IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ACCRA - A.D 2018
GYADU DART CO. LTD - (Plaintiff/Appellant)
ALBERT OKPOTI BOTCHWAY AND C. A. STEEL LIMITED - (Defendants/Respondents)
DATE: 20 TH APRIL, 2018
CIVIL APPEAL NO: H1/153/2017
JUDGES: P. K. GYAESAYOR J.A. (PRESIDING), A. M. DORDZIE (MRS) J.A, H. A. KWOFIE, JA
MR. PETER ZWENNES FOR PLAINTIFF/APPELLANT
MR. DODJI DADJO FOR DEFENDANTS/RESPONDENTS
A.M. DORDZIE, JA:
The appellant herein, Gyadu Dart Company Limited, instituted an action in the High Court Land Division claiming the following reliefs as disclosed in its amended statement of claim:
A declaration of little to a parcel of land situate at South Legon, Accra measuring 2 .626 acres.
Damages for trespass including consequential issues occasioned by destruction of the structures on plaintiff’s land.
An order of perpetual injunction restraining the defendants, their servants, agents, assigns and workers from encroaching or interfering in any way with plaintiff’s land.
The land, which is the subject matter of the action is described in the schedule as follows: “All that piece or parcel of land situate, lying and being at South Legon, Accra in the Greater Accra Region of the Republic of Ghana containing an approximate of 2.626 Acres bounded on the North-East by proposed road measuring 380.0 feet more or less on the South-East by the lessors land measuring 370.0 feet more or less on the south by a proposed road measuring 270.0, 100.0, 90.0 feet respectively more or less on the North-West by Lessors land measuring 150.0, 40.0 feet more or less”.
The plaintiff’s averments in its statement of claim are:
That it acquired the above described land from the Osu Stool in January 2006 and therefore the lawful owner of the said land.
The acquisition is documented in a conveyance dated 20th day of January 2006 executed between Nii Ako Nartei IV, Osu Mankralo and acting Osu Mantse and the plaintiff company.
Plaintiff took possession of the land and put a caretaker on and later built a fence wall and a security post on the land and enjoyed peaceful possession of the land until the defendants without any justification entered the property and destroyed part of the fence wall and security post.
The defendants claim The Lands Commission had made a grant of the same land to the 2nd defendant company.
Plaintiff further averred that its grantor, the Osu Stool had previously sued The Lands Commission over a larger area of land including plaintiff’s land in suit No.: BL 90/2004 which is pending before the High Court Accra.
In the said suit The Lands Commission was restrained by an injunction order of the court dated 26th January 2005 from leasing any part of the disputed land pending final determination of the suit.
The Lands Commission failed to comply with the injunction order. The Osu Stool therefore made several newspaper publications and issued press statements to draw public attention to The Lands Commission’s Acts. The Stool petitioned the then President of the Republic of Ghana Agyekum Kuffuor as well.
The government assured the Osu Stool of putting in place the process of de-acquisition and this assurance was published in the 27th July 2005 edition of the Daily Graphic Newspaper.
Plaintiff further averred that it suffered special damages as a result of the defendant’s activities on its land and gave the particulars as follows: i) Cost of rebuilding the fence wall and security post demolished by the defendant. ii) Loss of personal effects during the demolition.
It is worth noting that the pleading failed to provide the specific amounts plaintiff is claiming under special damages.
The defendants denied plaintiff’s claims and in answer to the above averments maintain that:
a) The plaintiff’s grantor, the Osu Stool as at the time it made the grant to plaintiff had no title to the disputed land.
b) The disputed land is part of a track of land compulsorily acquired by the Colonial Government in 1946.
c) The grant made to the plaintiff therefore was null and void.
d) The Department of Rural Housing (or Department of Rural Development) had been in possession of the said land since its acquisition by the Colonial Government.
e) The 2nd defendant legally acquired the disputed land in 2010 from the Government of Ghana and had registered its title to the land.
f) The 2nd defendant took possession by fencing the land with the co-operation of staff of Department of Rural Development without any hindrance.
g) The plaintiff twice pulled down defendant’s fence wall constructed on the land. The defendants maintain that the dwarf wall constructed on the land by plaintiff was demolished the same year it was built by National Security at the request of the Ministry of Works and Housing, when it noticed plaintiff’s encroachment on the land; and that the defendants were not responsible for the demolition of plaintiff’s wall.
h) Defendants further averred that the injunction order obtained against The Lands Commission on the 28th of January 2005 was set aside by the order of the same court dated 11th September 2008. And the same order restrained the Osu Stool from further dealing with the land.
At the close of pleadings the trial court set down the following issues for determination:
Whether or not the grant of the disputed land to the plaintiff by the Osu Stool is null and conveyed no title whatsoever.
Whether or not the grant of the disputed land by the Lands Commission to the 2nd defendant in 2010 during the pendency of Suit No: BL 90/2004 was unlawful.
Whether or not, by reason of the judgment in Suit No. SOL 21/10, the 2nd defendant and its grantor, The Lands Commission are estopped from laying any claim to any of the Osu Stool lands including the land currently in dispute.
Any other issues arising from the pleading.
The trial court resolved these issues in favour of the defendant and dismissed the plaintiff’s claims.
The plaintiff aggrieved brought this appeal praying this court to set aside the judgment of the High Court and enter judgment for the plaintiff. The sole ground of appeal canvassed by the plaintiff / appellant herein is that the judgment is against the weight of evidence adduced at the trial.
This sole ground of appeal no doubt emphasizes the provisions of Rule 8 of C. I. 19 which enjoins this court to re-hear the case so to say, by re-evaluating the evidence in its totality and coming to its own conclusion on the preponderance of probabilities. It is therefore necessary that I recount the evidence adduced at the trial in brief.
The plaintiff Company was represented by one Kwebena Nketia, the director of operations of the company. He testified on behalf of the company and said the company acquired the disputed land which is situated at South Legon in 2006 from the Osu Stool. He tendered an indenture as written evidence of the grant which is marked Exhibit A. According to the plaintiff’s witness, the plaintiff, upon acquiring the land built a fence wall and a security post on it; and put a care taker on the land as well. In 2012 the 1st defendant led a group of men to demolish portions of the fence wall built by plaintiff. Pictures of the demolition were tendered as Exhibit B. He said apart from the wall that was demolished, personal effects of the security staff were destroyed. The estimated cost of damage the plaintiff maintained it suffered as a result of defendant’s action is about GH¢12,000.
The witness admitted in cross examination that the plaintiff applied to register Exhibit A, the indenture their grantor executed with them but the application was not granted.
Plaintiff’s 1st witness who described himself as Osu Stool Lands and Property Chairman gave evidence on behalf of the Osu Stool the plaintiff’s grantor. He testified that the area the disputed land is situate is South Legon, also known as North Dzorwulu. According to PW1 the land in question is part of land acquired by the Colonial Government in 1946 for the building of the University of Gold Coast (now University of Ghana.) After the university was built, there was a vast land left. Lands Commission was leasing out the land so the Osu Stool took the Lands Commission to Court.
The court gave an injunction order restraining the Lands Commission from leasing any part of the disputed land until the final determination of the suit. He tendered the order as Exhibit G. The witness further testified that irrespective of the injunction order the Lands Commission continued to grant leases of the land. The Osu Stool is not aware that the injunction order had been set aside.
In his evidence in cross examination the witness admitted that the grant to the plaintiff was made in 2004 and around that time he visited the disputed plot and saw that the Department of Rural Development had buildings on the land but they also gave out the remnant of where the Department of Rural Development was occupying to the plaintiff.
Plaintiff’s 2nd witness said he is a member of the Osu Traditional Council. According to him when the Lands Commission failed to comply with the injunction order, they issued press statements and made newspaper publications and then petitioned the then president Agyekum Kuffuor who promised to release lands acquired by government and for which compensation was not paid to the original owners. This promise was followed by an announcement by the then Greater Accra Regional Minister I. C. Quaye at a workshop that lands that have been acquired but are not being used for the purpose they were acquired are to be returned to the owners. He tendered a newspaper publication on the said announcement as Exhibit P.
Evidence of the Defendant.
1st defendant said he is the Managing Director of the 2nd defendant Company and represents the 2nd defendant in the suit. 1st defendant further testified that he acquired the disputed land from the state through The Lands Commission in 2010. He said prior to the acquisition he conducted a search and found that it was state land, the search report is in evidence as Exhibit 3. He visited the land with officers of The Lands Commission; he saw on the land a three bedroom house, which he was told, belongs to the Department of Rural Development. He saw an uncompleted sentry on the land and dwarf wall on two sides of the land. The Lands Commission officers informed him that apart from the building which belongs to the Department of Rural Development, all other structures on the land were activities of squatters and they have been stopped from continuing any development on the land. The Lands Commission would therefore demolish all illegal structures on the land. He then put in application to be allocated the land.
The Lands Commission organized the demolition of unauthorized structures on the land and in 2011 the defendants started building their own wall; twice their walls were pulled down at night by unknown thugs. He made a report to the Lands Commission and was told the managing director of the plaintiff company one Mr. Agyemang was behind the pulling down of his walls. He met Mr. Agyemang who tried to negotiate with him to pay him the expenses he Agyemang had incurred on the land. According to the witness, he requested to see his title document on the land and what Mr. Agyemang showed him was a document that was not executed. He made him understand he did not have a good title and he should consult his lawyer.
To demonstrate that the time The Lands Commission made the grant to him, the Commission did not flout any injunction order of the court, 1st defendant tendered an injunction order of the High Court dated 11/9/2008 which restrained the Osu Stool from dealing with the land in dispute, the same order authorized The Lands Commission to carry out its statutory functions of managing the land in dispute until the final determination of the suit. In cross examination the 1st defendant emphasized that he was not responsible for the demolition exercise that was carried out on the disputed land. The witness said he went there when the exercise was going on. The then minister for the Works and Housing Ministry was at the site. When he proved that The Lands Commission allocated the land to him, the minister instructed that he compensates the Department of Rural Development whose building was on the land allocated to him, which he did.
Defendants’ 1st witness who said he works with The Lands Commission as a Senior Lands Officer confirmed that the disputed land was allocated to the 2nd defendant by The Lands Commission. He further testified that he was responsible for the inspection of the land before allocation to plaintiff was made. He did inspect the land in 2010 and 2011; in 2010 when he inspected the land there was dwarf wall on two sides of the land. There was also a single storey structure belonging to the Department of Rural Development. The grant was made to the 2nd defendant in November, 2010. It became necessary to give the defendants vacant possession, so at the request of the Regional Lands Officer a Lands Task Force comprising the police and military demolished structures on the land in 2012 so as to give vacant possession to the purchaser, the 2nd defendant.
Submissions in Support of the ground of appeal.
Learned counsel for the plaintiff / appellant in his written submission went a great length to demonstrate per decided cases what is required of an appellant who canvasses the ground of appeal that the judgment is against the weight of evidence to succeed. Learned counsel for the appellant went on to submit that the trial judge failed to resolve the primary facts, in that, the trial judge failed to evaluate the evidence put before it but relied on the submissions of counsel for the respondent in his closing address at the trial. In so doing she made the wrong findings of fact resulting in the wrong conclusions thereby causing the appellant to suffer a great miscarriage of justice.
The issue before us therefore is whether the trial judge failed to resolve the primary issues raised by the evidence put before it.
Evaluation of the Evidence
The reliefs the plaintiff appellant prayed for in the High Court are a declaration of title to a piece of land particularly described in the indorsement on the writ. Damages for trespass and an order for perpetual injunction to restrain the defendant, his servants, agents and workmen from interfering in plaintiff’s ownership of the disputed land. Thus the major issue the trial court had to determine was who has title to the disputed piece of land.
To succeed in its claim therefore, it is required of the plaintiff to adduce sufficient evidence to show that by the preponderance of the probabilities he holds a better title to the land.
Title to land is defined by B. J. da Rocha and C. H. K. Lodoh in their text book Ghana Land Law And Conveyancing (second edition) page 99 as “..the means by which a person establishes his right to land. Tile to land may take the form of possession or it may take the form of a document or a series of documents.”
The Supreme Court in the case of Mondial Veneer (Gh) Ltd. v Amuah Gyebu XV  1 SCGLR 466 emphasized the law on what is expected of a party who has the burden of persuasion in a claim of title to land and held that “In land litigation,…..the law would require the person asserting title and on who bore the burden of persuasion……to prove the root of title, the mode of acquisition and various acts of possession exercised over the disputed land. It is only where the party had succeeded in establishing those facts, on the balance of probabilities, that the party would be entitled to the claim.”
The question one would ask is whether the evidence the plaintiff placed before the trial court sufficiently discharged its burden of proof of title to the disputed land. Plaintiff’s root of title according to the evidence is the Osu Stool. However, Plaintiff’s grantor’s representative testified that the disputed land is government land acquired for the purpose of building University of Ghana. He continued to say the building of the university has ended so the vacant land is surplus land and therefore the Osu Stool is selling the surplus. It is worth quoting the questions and answers of the plaintiff’s grantor’s evidence in cross examination on this:
Q. “So knowing that the government of Ghana had acquired that land for the purpose of development of University and they did not fully use it for that development, what steps if any, did your stool take before making grants to various grantees?
A: After the school was built, the rest became a surplus land. The Osu stool started granting it out.
Q. the Stool did not find it necessary to either petition the government or find out from the government whether indeed the land was surplus or not, did it?
A: We did not”
The witness further admitted that the Osu Stool knew that a government department was occupying the land.
Q. “When you visited the site in 2004, according to you did you realise that the Department of Rural Development had buildings on the land?
A. The Department of Rural Development was occupying a part of the land and we also gave out the remaining lands to the plaintiff.”
This is a clear admission by the plaintiff’s grantor, (The Osu Stool) that at the time it made the grant to plaintiff the land did not belong to the Osu Stool but the government of Ghana. Not only that, the Osu Stool further admitted they were aware that a government institution was in occupation of the land.
These admissions demonstrate clearly that the Osu Stool’s entry into the disputed land is an unlawful act, a trespass on the part of the Osu Stool. The plaintiff had not adduced any evidence to show that before it executed the lease document with the Osu Stool it conducted any search to confirm if the Stool has a good title to the land. There is evidence of occupation and possession of the land by a government institution, which is the Department of Rural Development, a fact admitted by the plaintiff’s grantor. These are facts that should put any prudent buyer on the alert as to the genuineness of the transaction.
The Osu Stool, plaintiff’s grantor, by its own admissions has no title to the disputed land and could not have granted the plaintiff what it does not have. The maxim “Nemo dat qui non habet” (no one gives who possesses not) applies in this case; The Osu Stool cannot give what it does not have, in effect the grant plaintiff claims he got from the Osu Stool is a nullity, it got nothing. I will make reference to recent Supreme Court decisions that had emphasized the effect of the operation of the principle. In the case of Seidu Mohamed v Saanbaye Kangberee  2 SCGLR 1182 the court per Dotse JSC expressed itself on the nemo dat principle in the following words at page 1199: “This principle of nemo dat quod non habet operates ruthlessly and by it an owner of land can only convey title that he owns at the material time of the conveyance.” See also the case of Tetteh & Another v Hayford (substituted by) Larbi & Decker.  1 SCGLR 417 at 430.
PW2 tried to justify the grant made by the Osu Stool to the plaintiff by testifying that the Osu stool petitioned former president Kuffuor, the ex-president instructed the ex-minister of the Greater Accra Region Sheikh I. C. Quaye to make sure that all lands acquired by the government that are not in use be returned to the original owners.
According to him they later read in the Daily Graphic that the Greater Accra Regional ex-minister I. C. Quaye had said in a workshop that all such land should be returned to the original owners. He tendered the publication as exhibit P.
The contents of exhibit P is that the ex- minister has announced at a one day workshop that the government has returned more than 400 hectares of land acquired from chiefs and families in Accra and for which compensation had not been paid to the original owners. The contents of exhibit P further says that the ex-minister did not specify the location of the land being returned but assured the chiefs that the government was vigorously pursuing the policy to revert such land to the original owners.
This exhibit has no probative value, there is nothing to show that: i) the land in dispute forms part of the alleged 400 hectares, ii) no compensation was paid in respect of the acquisition of the university lands. iii) Above all whether this promise was ever fulfilled is not disclosed by the evidence on record.
The actions of the Osu Stool in respect of the land in dispute I consider to be very reckless, which this court frowns on. Other suits the Osu Stool claims they have pending in the courts I consider (in view of their own admissions in this suit) to be further perpetration of the lawlessness in entering government lands and abusing the court system to frustrate the proper administration of such lands. If indeed the Lands Commission flouted an injunction order of the court as alleged, the appropriate procedure to bring them to book is bringing them to court for contempt and not newspaper publications and press statements
The evidence plaintiff presented to the court on its root of title only goes to demonstrate that his grantors have no title to the land they gave him. He therefore acquired no title in the land in dispute.
The state, per its institution, Department of Rural Development has been in long possession as established by the evidence; that is sufficient notice to plaintiff as a potential purchaser, of other people’s interest in the land which he ought to have investigated before concluding any transaction with the Osu Stool. The plaintiff’s presence and activities on the land in the circumstances can only be described as activities of a trespasser or a mere squatter.
The defendants on the other hand have proved that they applied to The Lands Commission the custodian of government lands and were given a lease of the disputed land. The defendants tendered a registered lease agreement between the government of Ghana and the 2nd defendant company as exhibit 1.
An officer from the Lands Commission who testified on behalf of the defendant said he inspected the plots of land prior to its demarcation to the defendant. He found a short fence wall on parts of the land. The regional Lands Officer ordered the demolition of the short wall so that the Commission could give vacant possession of the property to the purchaser. A Land Task force which include the police and the military demolished the short wall. Plaintiff has not been able to produce any convincing evidence that it was the defendants and not the task force that demolished its structures. His claim in damages therefore fails.
From the evidence the plaintiff has failed to establish that it has valid title to the land. Its grantors have admitted the land is state land. They have no right to enter the land and make grants of same. The plaintiff in effect acquired nothing.
The conclusion the trial judge came to is supported by the evidence on record.
The appeal has no merit it is hereby dismissed.
Cost of GH¢10,000 to the Respondents.