendant’s family.
The 2nd co-defendant further stated that the land in dispute forms part of his ancestral family property granted to his ancestor Ayai Pekoe for valour. This valour was said to have been exhibited for fighting side by side by their hosts Gbese and Korle Stools against the Ewes in 1860’s in the Awuna War. They pleaded that their Dome land had been in their family’s occupation and possession over years from colonial and post colonial era to date. They further pleaded that the Dome Land had been documented to cover an area of 8.221.44 acres or 12.27 square rules or 3,179.03 Ha. They pleaded the case of Civil Appeal Suit No. 36/61 titled Dr. C. E. Reindorf vrs Amadu & Braimah & Another where the Supreme Court affirmed their title to the Dome Land.
They stated that Alfred K. Botchway, the plaintiff’s father’s grantor gave evidence for the defendants as DW2 and therefore he and his grantees are caught by Res judicata or are estopped from relitigating over any part of Dome land. The 2nd co-defendant stated that their family had been adjudged as owners of the Dome land since the 1930’s and registered at the Lands Commission since 1961 and same had been reproclaimed in a later suit titled:
) Felix Robertson v Dr. C. E. Reindorf, 29th March 1971,
Tetteh Quarcoo v Tetteh Codjoe, 16th April, 1932 Josiah Reindorf & Others v Attorney-General
Phyto-Riker (GIHOC) Pharmaceuticals Ltd.
Onamrokor – Adain Family – Co-defendant
The Occupants of Ga, Gbese & Korle Stools v GIHOC Pharmaceuticals Ltd. And
Phyto-Riker (GIHOC) v Ga District Assembly – Amasaman
The Developers of the Property (Land) of Phyto-Riker (GIHOC) Pharmaceuticals Nos. L 444/99
L 247/2002 L 102/2003
The 2nd co-defendant pleaded that their predecessors and principal elders rightly and legally granted portions of the disputed land to Emmanuel Artison and Aryettey Tetteh in 1995 and Jonafoaco in 2005. They further pleaded that the defendants were right in attorning tenancy to JONAFOACO
Company because the company became the legal owner of the land from 2005. The 2nd co-defendant contended that all rents received by the plaintiffs prior to the grant to Emmanuel Artison in 1995 are rents due to their family. They also stated that possession of the land by the plaintiffs for over fifty years confirms that they are adamant trespassers. The defendants further stated that they are entitled to the land rather than the plaintiffs. The defendants therefore counter-claimed as follows:-
“a. Declaration of title to the piece of land on which they presently operate their various businesses described by the plaintiffs in their paragraphs 2 to 6 of the statement of claim.
b. General damages for trespass.
c. Perpetual injunction against the plaintiffs’ their agents, assigns etc. from by any means disturbing their quiet enjoyment of the land in question”.
The co-defendants also counterclaimed as follows:-
“a. Declaration of title and recovery of possession of all that piece or parcel of land described in paragraphs 2-6 of the statement of claim.
b. Perpetual injunction against the plaintiffs, their agents, assigns and all those who derive their title through them from holding themselves out as owners or persons authorized to convey or dispose of the said land and in any manner whatsoever from harassing the defendants, co-defendants and their servants, agents and assigns.
c. Punitive and compensatory damages for trespass and frivolous and unmeritorious action against the plaintiffs jointly and severally.
At the trial, the plaintiff testified and tendered Exhibits A, B, B1, C, D, E, F, F1 – F16, G, H, J, K, K1, L, M, N, P, Q, R, T, U and called PW1, PW2, PW3 and PW4 (four witnesses). The defendants and the co-defendants also testified, tendered Exhibits 1, 2, 2A, 3, 4, 4A, 5, 6, 7, 9, 10, 11, 12, 13, 14 and 15 and called DW1 and DW2 (two witnesses) in proof of their respective cases.
As stated supra, judgment was entered for the plaintiff and the counterclaims of the defendants and the co-defendants in both suits were dismissed by the trial judge.
Arguing the appeal, the learned counsel for the appellant argued the original ground (a) of the notice of appeal and the additional grounds together. A perusal of the grounds of appeal argued together by counsel for the appellant indicate that they could all be subsumed under the omnibus original ground which states that “the judgment is against the weight of evidence adduced at the trial”. In Owusu-Domena v Amoah [2015-2016], the Supreme Court held that a ground of appeal that was based on the omnibus ground that the judgment was against the weight of evidence meant that the appellate court has to consider both factual and legal arguments which would advance or facilitate a determination of the factual matters. In any case, the Supreme Court had in Abbey & Another v Antwi  SCGLR 17, stated the position on an appellant having filed an omnibus ground of appeal thus:-
“It was well established that where an appellant has alleged that the judgment of the trial court was against the weight of evidence, the appellate court would be under an obligation to go through the entire record of appeal to satisfy itself that a party’s case was more probable than not. Further, the appellant has to properly demonstrate what lapses he was complaining about”.
See earlier authorities like Tuakwa v Bosom [2001-2002] SCGLR 61, Amponsah v V.R.A. [1989-90] 2 GLR 28, Djin v Musa Baako [2007-2008] SCGLR 680, and Others like Oppong v Anarfi  SCGLR 556, Republic v Central Regional House of Chiefs & Others; Ex parte Gyan IX (Andoh Interested Party) [2013-2014] 2 SCGLR 845.
By these legal authorities, this court can consider both factual and legal issues but would require this court to go through the entire record of appeal including documentary evidence to satisfy itself whether the defendants and the co-defendant who are the appellants’ case is more probable than not after they had demonstrated the lapses complained of. A further perusal of the grounds of appeal argued together by the learned counsel for the appellant clearly indicates that his arguments were mostly on the appellants’ defence of estoppel per rem judicatam which was rejected by the learned trial judge.
Counsel for the appellant argued that the defendant and the co-defendants tendered into evidence the following judgments:-
a. Dr. C. E. Reindorf & Ankrah v Amadu Braimah & Nikoi Oku  1 GLR 508-523.
b. Tettey Quarcoo v Tettey Cudjoe – 16th April 1932.
c. Josiah Reindorf & Others v Attorney-General, Phyto Riker (GIHOC) Pharmaceuticals Ltd., Onamrokor Adain Family, And
d. The Occupants of Ga Gbese & Korle Stools v GIHOC Pharmaceuticals Ltd. And Phyto Riker (GIHOC) Pharmaceuticals Ltd. & Ga District Assembly, Amasaman, the developers of property (land) of Phyto Riker (GIHOC) Pharmaceuticals Ltd. (Phyto case).
Counsel stated that the trial judge held that all the judgments tendered in evidence by the Onamrokor Adain Family, the appellants’ predecessors in title, cannot be relied upon as creating estoppel per rem judicata whether in respect of issue, subject matter or parties against the plaintiff. Counsel contended that the learned trial judge on the authority of Vol.15 of Halsbury’s Laws of England (3rd Ed.) at page 207 and the case of Kariyavoulas & Anor v Osei [1982-83] GLR 659-670 by Twumasi J., was duty bound to have examined the whole record of proceedings of the cases pleaded by the appellant as creating estoppel per rem judicatam, instead of looking at the judgments in isolation. Counsel contended that the trial judge should have adopted the proper procedure in finding the fact of the location of the subject matter referred to in the judgments tendered and sought to have ordered a Surveyor from the Lands Commission to draw up a composite plan of the land in dispute and superimposed the site plans and the judgments pleaded and tendered instead of relying on the newly created names of the areas to dismiss the appellants’ plea of estoppel per rem judicatam. Failure to do this, counsel contends that it occasioned a miscarriage of justice to the appellants.
Counsel referred to the case of Dr. C. E. Reindorf & Ankrah v Amadu Braimah & Nikoi Okai Stool family of Asere Djorshie, in which the issue of the ownership of Dome lands was in dispute and the Asere Stool from which the Awuley Mona family claim their title were held not to be the true owners and the plaintiff’s grantor. Alfred Korku Botchway gave evidence on behalf of the defendant therein and they lost the said case. Counsel further contended that since the main issue was the ownership of the Dome lands and once this issue has been determined, the plaintiffs are estopped from bringing the present action on the same issue that is ownership of the Dome lands. Counsel submitted that this court should hold that the issue of the ownership of the Dome Lands has been determined and the plaintiff is estopped from bringing an action to determine same.
On his part, the learned counsel for the plaintiff after analyzing the judgment of the trial court submitted that the trial judge’s judgment on the issue of res judicata be upheld because res judicata is not applicable to the plaintiff’s claim.
Now, where a judgment is pleaded as operating as an estoppel, the court must as a preliminary point decide on the kind of estoppel being relied on in order to avoid confusion – see Poku v Frimpong  1 GLR 230 Holding (1) CA. I would first address the question of res judicata or estoppel per rem judicatam which is also the main issue in this appeal in the light of the said authority. Estoppel per rem judicatam is of two kinds, namely cause of action estoppel and issue estoppel. The distinction was clearly decided on by the Supreme Court in In Re Asere Stool [2005-2006] SCGLR 637 Holding (3) as follows:-
“Estoppel per rem judicatam is a generic term which in modern law, includes two species. The first species is called “Cause of action estoppel”; which prevents a party to an action from asserting or denying as against the other party the existence of a particular cause of action, the non-existence of which has been determined by a court of competent jurisdiction in previous litigation between the same parties. If the cause of action was determined to exist, i.e. judgment given on it, it is said to be merged in the judgment, the Latin phrase being transit in rem judicatam. If it was determined not to exist, the unsuccessful party can no longer assert that it does; he is estopped per rem judicatam. This is simply an application of public policy expressed in the Latin maxim nemo debet bis vexari pro uno et eadem causa, meaning literally, that no man ought to be twice put to trouble, if it appears to the court that it is for one and that same cause. The second species is called “issue estoppel” which is an extension of the same public policy. This will arise where apart from cases in which the same cause of action or the same plea in defence is raised, there may be cases in which a party may be held to be estopped from raising particular issues, if those issues are precisely the same as the issues which have been previously raised and have been the subject of adjudication”.
Furthermore, the Supreme Court in an earlier decision in In re Sekyedumase Stool Affairs; Nyame v Kesse alias Konto [1998-99] SCGLR 476 espoused the plea of res judicata in holding (1) as follows:-
“Furthermore, the plea of res judicata encompasses three types of estoppel: cause of action estoppel, issue estoppel in the strict sense and issue estoppel in the wider sense. Cause of action estoppel should properly be confined to cases where the cause of action and the parties (or their privies) are the same in both current and previous proceedings. In contrast, issue estoppel arises where such a defence is not available because the causes of action are not the same in both proceedings between the parties (issue estoppel in the strict sense) or where issues should have been litigated in previous proceedings but owing to negligence, inadvertence or even accident, they were not brought before the court (issue estoppel in the wider sense)”.
See also Agbeshie & Another v Amorkor & Another  SCGLR 594; Dahabieh v Turqui & Bros [2001-2002] SCGLR 498; Ntiri v Essien [2001-2002] SCGLR 451; Asare v Dzeny  1 GLR 437 at 478 per Azu Crabbe CJ (Full Bench), Boakye v Appollo Cinemas & Estates (Gh) Ltd. [2007-2008] SCGLR 458.
The Black’s Law Dictionary, Ninth Edition, edited by Bryan A. Garner defines it as “Latin – ‘a thing adjudicated’;
1. An issue that has been definitely settled by judicial decision.
2. An affirmative defence barring the same parties from litigating a second lawsuit on the same claim, or any other claim arising from the same transaction or series of transactions and that could have been – but was not – raised in the first suit. The three essential elements are (1) an earlier decision on the issue, (2) a final judgment on the merits, and (3) the involvement of the same parties or parties in privity with the original parties …”.
The three essential elements to establish for the plea of Estoppel per rem judicatam to hold as stated in the Black’s Law Dictionary as quoted above have been given by the Supreme Court in the cases supra and are as follows:-
1. The earlier decision on the issue i.e. whether same claim is as the present.
2. Final judgment on the merits by a court or tribunal of competent jurisdiction and
3. Same parties in both suits and parties in privity with the original parties.
See also Nana Brafo Dadzie II v John King Arthur & 13 Others  108 GMJ 230 at 253. Indeed, the learned trial judge at page 387 of the record of appeal held and dismissed the judgments tendered by the defendants and co-defendants as not creating any estoppel per rem judicatam as follows:-
“I am satisfied and hold that all the judgments tendered by the Onamrokor Adain Family cannot be relied upon as creating any estoppel res judicata whether in respect of issue, subject matter or parties against the plaintiffs in this case and in favour of the Onamrokor Adain family at all. Consequently, I dismiss the defendants and the co-defendants counter claim (a) filed with leave on the 21st January 2011”.
The learned trial judge then cited In re Mensah (dec’d); Mensah Sey v Intercontinental Bank (Gh) Ltd.  SCGLR 118 @ 120 on Estoppel per rem judicatam. Was the learned trial judge right in dismissing the defendants and co-defendants’ judgments as creating no estoppel per rem judicatam? The answer to this question would require a critical examination of the judgments listed as (a), (b), (c) in the written submissions by counsel for the defendants and co-defendants.
It is not in doubt that the defendants and co-defendants in paragraphs 12, 13, 14, 15, 16 and 17 of their statements of defence filed on the 21st February, 2006 but subsequently filed a counterclaim that all the issues raised in the plaintiffs’ claim are caught by estoppel. During the trial, they tendered various judgments in support of their case. Counsel for the defendants and co-defendants first referred to (a) Dr. C. E. Reindorf & Ankrah v Amadu Braimah & Nikoi Oku  1 GLR 508-523 which was tendered as Exhibit 9 as creating estoppel per rem judicatam. Counsel for the defendants and co-defendants complaint is that this judgment concerned the issue of ownership of Dome lands in dispute and the Asere Stool from which the Awuley Mona family were held not to be owners of the land the subject matter of the dispute. Counsel contended that “Indeed the plaintiff’s father’s grantor, Alfred Korlai Botchway gave evidence on behalf of the defendants in the above suit and lost”.
A perusal of Exhibit 9 indicate that the suit was between the Onamrokor family and Amadu and Braimah as defendants and the King Tackie family of Asere Djorshie as co-defendant. The matter was decided by the Supreme Court. At page 578 of the record of appeal, the claim reads:-
“The defendants are licensees working a quarry on a portion of the plaintiffs family land at Apenkwa subject to the payment of monthly toll or rent of £…..” (Emphasis mine).
It is thus clear that it was the Apenkwa land that was the subject matter of dispute in Exhibit 9 and not the Ofankor land which is in dispute in the instant appeal. Furthermore, a perusal of the entire judgment of the Supreme Court indicates that it did not disclose that the plaintiff’s father’s grantor herein, Alfred Korlai Botchway gave evidence on behalf of the King Tackie family the defendants therein. King Tackie family of Asere Djorshie cannot be the same as Awuley Mona family of Asere. King Tackie family laid claim to the Mukose land which was part of the Dome land belonging to the predecessors of the Onamrokor Adain family and lost at the Supreme Court. Indeed I agree with the learned trial judge in refusing to uphold the claim of estoppel per rem judicatam against the plaintiffs herein at page 385 of the record of appeal as follows:-
“In exhibit 9, the 1st plaintiff therein, the Head of the Onamrokor Adain family sought declaration of title to a quarry site situate at Apenkwa, a suburb of Accra near Achimota. Although the head and lawful representative of the King Tackie family of Asere Djorshie, Accra was a co-defendant to that suit, there is no evidence on record that the plaintiffs’ grantors hail from the King Tackie family of Asere Djorshie. The evidence on record that the plaintiffs’ grantors hail from the Awuley Mona family of Asere.
Besides, the subject matter of that suit concerned a declaration of title to a quarry site at Apenkwa. The subject matter of the present action is land situate at Ofankor. Indeed this has been admitted even by the defendants and co-defendants in the instant suits per the schedule to exhibit S which is a Deed of Assignment executed by one Artison and Ayitey Tetteh in favour of Jonafoaco Ltd. on the 24th January 2005, wherein they described the land in dispute as “situate lying and being at South Ofankor – Accra”. The said exhibit ‘S’ is the same as exhibit 13 tendered by Jonafoaco Ltd. Again, the Solicitor of the Jonafoaco Ltd., in his letter of 14th February 2005, exhibit 15 herein, which was addressed to Occupiers of the land, described the land in dispute as “located at South Ofankor popularly called MUUS”. Nhyira Ababio also admitted on behalf of Jonafoaco Ltd. that, the land is at Ofankor. I hold that the judgment in exhibit 9 herein cannot legally and by any stretch of imagination operate as estoppel per res judicata in the instant suit”.
Applying the authorities supra to the judgment in exhibit 9 indicates that it is neither the same parties nor their privies, a cause of action estoppel or an issue estoppel and therefore Exhibit 9 cannot bind or create an estoppel per rem judicatam against the plaintiffs herein. Moreover, the learned counsel relied on Exhibit 7, Tetteh Quarcoo v Tettey Cudjoe, which judgment was delivered on 16th April, 1932 before His Lordship Sir George Campbell Dean - Chief Justice. This exhibit 7 was a dispute in respect of successorship between two members of the Onamrokor Adain family and it was never a land dispute.
The learned trial judge succinctly concluded and held that:-
“The Chief Justice who delivered that judgment observed therein that “it turns out however that this is not a case of a disputed boundary at all, what is at issue between the parties being who is entitled as Head of the Onamrokor family to ownership of the Dome Land”. I hold that the judgment in exhibit 7 creates no estoppel per res judicata between the plaintiffs and the Onamrokor Adain family”.
I could not agree more with the learned trial judge in his conclusion and holding on exhibit 7. Attached to exhibit 7 is exhibit 8, a plan of the land of the Onamrokor Adain family which is known as Dome land. This Dome land is distinct from the Ofankor land. These exhibits 7 and 8 cannot create any estoppel per rem judicata and the learned trial judge was right in holding as such. In any case Exhibit 8 revealed that Ofankor is outside the Dome land and DW2 admitted same at page 326 of the record of appeal.
Furthermore, learned counsel for the appellant relied on Exhibit 10, which is a judgment delivered by Marful-Sau J (as he then was) on 16th December 2005. A perusal of exhibit 10 indicates that it touches and concerns land, the subject matter of land covered by an E.I. 81 of 1965 and E.I. 84 of 1977 situate at Achimota. His Lordship stated thus clearly on page 1 of Exhibit 10 at page 599 of the record of appeal as follows:-
“Executive Instrument 84 of 1977.
The subject matter of controversy in this suit is a parcel of land situate at Achimota, Accra covered by Executive Instrument namely E.I. 81 of 25th August 1965 which covered a land area of 42.54 acres and E.I. 84 of 17th June 1977 which also covered a land area of 61.64 acres”.
The learned trial judge rightly observed and concluded thus:-
“Once again I ask how it can be said that a judgment whose subject matter is land at Achimota creates estoppel in respect of a suit whose subject matter is land situate and lying at Ofankor”.
Indeed, I agree with the learned trial judge that estoppel cannot be created when the subject matter of both suits are entirely different, the parties are different, no privies and the issues are different. No estoppel per rem judicatam can be created in such a situation as decided by the authorities. This judgment did not determine the ownership in the instant appeal. The first part of the ground of appeal on estoppel per rem judicatam fails and it is dismissed.
I would not consider whether the judgment is against the weight of evidence because the learned counsel for the defendants and co-defendants abandoned this ground (a) and did not offer any written submissions in respect to that. By the legal authorities it was up to the defendants and the co-defendants who are the appellants to properly demonstrate the lapses in the record of appeal before this court could go through the entire record to satisfy itself that a party’s case was more probable than not. See Abbey & Anor v Antwi (supra) and other authorities (supra). However, a perusal of the record of appeal revealed that there is overwhelming evidence that title resides in the plaintiff.
The learned counsel for the defendants and co-defendants also argued this ground of appeal that the learned trial judge erred by not using an empirical means to ascertain the true description of the land in dispute but only used the names of the land as a description. It is trite that in an action for declaration of title, the plaintiff assumes the burden of proof on a balance of probabilities the boundaries of the land claimed. See Bedu v Agbi  2 GLR 238; Effisah v Ansah [2005-2006] SCGLR 947 Holding 7 among other legal authorities. However, where the defendant counter claimed, he carries the same burden as the plaintiff. See Jass Co. Ltd. v Appau & Anor  SCGLR 263 at 271, Hydrafoam Estates Ltd. v Owusu (per lawful Attorney) Okine & Others [2013-2014] 2 SCGLR 1117 headnote (4). Is the identity of the land in dispute in doubt?
A perusal of paragraphs 4, 5, and 6 of the statement of claim filed on the 16th February, 2005 and the statement of claim filed on 30th January, 2006 were admitted by the defendants and co-defendants in their statement of defence and counterclaim filed on 21st February 2006 and 12th June 2006 in Suit NO. AL/177/2007 respectively who endorsed their counterclaim as follows:-
“(b) A declaration that the plaintiff is not the rightful owner of the land described in Paragraph 1 of the statement of claim.
(a) Declaration of title and recovery of possession of all that piece of parcel of land described in paragraphs 2-6 of the statement of claim”.
Paragraphs 2-6 of the statement of claim in Suit No. AL/177/2007 found on pages 3 to 4 of the record of appeal states as follows:-
“2. The plaintiffs say that by a Deed of Lease No. 2316/59 the late Joshua Brenya took possession of the property in dispute for the purposes of running a Poultry Farm, and have been the owners of the said property ever since.
3. Plaintiffs say that by another Deed of Conveyance dated 20th October 1959, the plaintiffs say that their late father purchased a portion of the land registered and stamped as No. AC 5758/59 and Land Registry No. 1429/1972 from Alfred Kooden Botchway.
4. The plaintiffs assert that the said property consists of all that piece or parcel of land situate, lying and being at Ofankor-Accra and bounded on the North by properties of A. K. Botchway, Rebecca Koko and A. K. Botchway measuring four hundred feet (400ft) more or less, on the South by Ghana Egg Farm measuring 400ft, on the East by Accra-Nsawam Road measuring 100ft more or less and on the West by property of Awuley Mona family measuring 100ft more or less and covering an approximate area of 0.94 acres which said piece or parcel of land is more particularly described and delineated on the plan attached thereto.
5. The plaintiffs aver that by a second Deed of Conveyance dated 30th December 1972, the said
father of the plaintiffs purchased a second lot of the property adjoining the 1st lot bounded by the property of Awuley Mona family measuring 400ft more or less and by the South West by proposed road measuring 200ft more or less, on the South East by the properties of R. R. Collins and the Vendor measuring 500ft more or less and on the North East by the property of Felix J. Brenya measuring 500ft more or less and covering approximate area of 2.07 acres which said piece or parcel of land is more particularly described and delineated in the plan.
6. Plaintiffs aver again that a Deed of Conveyance dated 13th March 1973, the father of the plaintiffs again purchased a third lot of land from Charles Okai Botchway situate, lying and being at Tantra Ofankor bounded on the North East by the property of Vendor measuring 500ft more or less and covering an approximate area of 8.035 acres which said land is more particularly described and delineated in the site plan”.
It is thus clear that the parties know the land in dispute and that the identity of the land is undisputed. The defendants admit the boundaries of the land in dispute as set out in the statement of claim. It is significant to note that the plaintiff testified that the land in dispute is situate, lying and being at South Ofankor and the property is called MUUS because her father who leased the land but later purchased it operated a company called Ghana Poultry Feed Mill also known as MUUS.
A perusal of the evidence of the defendants indicate that the defendants admit that the land in dispute is situate, lying and being at South Ofankor and that the place is known as MUUS. Nhyira Ababio who represented and testified on behalf of the 1st co-defendant, the Jonafoaco Company Limited in Suit No. AL 177/2007 admitted that the land in dispute is situate at South Ofankor. He tendered Exhibit 13, a Deed of Assignment between Emmanuel Artison and Mr. Tettey Ayitey Tetteh and Jonafoaco Limited and in the schedule, the land was described as “ALL THAT PIECE OR PARCEL OF LAND situate, lying and being at SOUTH OFANKOR-ACCRA …..”. Seth Morgan who represented the 1st co-defendant also testified that the land in dispute is situate at a place known as MUUS. I therefore agree with the finding of the learned trial judge at page 384 of the record of appeal thus:-
“I find from the testimonies of the plaintiff and her witnesses as well as the evidence of the defendants and the co-defendants that the land in question is situate at a place called South Ofankor popularly known as MUUS”.
Furthermore, crucial to this ground is Exhibit 7 the judgment in the Suit between two members of the Onamrokor Adain family in 1932 tendered by DW1 a representative of the said family and who also testified on behalf of the family that is the 2nd co-defendant. Attached to Exhibit 7, the judgment is a site plan of the land in dispute therein, marked as Exhibit 8. A perusal of Exhibit 8, the site plan drawn up in 1932 shows that Ofankor is clearly outside the area described as Dome and also Achimota which land the defendants and co-defendants claim. A further perusal of Exhibit 8 also indicate that modern names of various suburbs of Accra like Kwabenya, Achimota, Dome, Ofankor, Ashonmang were all embedded on the site plan but these names have not changed and remained permanent to date. The names of these suburbs have remained on the land to date. A perusal of the evidence of Seth Morgan, a retired Government Surveyor who testified on behalf of the 2nd co-defendants’ family in further cross-examination admitted that Ofankor is outside the land of the Onamrokor Adain family at page 326 of the record of the appeal as follows:-
“Q. If you look at exhibit 8 you would see from exhibit 8 that Ofankor is not covered in all these. That is the areas marked red and green, Ofankor is not covered therein?
A. You have on that side written Abankwa of Ofankor land.
Q. I am suggesting to you that Ofankor is not covered in the area marked for Dome.
A. No my Lord.
Q. So Ofankor is outside the land holding of Onamrokor Adain family.
A. Yes my Lord”
It is thus obvious that with the admission of the 2nd co-defendant’s representative, which shows that the defendants and co-defendants have trespassed unto the plaintiff’s land which is outside the land they have counterclaimed for. The positioning of Ofankor and other suburbs of Accra have not changed. The trial judge did not need to use any empirical means other than Exhibit 8 tendered by the defendants and co-defendants themselves. The learned trial judge was therefore right in his findings and holding since same is supported by the evidence on record. It is trite that where a trial court’s judgment is supported by the evidence on record, the appellate court should be slow in setting same aside. See Koglex Ltd. (No. 2) v Field  SCGLR 175 Holding (2); Kyiafi v Wono  GLR 467 and Achoro v Akanfela [1996-97] SCGLR 29. This ground of appeal fails and it is dismissed.
The next ground of appeal is that the learned trial judge erred when he held that the grant made by Onamrokor Adain family to Emmanuel Artison and Ayitey Tettey as well as the grant made by Emmanuel Artison and Ayitey Tettey to Jonafoaco was obtained by fraud when the plaintiff had not proved fraud. Counsel for the defendants and the co-defendants submitted that the holding by the trial court that the grant made by Onamrokor Adain family as well as the grant made by Emmanuel Artison and Ayitey Tettey to Jonafoaco was obtained by fraud is inconsistent with the evidence before the court. The learned trial judge at page 396 of the record of appeal held as follows:-
“In the face of this glaring admission made by the two co-defendants in support of the case of the plaintiff, wonder why Jonafoaco Ltd. and its officers with their eyes wide open and looking at these permanent structures which they admit belong to the plaintiff, they still went ahead and took an assignment of the land in dispute from the so called Emmanuel Artison and Ayitey Tettey. I hold their conduct to be very imprudent if not fraudulent”.
The learned trial judge on page 398 of the record of appeal further declared as follows:-
“I will therefore declare the grant made by Onamrokor Adain family to Emmanuel Artison and Ayitey Tettey to Jonafoaco as having been obtained by fraud. I consequently nullify the said grants and set them aside”.
Order 11 rule 8(1)(a) of the High Court (Civil Procedure) Rules, 2004 C.I. 47 required that fraud must be pleaded as follows:-
“(1) A party shall, in any pleading subsequent to a statement of claim, plead specifically any matter, for example, performance, release, any limitation provision, fraud or any fact showing illegality …”.
Order 11 rule 12(1) required particulars to be pleaded as follows:-
“Subject to subrule (2) every pleading shall contain the necessary particulars of any claim, defence or other matter pleaded including, but without prejudice to the generality of the foregoing words, (a) particulars of any misrepresentation, fraud, breach of trust, willful default or undue influence on which the party relies”.
Further, the Black’s Law Dictionary, Ninth Edition by B. A. Garner defines Fraud as:-
“1. A knowing misrepresentation of the truth or concealment of a material fact to induce another to act to his or her detriment”.
However, although fraud must be pleaded, a court is enjoined not to ignore it if it is clear on the record. In Appeah & Another v Asamoah [2003-2004] 1 SCGLR 226, Holding (4) cited by counsel for the co-defendants, the Supreme Court delivered itself as follows:-
“Fraud would vitiate everything. And ordinarily, fraud should be pleaded. It had not been pleaded in the instant case. Notwithstanding the rules on pleadings, the law was that where there was clear evidence of fraud on the face of the record, the court could not ignore it”.
Further in Amuzu v Oklikah [1998-99] SCGLR 141 at 143, the Supreme Court earlier made its position clearer as follows:-
“In this case, fraud has not been distinctly been pleaded as the practice required. But in view especially of the provisions of sections 5, 6, and 11 of the Evidence Decree 1975, (NRCD 323), regarding the reception of evidence not objected to, it can be said that where there is clear but unpleaded evidence of fraud, like any other evidence not objected to, the court cannot ignore same, the myth surrounding the pleading of fraud notwithstanding”.
See also Dzotepe v Harhomene III [1987-88] 2 GLR 681 SC; Okofoh Estates Ltd. v Modern Signs Ltd. [1996-97] SCGLR 233 at 253 and other respectable authorities.
Was the trial judge right in concluding and finding fraud and whether fraud was proved beyond reasonable doubt? Section 13(1) of the Evidence Act requires that any allegation of a criminal act in civil trial, the burden of persuasion required was proof beyond reasonable doubt. In Sasu Bamfo v Sintim  1 SCGLR 136 Headnote (3), the Supreme Court succinctly stated the law as follows:-
“The law regarding proof of forgery or any allegation of a criminal act in civil trial was governed by section 13(1) of the Evidence Act, 1975 (NRCD 323); that section provided that the burden of persuasion required was proof beyond reasonable doubt”.
See also Fenuku v John-Teye [2001-2002] SCGLR 985.
In this instant appeal, it required that even if fraud was found on the face of the record, it must satisfy the test of proof beyond reasonable doubt. In this appeal, there is sufficient evidence on record that the defendants were tenants of the plaintiff who had tenancy agreements with her. These tenancy agreements were tendered as Exhibits F, F1 to F16. The plaintiff caused his Solicitor to write a letter to all the tenants to renew their tenancy and this letter is Exhibit G. Exhibits J, J1 to J4 represented payment of rent by the said tenants. These tenants operated a timber market on several pieces or parcels of the land in dispute having been allotted same by the plaintiff. DW1 was one time a Manager of the plaintiff who collected rents from all the tenants on land and behalf of the plaintiff. The defendants admit they were tenants on the plaintiff’s Ofankor land and paid rents to her. They also admitted that the old structures on the land belonged to the plaintiff.
DW2 was also such a tenant who paid rent to the plaintiff and admitted clearly that the plaintiff’s father owned the land in dispute which is at Ofankor. It is also undisputed that the representatives of the co-defendants Jonafoaco Limited admitted that the permanent structures on the land were put up by the plaintiff’s father and a perusal of the record of appeal also reveals that the co-defendant Onamrokor family has never been in possession of the land in dispute. There was therefore abundant evidence of fraud on the face of the record from the conduct of the defendants. This fraud allegation was proved beyond reasonable doubt. The learned trial judge was right in concluding and finding fraud on the face of the record. This ground of appeal also fails and it is hereby dismissed.
The final ground of appeal is that the learned trial judge erred when he gave a declaration of title to the land to the plaintiff when she had not proved her title. It is trite that in an action for declaration of title to land, injunction and recovery of possession, the plaintiff must establish by positive evidence the identity and limits of the land he claims.
See Aryeh & Akakpo v Ayaa Iddrisu  SCGLR 891 Holding 2; Nyikplorkpo v Agbodotor [1987-88] 1 GLR 165; Bedu v Agbi (supra). As stated supra the defendants and the co-defendants having counterclaimed assumed the same burden as the plaintiff in this appeal. See Jass Co. Ltd. v Appau & Anor (supra). The defendants and co-defendants therefore bore the burden of proving their counterclaim on the preponderance of the probabilities and would win on the strength of their case and not on the weakness of the plaintiff’s case.
In the instant appeal, it is undisputed that the plaintiff led sufficient evidence of her superior title by tendering Exhibit ‘A’ the lease with her father’s grantor, Exhibit B and B1 being the sale of the land at Ofankor to her father in 1959. The plaintiff also tendered Exhibit C, the picture of the sign post of the Ghana Egg Farm Limited established in 1952. She also tendered Exhibit D being the last Will of her late father who devised the Ofankor land in dispute to her and her sister. A Vesting Assent was also granted her and her sister over the Ofankor land willed to them by Exhibit D. The plaintiff testified further and tendered Exhibits F, F1 to F16 representing tenancy agreements with the defendants and DW1 and DW2. Exhibits J, J1 to J4 evidenced the payment of rents to the plaintiff. The plaintiff also tendered Exhibit L, a letter from her Lawyer on the liquidation of the Ghana Poultry Feeds Mills Limited (MUUS), a company formed by the plaintiff’s father on the Ofankor land.
Further Exhibit L1 was tendered as notice to Creditors and Debtors in liquidation of the said company. Exhibit N is an Assignment between the Registrar-General the Official Liquidator of the Feed Mills Company and Buck Press Limited over Ghana Poultry Feed Mills Limited sold to the Buck Press Limited. PW4 indeed corroborated the evidence of the plaintiff that the company was sold to Buck Press Limited who established a printing press on the land at Ofankor. Plaintiff also proved her case by tendering Exhibit P the Land Title Certificate for Buck Press which revealed that the portion of the land with its buildings were sold to Buck Press. Plaintiff also tendered Exhibit M being evidence of another land purchased by her father at Ofankor and other documents tendered. It is on record that the plaintiff called witnesses who corroborated her evidence. As earlier stated in this judgment the defendants admitted the case of the plaintiff that they were once her tenants, likewise DW1 and DW2. It is also on record that neither the plaintiff nor her predecessor encountered any interference while in effective possession and occupation of the land. On page 196 of the record of appeal, the plaintiff testified as follows:-
“Q. And from that period; throughout the period he operated the MUUS, to the best of your knowledge was there any interference by anybody.
A. No, to my knowledge there wasn’t any interference and whilst he was operating on it he had twenty-one permanent structures including residential, factory buildings, residential quarters for workers and offices
Q. So in effect you were in effective possession.
A. Yes my Lord.
Q. These defendants that you brought to court who are they?
A. These defendant used to be my tenants”.
The plaintiff further testified that some tenants still paid rents to her by tendering Exhibit J series to signify her further effective possession of the land in dispute. As stated supra, there is no dispute that the land in dispute is at South Ofankor and not Dome or Achimota as the defendants and the co-defendants pleaded and stated in their testimony before the court. The defendants and the co-defendants relied heavily on judgments as res judicata which I have earlier in this judgment found not bound on the plaintiff. These judgments were tendered as Exhibits 6, 7, 8, 9, 10. It is also noted that the defendants and co-defendants relied on and tendered Exhibits 11, 12, 13, 14 and 15 which indicate that Jonafoaca Limited were the owners of the land in dispute after lapsing the title of the plaintiff. Invariably, the defendants and co-defendants ended up admitting the plaintiff’s claim. Their witnesses also admitted the plaintiff’s case. The representative of the 2nd co-defendant, the Onamrokor Adain family admitted in cross-examination that their land is called Dome and that the plaintiff’s land is at Ofankor which is outside their Dome land. He also admits Exhibit C the signboard of the plaintiff’s father, the Ghana Egg Farm Limited and that the permanent structures on the land belonged to the plaintiff.
The defendants and co-defendants called two witnesses whose evidence did not support them. The representative of the 2nd co-defendant Seth Morgan who is a retired Government Surveyor and who testified on behalf of the 2nd co-defendant, testified and tendered Exhibit 6. Exhibit 6 is one of the judgments, I held earlier not to constitute estoppel per rem judicatam. He testified that based on the judgments tendered and the plaintiff’s refusal to honour invitations by the family her title to the land was expunged by the Lands Commission. That land was leased to Emmanuel Artison who later sold same to the 1st co-defendant company Jonafoaco Limited. The defendants and co-defendants could not prove their counterclaim. The Lands Commission had no basis to have expunged or lapsed based on Exhibit 6 the judgment in 1961 because that judgment related to Dome land and not the plaintiff’s Ofankor land. The plaintiff was never given the right to be heard as plaintiff’s letter was not responded to and thus breached Article 23 of the 1992 Constitution which required all Administrative bodies and administrative officials to act fairly and reasonably.
Further, it is trite that the Lands Commission has no power to lapse unless upon a court order. 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 the court. The Administration of Land Act 1962 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 later 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 Commission expunging or deleting the plaintiff’s name from the Register was unlawful.
If Exhibit 6 had indeed covered the land in dispute, neither the Vesting Assent nor the interest registered in Exhibits A1, B and B1 would have been registered. What did the Onamrokor Adain family do for the period that the plaintiff’s father and later the plaintiff were in effective possession and control of the land as testified by PW1 the mother of the plaintiff who managed the land after the death of the plaintiff’s father before plaintiff took over. I totally agree with the holding of the learned trial judge on the lapses or expunging the title of the plaintiff as follows:-
“The court holds that the lapsing of the title or registration of the plaintiff’s title to the land by the Lands Commission on the basis of a 1961 judgment to which neither the plaintiff nor her predecessor in title was party and in respect of which the subject matter and issues were completely different from the subject matter and the issues in this matter, was totally unlawful not to mention the fact that the plaintiff was not heard by the Lands Commission before the title was expunged …”.
It is my finding and holding that the plaintiff proved her case on the balance of probabilities and the learned trial judge was right in declaring title in her favour and dismissing the counterclaim of the defendants and co-defendants. This ground of appeal fails and it is dismissed.
In conclusion, the appeal fails in its entirety and it is hereby dismissed. The judgment of the High Court, Fast Track Division Accra, dated the 31st day of July 2012 is hereby affirmed.