IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL
ACCRA - A.D 2018
ERNESTINA OPOKUAH - (Plaintiff/Appellant)
ADJOA NYAMEKYE AND CHIEF REGISTRAR (LANDS REGISTRY)-(Defendants/Respondent)
DATE: 25 TH OCTOBER, 2018
CIVIL SUIT NO: H1/15/2018
JUDGES: M. OWUSU (J.A.) – PRESIDING, LOVELACE-JOHNSON (J.A.), KWOFIE (J.A.)
MR. FELIX NANA OSEI FOR PLAINTIFF/APPELLANT
MR. EMMANUEL BRIGHT OTOKOH FOR 1ST DEFENDANT/RESPONDENT
MARIAMA OWUSU, J.A.:
On 3rd May, 2017, the High Court, Accra, dismissed plaintiff’s claim against defendants and entered judgment for the 1st defendant on her counterclaim.
In her judgment, the trial judge held among other things as follows:
“Upon the totality of the evidence adduced before the Court, therefore, I find that the Plaintiff has failed to establish her claims against the Defendants. Her claims are accordingly dismissed. I find that the 1st Defendant is entitled to judgment on her counterclaim, having established same. Accordingly, Judgment is entered for the 1st Defendant against Plaintiff on her counterclaim. The 1st Defendant is to recover from the Plaintiff any piece or parcel of land covered by Land Certificate Number GA 16344 in the possession of the Plaintiff. I award Damages for trespass in the sum of GH₲ 8,000 against Plaintiff and in favour of the 1st Defendant…”
Dissatisfied with the decision of the trial court, the plaintiff mounted this appeal on the following grounds:
(i) The judgment is against the weight of evidence adduced.
(ii) The trial judge erred when he accepted and relied on the report of the Surveyor despite her findings that same was fraught with inconsistencies.
(iii) The trial judge erred when she held that the Plaintiff/Appellant failed to establish her ownership of the land in dispute.
(iv) The trial judge erred when she held that the land assigned to the Plaintiff/Appellant by her Assignor was materially distinct from that which was owned by her Assignor.
(v) The trial judge erred when she held that despite the back-dating of the Land Title Certificate of E. K. Tweneboah same was not fraudulently procured.
(vi) Further grounds of appeal to be filed on receipt of the Record of Appeal.
The relief sought from the Court of Appeal is for an order reversing the judgment of the Trial Court.
Before dealing with arguments advanced in support and against this appeal, I will give a brief background of the case.
By her amended Writ of Summons, the plaintiff claims against the defendants jointly and severally for:
An order of the Court to dismiss 1st defendant’s Defence and Counterclaim because she had already claimed the same piece of land in the High Court and lost and appealed to the Court of Appeal in 2007.
A consequential order that the Land Title Certificate number GA 16344 should be cancelled by this Honourable Court.
A further order compelling the 2nd defendant to register the instrument already lodged with the Land Title Registry as far back as 10th May 2007.
An order of Perpetual Injunction restraining the 1st defendant, her agents, assigns, workmen, or otherwise whosoever described from interfering with the Plaintiff’s interest in the land described in the schedule hereunder.
Costs, including Solicitors fees and other incidentals.
In the 27 paragraph Amended Statement of Claim, the plaintiff averred among other things that, by a Deed of Assignment dated 29th July, 2004, executed between one Kingsley Adu Baffour and the plaintiff, the latter became the beneficial owner of all that piece and parcel of land situate, lying and being at New Achimota, Accra, containing an approximate area of 0.47 acre or 0.19 hectare and bounded on the North-West by Police property measuring 102.4 feet more or less, on the North-East by Nsawam Road measuring 195.4 feet more or less, on the South-West by the lessor’s land measuring 197.2 feet more or less (hereinafter called “the property”). The plaintiff averred further that, her assignor duly registered the instrument covering the land he assigned to her at the Land Registry as No. 1218/2004.
She continued that, having acquired the property aforesaid, she exercised overt acts of ownership by constructing the foundation of the structure she intended erecting on it and fixed corner pillars on the land without any challenge from third party. It is the case of the plaintiff that, when 1st defendant and her agents laid adverse claim to the disputed land, she took action in the High Court in Suit No. BL 146/2006, titled Ernestina Pokuah and the Occupiers. The Court declared title to the property in her favour on 15th February, 2006. Thereafter she lodged her instrument covering the said property with the 2nd defendant for Land Title Registration. In a questionnaire from the Weekend Crusading Guide Newspaper, the 2nd defendant among other questions answered that, there is no trace of any records lodge by 1st defendant even though 1st defendant’s name appeared in the Survey Department records. Secondly, the 2nd defendant in error stated that there is prior interest of one Victor Ogunro whose root of title is based on a 1946 registered Deed. Consequently, the said Victor Ogunro’s interest have priority over plaintiff’s claim to the land in dispute.
The plaintiff concluded that, the position of the 2nd defendant is wrong and that Victor Ogunro’s land is nowhere near her land. This is because, a search she conducted at the Lands Commission dated 12th February, 2008 indicates that her land is unencumbered and the root of title of her claim has not been interfered with. Therefore, Land Title Certificate number GA 16344 which affects her land has been backdated and same is a mistake or fraud.
The plaintiff gave the particulars of fraud as follows;
There is no record of 1 st defendant lodging her instrument for registration, nevertheless, the 2nd defendant back-dated a land certificate for her.
In the face of the Search evidence that the root of title is traceable to the plaintiff, the 2nd defendant ignored same and registered the instrument covering the plaintiff’s land in the name of 1st defendant.
The 2nd defendant ignored the legal requirement that the Land Title Registry cannot register any encumbered land;
Hence this action.
The 1st defendant in her amended Statement of Defence denied plaintiff’s claim and put the latter to strict proof of her averments. In particular, the 1st defendant insisted she is the bona fide owner of the land in dispute She averred further that, the land assigned to plaintiff is not the same as her land. She continued that, the land in dispute forms part of the land acquired by her uncle Emmanuel Kwadjo Tweneboah on 31st March, 1969, which land covered an approximate area of 1.836 acres. 1st defendant gave her root of title as follows:
A Conveyance dated 3oth December, 1963 between Dr. Charles Elias Reindorf, head of the Onamrokor Adain Family of Accra as Vendor and Fredrick Percival Segbefia as Purchaser. In this transaction, the Vendor granted 1.836 acres of land situate at and lying at Mile 7, Achimota, Accra Nsawam Road to the said Purchaser. This land is registered with Land Title Registry as No. 416/1967.
By a Conveyance dated 1st July, 1967 between Fredrick Percival Segbefia, as Vendor and Frank Kwesi Egli as Purchaser, the land was registered with Land Title Registry No. 940/1969.
Then by a Conveyance dated 31st March, 1969, between Frank Kwesi Egli as Vendor of the one part and Emmanuel Kwadjo Tweneboah as Purchaser of the other part, the former conveyed the said 1.836 acres of land described above to E. K. Tweneboah. This transaction is also registered with the Land Title Registry as No. 941/1969.
The 1st defendant described the land acquired by the late Kwadjo Tweneboah in paragraph 11 of her Amended Statement of Defence.
It is the case of 1st defendant that, the late Kwadjo Tweneboah was paid compensation by the government through Ghana Highways Authority for demolishing part of his property on the land during the construction of Accra Nsawam Road in 1979. Thus, the size of E. K. Tweneboah’s land was reduced to 1.54 acres after the demolition of his property and the subsequent payment of compensation to him. The 1st defendant concluded that, Emmanuel Kwadjo Tweneboah divided the said land among his nephews and nieces who have since built on their land and been in occupation since the 1980s with the exception of hers. With regards to suit No. 146/2006 instituted by the plaintiff at the High Court, 1st defendant averred that the merit of the case was not gone into and therefore same cannot operate as res judicata. Based on the forgoing, she counterclaimed for the following reliefs:
A Declaration that 1st defendant is the bona fide owner of all that piece or parcel of land situate and lying at Mile 7, Achimota, Accra -Nsawam Road, bounded on the North-West by the property of the Police measuring 102.4 feet more or less. On the North-East by the Accra-Nsawam Road measuring 195.4 feet more or less. On the South-East by a lane measuring 108.4 feet more or less and on the South-West by the property of Onamrokor Adain Family measuring 197.2 feet more or less and covering an approximate area of 0.47 acres.
Recovery of possession of the land described in paragraph (a) above.
Damages for Trespass.
Any further order or orders as the Court may deem fit.
See paragraph 1-25 of the Amended Statement of Defence and Counterclaim filed by 1stdefendant on the 24/2/2010.
On its part, the 2nd defendant also denied plaintiff’s claim. In particular, the 2nd defendant averred that it had not been able to trace the records of E. K. Tweneboah at the time the questionnaire was being answered. This was because the letter from Survey Department did not disclose the reference Lodgment Number for E. K. Tweneboah, making it difficult to trace his record in the manual environment it operated. However, after the Survey Department has provided it with the address of E. K. Tweneboah, it wrote to the latter on 11/2/2008 requesting him to provide the Registry with his particulars. This was prior to the questionnaire from the Weekend Crusading Guide Newspaper, which was received on 20th March, 2008. Subsequently, the paper after receiving the answers to its questionnaire from the Registry, carried out a publication in its 2nd May, 2008 edition on the matter.
The 2nd defendant continued that, in response to the 2nd May, 2008 publication, a gentleman who claimed to be the nephew of E. K. Tweneboah came to the Registry to show a copy of Land Title Certificate No, GA 16344 in respect of his uncle’s property. It is the case of 2nd defendant that, the availability of the particulars of the Land Title Certificate No GA 16344 enabled the Registry to retrieve the related file. It concluded that, from the filed retrieved, E. K. Tweneboah lodged an application No. 15117 with the Registry on 30th August, 1993 with a registered Deed of Conveyance dated 31st March, 1969 between Frank Kwesi Egli and Emmanuel kwadjo Tweneboah with Land Title Registry No. 941/1969 and stamping No AC 1736/1967 and root of title as 940/1969 and 416/1967 for 1.838 acres after the application was taken through the registration process and Land Certificate No. GA 16344 was issued. The 2nd defendant concluded that, there was no error on its part when the Registry stated that one Victor Ogunro whose root of title is based on a 1946 registered Deed, had priority over the plaintiff’s claim to the land. Consequently, it maintained E. K. Tweneboah’s Certificate was properly procured after going through the Land Title Registration process and therefore same should not be cancelled.
See paragraphs 1-24 of the Amended Statement of Defence of the 2nd defendant filed on 17-7-09.
After close of pleadings, the case went through a full trial and at the end of the trial, the plaintiff’s claim was dismissed as not proved hence this appeal.
At this stage, let me put it on record that, the plaintiff did not file additional grounds as indicated in his Notice of Appeal.
Also in this appeal, the plaintiff/appellant would be referred to as plaintiff and 1st and 2nddefendants/respondents as 1st and 2nd defendants.
In arguing the appeal, counsel for the plaintiff argued grounds (i) and (iii) together. He then submitted that, having complained that the judgment is against the weight of evidence, the appellate court is placed in the same position as the trial court to review the entire record of appeal and evaluate the evidence whether it would reach a different conclusion from the trial court. He referred to cases like DJIN V. MUSAH BAAKO [2007-2008] SCGLR 684,691; ATTORNEYY GENERAL V. FOROE ATLANTIC CO LTD [2005-2006] SCGLR 271 and BROWN V. QUARSHIGAH [2003-2004] SCGLR 930.
Counsel continued that, both on the facts and law, there is overwhelming evidence on record that, the trial judge wrongly applied thereby arriving at the wrong conclusion. For instance, the evidence on record shows that, the land the subject matter of the appeal was initially occupied by some mechanics who were ejected by the plaintiff by a Court Order. Therefore, the trial judge erred in law when she held that the plaintiff failed to establish her ownership of the disputed land. Secondly, the plaintiff also testified to the unavailability of her assignor because of ill health. This was not denied by 1st defendant. Thirdly, the plaintiff tendered in evidence search results from the Lands Commission, which revealed the ownership of her assignor in respect of the land in dispute having been transferred from Paul Ayeetey Tetteh to her assignor. Counsel argued that all these pieces of evidence should have excited the mind of the trial judge as to the ownership of the plaintiff’s assignor of the disputed land. He referred to sections 12 (2); 10 (1) and 11 (1) & (4) of the Evidence Act, 1975, NRCD 323 and the case of MAJOLAGBE V. LARBI & ORS. (1959) GLR 190-195 on proof in law and submitted that, the plaintiff proved her claim. On the other hand, the 1st defendant failed to proof her counterclaim. But more importantly, the 1st defendant has never been in possession of the disputed land. Lastly, the credibility of 1st defendant’s attorney was doubtful as he appeared mostly inconsistent in his testimony during the trial. Based on the forgoing, counsel for the plaintiff invited us to allow the appeal on these grounds.
On ground (ii), counsel for the plaintiff submitted that, the report by the Surveyor and his testimony was fraught with inconsistencies and that made him an unreliable witness. Nonetheless, the trial judge drew conclusions from the report and testimony of the Surveyor that, the land as contained in the site plan of the plaintiff’s assignor is different from that which is contained in the plaintiff’s site plan. The reliance on the survey report and the testimony of the Surveyor affected the findings and the judgment. He therefore invited this Court to allow the appeal on ground (ii).
Ground (v) of the appeal is in relation to fraud. Counsel submitted that, despite back-dating the Land Title Certificate of E. K. Tweneboah, the trial Judge held that it was not fraudulently procured. He argued that, the Land Title Registration Act, 1986, (ACT 152) and its Regulations LI 1341 were enacted to provide authenticity of title certificates. From the testimony of 2nd defendant, a certificate could be issued to an applicant before publication is made. Secondly the publication for the issuance of the title certificate was made several years after the issuance of the certificate and lastly, the certificate was issued despite the fact that there were people in actual possession. Counsel for the plaintiff insisted the latter’s land is different from the 1st defendant’s land. Based on the above submissions, he invited this Court to order the cancelation of the Land Title Certificate which was issued and back-dated as same was fraudulently procured or mistakenly obtained.
Counsel for the 1st defendant in response to the above submissions referred to the Evidence Act, sections 10, 11, and 12 on the burden of proof as well as case law. He then submitted that, the plaintiff traced her root of title to the disputed land to one Kingsley Adu Baffour and alleged she secured the said land by a Deed of Assignment dated 29/7/2004. This is Exhibit A. She also presented Exhibit E, a judgment to the 2nd defendant for registration. The said judgment was stated as given on 29/7/2004. However, the document plaintiff submitted to 2nd defendant for registration was a lease dated 20/7/2004. Counsel for 1st defendant observed that, no judgment was given in favour of plaintiff on 29/7/2004. Exhibit E, the Yellow Card stated that plaintiff presented a judgment for registration by 2nd defendant.
Counsel continued that, since plaintiff put her title and ownership of the disputed land in issue, she must satisfy the trial court on the preponderance of probabilities. That is to say she was required to clearly identify the land the subject matter of her claim. This she failed to do. Counsel continued that, it is true the plaintiff described the land she acquired on her indenture as well as in her Writ of Summons. However, the parcel of land she claimed to have acquired from her assignor was at variance with the land allegedly owned by her assignor as per Exhibit CE1 and CE2. This is because, her parcel of land fell within the parcel of land numbered 159 which stood in the name of E. K. Tweneboah.
But more importantly, counsel argued, the plaintiff claimed she conducted a search at the 2nd defendant’s Registry, which search indicated that the land was indeed transferred to her assignor who traced his root of title to the Onamrokor Adain Family. However, an earlier Search conducted by the plaintiff revealed the root of title of the 1st defendant’s successor in title. This earlier Search conducted by plaintiff was tendered through her as Exhibit 1. By Exhibit 15, the 1st defendant’s grantor’s grant starts right from 30/12/1961 from the Head of the Onamrokor Adain Family, C. E. Reindorf to Segbefia to Frank K. Egli dated 1/7/1967, then from Egli by a Conveyance to Emmanuel Kwadjo Tweneboah on 31/3/1969. Counsel for 1st defendant then submitted that, when Exhibit 15 and 15A are placed side by side, it is obvious that, the disputed land had earlier been conveyed to Fredrick Percival Segbefia in 1965 by the Head of the Onamrokor Adain Family. Consequently, the same parcel of land cannot be the subject of a subsequent grant in 1995 by a succeeding Head of the grantor Family through Paul Ayeetey Tetteh to Kingsley Adu Baffour, for the latter to assign his interest to the plaintiff.
Based on the above submissions, counsel for the 1st defendant submitted that the plaintiff failed to establish her claim to the land in dispute. From the forging, counsel argued, plaintiff failed to pinpoint the evidence wrongly applied against her and her claim was rightly dismissed.
On ground (ii), the acceptance and reliance on the Surveyors Report and evidence which according to plaintiff was fraught with inconsistences, Counsel for 1st defendant argued that, the trial court ordered a Composite Plan to be drawn. He continued that, a request for a Survey Plan if properly manage will ensure that a lot of evidence will be introduced by parties through pictorial presentation as will be delineated on the plan as if the Court had moved to the locus in quo. The parties complied with the Order by filing their Survey Instructions, A Composite Plan Exhibit CE1 and CE2 were prepared. He then submitted that, if the evidence of CW1 is put aside, the evidence of DW1 shows that, plaintiff’s land could not be registered because that land had already been registered in the name of E. K. Tweneboah. Counsel referred us to the case of TETTEH V. KORKOR HAYFORD (Substituted by Larbi). He urged us to dismiss the appeal on this ground as the court is not bound by the evidence of an expert opinion.
On ground (IV), that is the land assigned to plaintiff is different from that which was owned by her assignor, counsel for 1st defendant submitted that, the evidence of CW1 supports this assertion. He quoted the evidence of CW1 to support his point. Furthermore, counsel argued, since plaintiff acquired her land by assignment she would be deemed to have acquired the exact interest her alleged assignor had. Any change in size or acreage of land held by the said assignee must be explained. In this case plaintiff did not offer any explanation or shake the evidence of CW1, that a look at the site plan of Kingsley Adu Baffour and that of the plaintiff shows that there is a small difference. Counsel therefore invited us to dismiss the appeal on this ground also.
Ground (v) of the appeal is in respect of the allegation of Fraud and or Mistake.
On this ground, counsel for 1st defendant argued that, Fraud and Mistake could vitiate a certificate issued on fraudulent grounds. But in this case, plaintiff could not introduce credible and cogent evidence to shake the foundation on which the Title Certificate was issued to E. K. Tweneboah. The evidence of DW1, an official from the Land Title Registry was not shaken at all. Secondly, exhibit 15 series the file containing E. K. Tweneboah’s application leading to Exhibit 7 buttress the fact that E.K. Tweneboah’s application was lodged at the Land Registry on 30/8/1993 and published in the Spectator Newspaper on 17/2/2001. Meaning, the publication was done three years before the alleged transaction between plaintiff and her said assignor. Counsel for 1st defendant then posed this question, if Exhibit ‘7’ was backdated, were the publications, i.e. Exhibit 14 and 14A too back-dated? The answer is obviously no. He then submitted that, these were the publications that resulted in the issue of Exhibit 7 and that, long before plaintiff acquired her land in 2004, Exhibit 7 had been issued in the name of E.K. Tweneboah, who was in effective occupation and possession of the land covered by the Certificate in contention. Based on the forgoing, counsel submitted that, the plaintiff was not able to prove the allegation of fraud and mistake and his appeal on this ground too should fail.
In this appeal both counsel for the plaintiff and 1st defendant stated the law correctly as to what is required of us as an appellate court when an appellant appealed on the ground that, the judgment is against the weight of evidence adduced at the trial. Such a ground throws up the case for fresh consideration of all the facts and law by the appellate court. That is both the factual and legal arguments could be made where the legal arguments would help advance or facilitate a determination of the factual matters. See the case of OWUSU-DOMENA V. AMOAH [2015-2016] 1 SCGLR 790, 792 where their Lordships relied on their earlier decision in ATTORNEY-GENERAL V.
FAROE ATLANTIC CO LTD [2005-2006] SCGLR 271 306.
In this case, the 1st defendant counterclaimed for a declaration of title to the disputed land. Therefore, she equally bears the same burden of proof as the plaintiff on her counterclaim. See the case of JASS CO LTD V. APPAU &Another  SCGLR 265, holding (1);
“The burden of proof is always put on the plaintiff to satisfy the court on a balance of probabilities in an action for a declaration of title to land. Where the defendant has not counterclaimed, and the plaintiff has not been able to make out a sufficient case against the defendant, then the plaintiff’s claim would be dismissed. Whenever a defendant also files a counterclaim, then the same standard or burden of proof would be used to evaluate and assess the case of the defendant against the plaintiff.”
The plaintiff has complained that, certain pieces of evidence were wrongly applied against her whilst others if applied in her favour would have changed the decision in her favour. For instance, she spent huge resources to eject mechanics occupying the disputed land by a court Order. This clearly shows that the 1st defendant has never been in possession of the disputed land. Secondly, she testified to the fact that, her assignor was not available due to ill health and yet the trial judge used the fact that she was not able to call her assignor against her. Possession of land means actual physical possession of the land or the right to immediate possession of the land. Possession by itself gives a good title to land against the whole world except someone having a better legal title to possession. The mechanics the plaintiff was talking about were not the owners of the land. When the High Court ordered them to be ejected, the court was the view that the plaintiff was the owner of the disputed land.
That was when default judgment was entered in favour of the plaintiff against the mechanics on the land. The 1st defendant tried to set this default judgment aside but was unsuccessful due to some procedural lapses. Thereafter, the plaintiff tried to use this default judgment against the 1st defendant as an estoppel per rem judicata. This action eventually went before the Court of Appeal on appeal where the latter held that, the issue of ownership of the disputed land has not been gone into and therefore estoppel would not lie against the 1st defendant. See Exhibit ‘13A’, the Judgment of the Court of Appeal.
This explains why this case is being heard to determine the true owner of the land as between plaintiff and 1st defendant. On the plaintiff’s failure to call her assignor, that observation was not made in isolation. From the record of appeal, the plaintiff’s assignor got his lease at a time the land in dispute had already been granted by the Onamrokor Adain Family by its head of family, Charles Elias Reindorf. Therefore, the same land cannot be granted to the plaintiff’s assignor by the successor of Dr. C. E. Reindorf. On the application of the maxim nemo dart quod non habet, the Onamrokor Adain Family having divested its interest in an earlier transaction in favour of Fredrick Percival Segbefia in 1963 it had nothing with regard to the divested land to convey again and therefore any subsequent grant by Paul Ayeetey Tetteh the successor of C. E. Reindorf to Kingsley Adu Baffour, the plaintiff’s assignor is null and void.
Secondly, the plaintiff’s site plan and that of his assignor, there was a slight difference according to CW1. Since the plaintiff’s land was assigned to her, she is expected to have the same land as that of his assignor. Any change in size should be explained and the trial Judge held that the plaintiff offered no such explanation and therefore same should be held against her.
Consequently, these pieces of evidence were properly evaluated. Grounds (I) and (iii) of the appeal fail and they are hereby dismissed.
This brings us to ground (ii) which is the acceptance of the Evidence of the Surveyor and the Survey Report. The complaint under this ground is that, the evidence of CW1 and the Survey Report, Exhibit CE1 and CE2 were fraught with inconsistencies and the reliance on them by the trial judge occasioned a miscarriage of justice on the plaintiff. CW1 in his evidence said from the composite plan the land the parties are claiming is not the same. Under cross examination, he said one is claiming a bigger area than the other. In her judgment, the trial judge held that, this seeming inconsistency had been clarified. Secondly, CW1 observed that, the site plan of plaintiff and that of his assignor when the two are put together there is a slight difference. Since the plaintiff’s land was assigned to her, she should have the same land as that of her assignor.
Then again, there is the evidence of DW4 who claimed to be a principal member of the Onamroko Adain Family. His testimony did not establish the title of Kingsley Adu Baffour nor plaintiff’s acquisition.
From the evidence on record, the Onamroko Adain Family caused a composite plan to be drawn. This is Exhibit ‘J’. it was drawn by a private surveyor, PW1. Under cross-examination, PW1 admitted that he did not conduct a physical survey of the land in dispute but used only the site plans of the parties. The trial Judge was thus right to prefer the composite plan prepared by CW1 to that tendered by the plaintiff for the following reasons:
It came out during the cross-examination that the site plans were not provided by all the parties.
Not all the parties to the suit were privy to the survey he conducted.
From the foregoing, the trial Judge was right in preferring Exhibit ‘CE1’ and CE2’ to Exhibit ‘J’. this is because, the parties filed their respective instructions to the surveyor who prepared the composite plan Exhibit ‘CE1’ and ‘CE2’.
In any event, the evidence of the Surveyor, CW1, is an expert opinion. The law is that, a court is not bound by the evidence of an expert’s opinion. It is only a guide. The trial judge can form his own opinion from available facts on record. See the case of TETTEH V. HAYFORD (substituted by) LARBI & DECKER  1 SCGLR 417
But more importantly, even if the evidence of CW1 is disregarded, there is overwhelming evidence on record to tilt the case one way or the other.
Grounds (ii) and (iv) of the appeal fail and they are accordingly dismissed.
This bring us to ground(V) of the appeal which alleges fraud and mistake.
An allegation of fraud goes to the root of a case. The law regarding proof of forgery or any allegation of a criminal act in a civil trial is governed by section 13 (1) of the Evidence Act, 1975 (NRCD 323). That section provides that the burden of persuasion required is high and that is proof beyond reasonable doubt. In the case before us, since it is the plaintiff who is alleging fraud, the onus is on her to proof that allegation. The plaintiff in her pleadings said when she lodged her document with the 2nd defendant for registration, in answer to a questionnaire from the Weekend Crusading Guide Newspaper, the 2nd defendant indicated that there was no recorded transaction in respect of the disputed land in the name of 1st defendant. Therefore, exhibit 7, the title certificate of E. K.
Tweneboah has been backdated and same is tainted with fraud. 1st defendant denied this allegation and called an official from the Land Title Registry, DW1. This witness testified in detail the transactions on the land in dispute. He said at the time of the response to the questionnaire, the office had not been able to trace the file of E. K. Tweneboah on the disputed plot. This witness tendered the file of E. K. Tweneboah in respect of the disputed land. Exhibits ‘14’ and ‘14A’ as well as 15 series. Exhibit ‘14’ and ‘14A’ are publications in the Spectator dated 17th February, 2001. These publications were done about three (3) years before the plaintiff got her land from her assignor in 2004. Since the allegation of fraud is that Exhibit ‘7’ was backdated, the question is, were the publications too backdated? to quote counsel for the plaintiff. These publications have not been attacked by counsel for the plaintiff in any way. The publications resulted in the issue of Exhibit ‘7’, the Land Title Certificate of E. K. Tweneboah.
In Exhibit ‘14’, the application of E. K. Tweneboah to the Land Title Registry for his land to be registered is also dated 17th February, 2001. The lodgment on Exhibit ‘14’ is No. 15117. Then there is Exhibit ‘15A’, the Search Result which shows that the root of title of E. K. Tweneboah since 1969 to date has not broken. There is also the receipt for the payment of compensation of eleven thousand, five hundred thousand cedis (¢11,500.00) by Ghana Highways Authority to E. K. Tweneboah and the acknowledgement of the payment. These documents are dated 11th January, 1979 and 19th January, 1979 respectively. See Exhibit ‘6’ and ‘6A’. This confirms that as far back as 1979, E. K. Tweneboah’s name was associated with a large track of land including the land in dispute.
Exhibit ‘15A’ a search result shows that the 1st defendant’s root of title has not been broken and dates as far back as 1963. The law is that, documentary evidence should prevail over oral testimony. See the case of FOSUA & ADU-POKU V. DUFIE (DECEASED) & ADU-POKU MENSAH  SCGLR 310, holding (1) thereof, where their Lordships held that:
“It was settled law that documentary evidence should prevail over oral evidence. Thus, where documents supported one party’s case as against the other, the Court should consider whether the latter party was truthful but with faulty recollection”.
In the words of Atuguba JSC;
“Given the high evidential potency of documentary evidence in the eyes of the law, the trial judge should have given cogent reasons for doubting the veracity of Exhibit ‘2’, being the undertaken given by the late Kwaku Poku”.
Relating the case cited supra to the case under consideration, there are overwhelming documentary evidence on record which corroborates the 1st defendant’s case. 1st defendant’s grantor acquired his land sometime in 1969. The 1st defendant’s grantor got his land registered in 2001 long before plaintiff acquired her land in 2004. So even in terms of priority, 1st defendant’s grant should prevail over that of the plaintiff.
Secondly, the evidence of DW1, the official from Land Title Registry, was not shaken at all under cross examination. The trial judge was thus right in coming to the conclusion that, the plaintiff was not able to proof her allegation of fraud.
This ground of appeal also fails and it is accordingly dismissed.
From all of the forgoing, the appeal fails and it is accordingly dismissed
The judgment of the High Court together with the consequential orders are hereby affirmed.