MRS. JENNIFER KANKAM NANTWI & MARTIN KANKAM NANTWI vs JOSEPH AMENYA
  • IN THE SUPERIOR COURT OF JUDICATURE
    IN THE COURT OF APPEAL
    ACCRA - A.D 2018
MRS. JENNIFER KANKAM NANTWI AND MARTIN KANKAM NANTWI - (Plaintiffs/Appellants)
JOSEPH AMENYA -(Defendant/Respondent)

DATE:  21 ST JUNE, 2018
SUIT NO:  H1/144/2016
JUDGES:  C.J. HONYENUGA (J.A) PRESIDING, AVRIL LOVELACE-JOHNSON (J.A), HENRY A. KWOFIE (J.A)
LAWYERS:  MR. S. K. AMOAH FOR PLAINTIFFS/APPELLANT MS. JUSTINA TETE DONKOR FOR RESPONDENT
JUDGMENT

AVRIL LOVELACE-JOHNSON JA:

The present appeal has been launched by the Plaintiffs/Appellants against the judgment of the High Court delivered on 1st November 2013 on the following grounds

 

The Learned trial Judge erred by dismissing the Plaintiff’s claim and upholding the Defendant’s counterclaim.

 

The Learned trial Judge erred in accepting the Defendant’s case that the Government granted the town folks some plots of land who in turn granted same to individuals.

 

The Learned trial Judge erred by recognizing alienations made by individuals of land within a government acquisition area as validly made.

 

The Learned trial Judge erred by failing to order the cancellation of the Defendant’s Land Certificate No. GA 10930

 

The costs awarded are excessive

 

The judgment is against the weight of evidence.

 

They seek from this court an order setting aside the judgment and costs awarded by the High Court and a further order entering judgment for them instead.

 

In sum the background to this case is that the Defendants sued one Madam Edith Nyarko over the land in dispute and got judgment. It was when they attempted to serve entry of judgment that they found the present Plaintiffs in a property which had been put up on the disputed land. The Plaintiff denied any knowledge of the said Madam Edith Nyarko and the litigation with her. They then issued the present amended writ for the following reliefs

 

An order setting aside the High Court judgment in suit No. L187/2003 dated 23rd November, 2005 which was obtained by fraud.

 

An order for cancellation of land Certificate No. GA 10930

 

A perpetual injunction restraining the Defendant, his agents, servants, assigns and or anybody claiming through, for and on behalf of the Defendant from ejecting the Plaintiffs or in any way interfering with their quiet enjoyment of the property in dispute.

 

A declaration that the Plaintiffs being in physical possession of the disputed land cannot be dispossessed by the Defendant he not being the true owner thereof.

 

In their statement of claim, they trace their root of title to one Kofi Boateng from whom the mother of the 1st Plaintiff purchased the disputed land on their behalf in or about 2000/2001 but say they were given a receipt on 24th January 2002. They say their grantor acquired the land from Nii Ashong Kojo of the Nii Amoah We Okromansah Family of La. They further state that the disputed land is government land so they have not been able to register it. They again state that having been on the land without any resistance from Defendant or anybody, the latter knew or ought to have known of their presence on the land and made them parties to the earlier suit. Having failed to do that they say the judgment in that case was obtained by fraud. They also say Defendant’s Land Title Certificate was obtained by fraud or mistake. On the basis of the above, they sought an order setting aside the judgment in suit no L 187/2003, instituted by the Defendant against one Edith Nyarko, an order cancelling Defendant’s Land Title Certificate and perpetual injunction.

 

Per their pleadings the Defendant denied Plaintiffs’ claim and based his title on a 1994/95 transfer from one Madam Oboney Hyde who had a Land Title Certificate on the land which she had purchased from Numo Amoah Mensah, head of Amoah We of La Abese Accra. It was their Vendor, Madam Oboney Hyde’s title which was transferred to him per his Land Title Certificate. It is the position of the Defendant that he took possession of the land and during the earlier litigation he posted Court processes on the property on the land and effected further service on agents and workers on the land so the Plaintiffs cannot deny knowledge of the Court case. He states that even though the land is State land the Amoah We family had the right to grant a portion to Madam Hyde. He counterclaimed for a declaration that the judgment in the earlier case is binding on the Plaintiffs or in the alternative he sought a declaration of title to the disputed land, an order for recovery of possession and damages.

 

As stated earlier, the trial judge dismissed the Plaintiffs claim and gave the Defendant judgment on his counterclaim.

 

A study of the grounds of appeal filed shows that most of them could have been dealt with under the 6th ground which is that the judgment is against the weight of evidence. This because by the Supreme Court decision of Owusu-Domena v Amoah (2015-2016) I SCGLR 790 this court in the exercise of its statutory duty of rehearing under rule 8(1) of CI 19, in dealing with such an omnibus ground of appeal can consider not just factual issues but also consider matters of law. Be that as it may, I will treat the grounds as they have been filed but will deal with any number of them together as I find convenient. The parties will be referred to as Appellants and Respondent hereon.

 

Counsel for the Appellant argued the first three grounds together and counsel for the Respondent responded in like manner. I will first deal with grounds two and three which in sum make the point that the trial judge was wrong in the position he took that grants of land by the original owners of the land to the Defendant and others were valid even though the said lands had been compulsorily acquired by the State.

 

On these two issues, the position of counsel for the Appellants is that, the land in question having been compulsorily acquired by the State, anybody in possession was a trespasser and could only be dispossessed by the true owner and not another trespasser. In other words, both the Appellant and Respondents being trespassers, the Respondent had no capacity to dispossess the Appellant of the disputed land. The position of the Respondent on the other hand is that, while conceding that the disputed land forms part of State acquired land, Government had allowed the original owners to maintain ownership of portions and so these owners had the right to and consent of government to alienate these portions to persons such as the Respondent.

 

It is not in dispute that the disputed land forms part of land compulsorily acquired by the State for certain purposes. Respondent testified that although this was State land, the La Mantse had petitioned the government of the day to allow the townships within the area to remain. This was agreed to and the townsfolk have since been giving out portions of the land which had been registered by a government entity that is the Lands Commission. It was Respondent’s undisputed evidence that apart from himself about fourteen others some of whom he named as J S Addo and Charles Opoku Darko had all been given such plots and obtained Land Title Certificates on them. This evidence was corroborated by DW3, Jeremiah Obuobisa, an Assistant Lands Officer. During cross examination by counsel for Appellant he admitted that although the Executive Instrument used for acquiring the lands in question had not been repealed, it was government which in 1976 agreed that the townships could remain in the acquisition area. In the light of the undisputed evidence that the townsfolk have been giving out portions of the township after government granted them permission to stay in the compulsorily acquired area and further evidence that these grants have been processed by a government body responsible for administration of lands,( an act which implies consent on the part of government,) the trial judge’s acceptance of the above evidence and the recognition of such alienation of lands by the townspeople as valid cannot be faulted. See the cases of

 

Mensah-Moncar v Chairnartey [1972] 2 GLR 293

 

Twifo Oil Plantation v Ayisi & Ors [1982-83] GLR 881

 

cited by counsel for the Respondent.

 

In the light of the above I find no merit in grounds two and three and dismiss them accordingly.

 

Counsel for the Respondent stated at page 15 of her written submissions that had Government been a party to this suit, the Respondent would have had no chance of success. I beg to differ. After granting the La Mantse’s petition and allowing its agent, the Lands Commission to recognize grants made by the townspeople, it is my considered opinion that it would not lie in Government’s mouth to refuse recognition of the said alienation. That issue is however not one before this court.

 

I will next deal with grounds one and five. This is because the first ground faults the trial judge for dismissing the Appellants claim which would of necessity include a refusal to cancel the Respondent’s land title certificate which is the complaint in ground five.

 

It is clear that the parties are ad idem that they are disputing over the same piece of land so there is no need to belabour the issue of the identity of the said land. By their writ, the first relief sought by the Appellants is an order setting aside a judgment covering the disputed land earlier obtained by the Respondent on grounds of fraud. Particulars of the alleged fraud are given in paragraph 20 of the statement of defence as

the failure to disclose that it was the defendants who were on the land and not the elusive Madam Edith Nyarko,

Presenting the said Edith Nyarko as a trespasser when indeed no such person had anything to do with the land in dispute.

 

The evidence of the Respondent was that the first time he saw some workers on the land after he had purchased it in 1997 he was told that they were there on the authority of one Charles Opoku. They had put up a building foundation. He confronted the said Charles Opoku and work was stopped. In the year 2003, he found some other workers building on this foundation. They said they were there on the authority of one Edith Nyarko. Since the workers refused to take him to her he issued a writ and served all processes on her by posting them on the property and serving an adult on the property.

 

Fraud implies dishonesty and borders on criminality. It was the duty of the Appellants who were alleging this to prove it. They were not able to prove the particulars of the fraud they pleaded ie the Respondent deliberately failed to disclose to the Court that it was rather Appellants who were on the land and not the said Edith Nyarko who Respondent presented as a trespasser. Looking at all the efforts the Respondent made to serve the processes in the suit and the expense involved (and I take judicial notice of that), I am satisfied that the Defendant had an honest belief that the information given him by the workmen on the land about the identity of the alleged owner of the land was correct. The element of dishonesty not having been proved by the Appellants, the allegation of fraud on this issue fails.

 

Notwithstanding this finding, the Respondent was not able to connect the elusive Edith Nyarko to the Appellants and the trial Judge rightly in my opinion made a finding of fact that the judgment did not bind the Appellants. Although the trial court did not specifically make an order setting aside the judgment in question, its finding on the issue implies such an order as sought by the Appellants, It is however to be remembered that the Respondent also made an alternative counterclaim for declaration of title to the disputed land, recovery of possession, special damages perpetual injunction and costs and part of this was what he was given judgment for.

 

The second relief sought by the Appellants was for the cancellation of the Respondent’s Land Title Certificate on the grounds of fraud or mistake. Particulars of these were given in paragraph 16 of the statement of claim. The ground of mistake is easily dealt with. The Appellants say the Land Title Registry made a mistake by failing to take into account the fact that the disputed land forms part of State acquired land and so should not have been registered in the Respondent’s name. Counsel for the Appellant makes reference to the evidence of PW3 to support this position. As pointed out by Counsel for the Respondent, a reading of the evidence of this witness shows that he answered a general question put to him as reproduced below

Q. Does your office register grants made by government to individuals

A. Yes My Lord. Grants made to individuals by government is registered by our office. If a government makes a grant, we would know from the application

Q. what happens if your office registered government land for an applicant who was not granted land by government

A. That will be a mistake

 

I have already made a finding that the Lands Commission being an agent of Government could and does register lands given by the townsfolk in the circumstances such as those in which Respondent was granted his land by the Amoah We family. The learned trial judge was right when he stated that

It cannot be said that the certificates have been issued by mistake without adducing evidence from Lands Commission, who issued those certificates as having issued them by mistake”

 

The cross-examination reproduced earlier does not suffice as the kind of evidence the trial court was referring to in the statement above since it does not speak to the specific issue. The allegation of mistake on the part of the Land Title Registry by the Appellants stands unproved.

 

As stated earlier, the Appellant also pleaded fraud as a ground for seeking a cancellation of the Respondent’s Land Title certificate and gave particulars. A Land Title Certificate clothes its holder with indefeasibility subject to certain exceptions stated in section 43(1) of the Land Title Registration Law. Act 152 Fraud of course taints everything and can defeat this indefeasibility. See section 112 of the said Act which lists mistake and fraud as grounds for cancellation of a Land Title Certificate and the case of

 

Brown v Quarshigah (2003-2004) SCGLR 930

 

What evidence did the Appellants lead in support of their allegation of fraud on the part of the Respondent? Counsel for the Appellant states that evidence was led to show that the certificate was procured by fraud or mistake. I have found no evidence of fraud led. Since it is the duty of the Appellants who claim fraud to prove it their failure to do so must lead to a ruling against them on the issue.

 

In any case, the Respondent got his Land Title Certificate on 3rd December 1997 and according to paragraph 5 their statement of claim, the Appellants acquired their land in the year 2000/2001, so how could the Respondent have failed to inform the Lands Commission of their adverse possession of the land?. Regarding their grantor, Kofi Boateng, his title document states that he acquired the land in August 1997.( See exhibit 2). No evidence was led that this grantor, who did not testify established any acts of possession before the Respondent got his Land title Certificate in December of the same year for it to be claimed that the Respondent ought to have been aware of his adverse possession of the land.

 

I am satisfied that having failed to prove fraud or mistake, the judge committed no error by not making an order cancelling Land Title Certificate No GA 10930. The fourth ground of appeal fails as being without merit. It is dismissed.

 

This brings me to the fourth relief sought by the Appellants. It is clear that they consider themselves trespassers on government land. Having refused to cancel the Land Title certificate of the Respondent, he holds legal title to the land in question so a trespasser’s possessory right cannot override the legal title held by him. See the case of

 

Adjei v Acquah (1991) 1 GLR 13

 

cited by counsel for the Respondent.

 

Had the Respondent’s Land title certificate been cancelled would the Appellants have been entitled to the declaration sought that they cannot be dispossessed by the Respondent?

 

Both the grantors of the parties acquired title documents on the disputed land. Kofi Boateng, the grantor of the Plaintiffs in 1977 and Madam Oboney Hyde, Respondents grantor in September 1994 as per the statutory declaration attached to her Land Title Certificate. Clearly the grant to Respondents grantor was earlier in time. There is no disputing that the original owners of the land are the Amoah We family After granting the land to the Respondent, the said family had divested themselves of their title in the land and could not have purported to grant same to Kofi Boateng. Nemo dat quod non habet. Had the Appellants grantor conducted a search as expected of a prudent purchaser he would have found that the disputed land had been granted to Oboney Hyde. While Registration does not by itself give validity of title, it constitutes notice to the whole world. See Section 25 of the Land Registry Act

 

PW1 who says she purchased the land for the Appellants also admits to not investigating the title of Kofi Boateng at all. An imprudent land purchaser should bear the consequences of his imprudence See the case of

 

Kusi & Kusi V. BONSU (2010) SCGLR 60 @88

 

where the Supreme Court per Georgina Wood CJ (as she then was) admonishes would be purchasers of land as follows

“it is trite learning that any person desirous of acquiring property ought to properly investigate the root of title of his vendor”

 

Were one to even take the position of the Appellants that both parties are trespassers on the land, the position of the law is that the one who was earlier in possession would be entitled to possession of the land till the holder of the legal title makes a claim for it. Such a trespasser could even bring an action to protect his presence on the land against a subsequent trespasser. See the case of

 

Wiredu & Anor v Mim Timber Co Ltd (1963} 2 GLR 167-173 which describes this position as “well settled law”

 

The basis of the fourth relief sought by the Appellants is contrary to this “well settled law.” After stating that the Appellants knew that the disputed land did not belong to them, the learned trial Judge appeared to take the position that having claimed for possession and perpetual injunction, they ought to have proved their title. It is clear the Appellants consider themselves trespassers. They had no legal title for which they would seek a declaration for and rightly did not do so. It is to be remembered that the order of perpetual injunction was sought against the Respondent who they also consider a trespasser. As stated earlier, the fourth relief was for an order against being dispossessed. In that context the question of proving their legal title did not arise.

 

The Respondent testified that upon acquiring the property in question he put up a fence wall around it. He called DW2 who did the work and he also testified to this. The Appellants PW1 who purchased the land for them says at the time of purchase there was only a small house on the land in which a caretaker lived. The learned trial judge after hearing the parties stated in his judgment that he believed the case put up by the Respondent that he has since 1997 taken reasonable steps to protect his land. This means that the court accepted the Respondent’s position that he had taken possession of the land before the Appellants took possession after purchasing it in 2001/2002.

 

I have been given no good reason to disturb this finding of fact. That being so, it is clear that even if one were to take the position of the Appellants that both parties were trespassers, (and that is not this court’s position and was also not the trial court’s position) it is the Respondent who by law would be entitled to possession of the land till the true owner made a claim for it.

 

The position is not changed by the fact that the Appellants have a completed building on the land. It is clear from the evidence of DW1, the court bailiff that some processes from the court showing that litigation was on going in court in respect of the ownership of the land were duly posted on the Appellant’s structure when it was being put up. Inspite of this the Appellants chose to ignore the posted notices on their building merely because a different person was named as defendant and went ahead with construction. The posting of those notices is evidence of the Respondent resisting dispossession of the disputed land. The Appellants as trespassers cannot by the very act of trespass (that is putting up their building in the those circumstances) create a status quo in respect of the disputed land and ask the court for an order to maintain it as the quo.

 

From the above analysis, it is clear that the Appellants were not entitled to their claim and the learned trial Judge was right in dismissing it.

 

Was the trial Judge right in upholding the Respondent’s alternative counterclaim to the extent that he did? I have found that the Respondents Land Title Certificate subsists because no fraud or mistake has been proved. That is the strongest position he can be in. In addition, I have also stated that I have been given no cause to disturb the trial Judge’s finding that Respondent was first on the land and took steps to possess it. In the circumstances, I agree with the trial Judge’s conclusions on the issue at page 278 of the record where he states as follows

In this present suit, the Defendant has given evidence on how he had the land and tendered the certificate of his grantor and his own certificate. He has also explained how his grantors had the right to give him the land. I therefore accept the evidence of the Defendant as credible and declare that the defendant is titled (sic) to the land in dispute”

 

I am satisfied that the Respondent was entitled to his alternative counterclaim in the terms in which it was granted him. The first ground of appeal is therefore dismissed as lacking merit.

 

This brings me to the sixth ground of appeal which is the omnibus one that the judgment is against the weight of evidence. This ground calls for a complete examination of all evidence led and law applied to see if they support the judgment of the trial court. If they do not, then this court putting itself in the shoes of the trial court will make the correct findings from the evidence and make conclusions of its own using the applicable law. The discussion of the earlier grounds of appeal has already necessitated the performance of such exercise but Counsel for the Appellant has raised eight specific issues which will therefore be dealt with specifically.

 

Issues 2. 4, 6, and 8 have already been dealt with while considering the earlier grounds of appeal. Issues 1 and 3 relate to contradictions the court found in the evidence relating to the quantities of sand and stone the Respondent claimed he had put on the land upon its purchase. Counsel states that these contradictions so tarnished his evidence on possession that the Court should not have accepted that he had been on the land since 1997. As rightly stated by counsel for the Respondent, the trial court made reference to these contradictions in relation to the claim for special damages by the Respondent. He used these contradictions to refuse same because they had to be proved strictly. This position does not negate his finding that the Respondent had been in possession since 1997.

 

Again regarding the fence wall, the trial Judge refused to grant damages for it having been pulled down. He actually stated that the walls were still there. During the course of cross examining the Respondent it was put to him that the walls around the house were put up by his neighbours. The Respondent denied this. That question itself confirms the position of the Respondent that there was a wall. At page 178 of the ROA the following cross examination took place

Q. I am suggesting to you that you did not build any fence wall around this land A. I built a fence around my land

Q. In this case you also stated in your defence that the fence which you built was demolished by the Plaintiffs

A. That is not correct. It was the front wall which was at dwarf stage and when they went in they broke the front wall to continue their construction.

Q. Only the front wall was broken

A. Yes…………

Q. I suggest to you that the fence wall on both sides were developed by those people who had developed their land

A. Not correct…….

 

It is the act of Respondent putting up the wall which was evidence of his possession and not the pulling down of a portion of the said wall. He was unable to prove the latter and so was not granted special damages for it.

 

Issue 7 is inconsequential. It states that having found that the measurement as stated in the amended writ was a mistake, the trial judge should not have given the Respondent judgment on the land as described with the said measurements. Plaintiff was given judgment on the land described in his Land Title Certificate. It is the measurements in that document which are relevant. The mistake complained off rightly did not and should not have affected the judgment of the trial court.

 

After considering the issues stated in ground six, I am of the considered opinion that whether they were taken into account or not, they do not remove from the soundness of the judgment of the trial court. I find no merit in this ground of appeal and dismiss it.

 

No submissions were made on ground 5 which states that the costs awarded are excessive.

 

In conclusion, there is no merit in this appeal and it fails in its entirety. Costs of GH¢10,000.00 in favour of the Respondent.

 

SGD

…………………..

AVRIL LOVELACE-JOHNSON

(JUSTICE OF THE APPEAL COURT)

 

SGD

I agree                                                                         ………………

        C. J HONYENUGA

    (JUSTICE OF THE APPEAL COURT)

 

SGD

I also agree                                                            ………………….

HENRY A. KWOFIE

(JUSTICE OF THE APPEAL COURT)

 

 

 

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