IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL
ACCRA - A.D 2018
PETER KWABENA ACHEAMPONG - (Plaintiff/Appellant)
YAW APPIAH SARPONG AND DESMOND ADDO BINEY - (Defendants/Respondents)
DATE: 1ST FEBRUARY, 2018
SUIT NO: H1/120/16
JUDGES: CORAM: V. D. OFOE JA (PRESIDING), I. C. LARBI (MRS.) JA, M. M. AGYEMANG (MRS.) JA
LAWYERS: NII AKWEI BRUCE THOMPSON FOR PLAINTIFF/APPELLANT
In this appeal against the judgment of the High Court (Land Division) Accra, delivered on the 11th day of January 2011, the plaintiff/appellant (hereafter referred to as the plaintiff), seeks a setting aside of the judgment of the court below that entered judgment for the defendant/respondent (referred to hereafter as the defendant). The appellant prays that judgment be entered for him instead.
These matters are antecedent to the appeal.
The plaintiff, a lecturer at the University of Cape Coast, on the 12th of August 1981, allegedly purchased a parcel of land more particularly described as situate, lying and being at Nungua New Town- Accra Ghana and “bounded on the North-East by Mr. Abu’s property measuring 105 ft. more or less, on the South East by a proposed road measuring 800 ft. more or less, on the South West by Nungua Stool Land measuring 102 ft. more or less and on the North West side by Nungua Stool Land measuring 80 ft. more or less and containing an approximate area of 0.19 acres.
It was the plaintiff’s case that the land was purchased from the then Nungua Mantse: Nii Odai Ayiku IV in the name of one Kwame Nkrumah. The plaintiff alleged this Kwame Nkrumah to be his son who at the time of the transaction, was a minor.
It was the plaintiff’s case that he obtained an indenture conveying the property to Kwame Nkrumah, in 1981 and registered same. He also in 2002, applied for, and obtained a Land Certificate evidencing title to the land. According to the plaintiff, after the purchase, he went into possession immediately, and constructed a four bedroom house on the land, with a living room, kitchen, toilets and a garage. He roofed one of the rooms and placed a caretaker in it. He then built a foundational structure for a boys’ quarters. He averred that from time to time, he would visit the land whereat he had placed the caretaker: Kanbase Asoro Kwabena (otherwise referred to as Kwabena Kamboshie).
It was the evidence of the plaintiff that in 2001, he went onto the land and to his dismay, found his entire building, the four-bedroom structure demolished. The land had been completely cleared, and not even the debris from the demolition was on it. The only thing left of his presence on the land, was the foundation for the boys’ quarters. He recounted that it was while he was on the land that his caretaker showed up, and informed him that his building had been demolished by the second defendant and one “Red”. The said gentlemen had allegedly informed the caretaker that the plaintiff was dead and that he had died leaving a debt at the bank. The gentlemen then allegedly told the caretaker that the property had to be sold off to pay the debt. Thus did the two come onto the land, demolish the building and cart off the debris, leaving nothing on the land. The plaintiff noted that someone, holding himself as the owner of the property, had advertised it for sale on posters on the wall. Thus did the plaintiff find out the identity of the first defendant.
The plaintiff thus commenced suit against the first defendant seeking the following reliefs: a declaration of title to the land, recovery of possession, damages for trespass and a perpetual injunction against the first defendant and his privies. In the course of the suit the second defendant was joined to it.
The defendants denied the claims of the plaintiff. The first defendant’s case was that he bought the land in dispute through the second defendant, an Assemblyman and go-between of the Klanaa Quarter of La and that he paid ¢50,000,000 (fifty million old cedis) therefor. It was his evidence that there was nothing on the land when he made his purchase, and that he proceeded to put up a building on it. This building he has since sold to another. At the close of pleadings, eleven issues were set out for determination. After trial, the court below dismissed the suit of the plaintiff. Inter alia, the court held that the plaintiff had not made out a case entitling him to the declaration of title he sought, and furthermore, that the plaintiff was guilty of fraud with regard to the registration of the deed of conveyance, and the procurement of a land title certificate.
It is against the said judgment that the instant appeal has been brought.
The plaintiff as appellant set out nine grounds of appeal which we reproduce in extenso:
“i. The judgment is against the weight of the evidence;
ii. The learned High Court judge erred in holding that the evidence led at the trial did not support the plaintiff’s claim of the title as beneficial owner of the land;
iii. The learned High Court judge erred in holding that the plaintiff did not prove title in himself;
iv. The learned High Court judge erred in holding that the plaintiff falsely represented to the land registrar that he was the beneficial owner of the land;
v. The learned High Court judge erred in holding that the plaintiff perpetrated fraud on the land registrar;
vi. The learned High Court judge erred in holding that the evidence of PW1 on the state of the place contradicted that of the plaintiff;
vii. The learned High Court judge erred in not making a finding on the question of whether if the 1st defendant or his grantor ever had title, that title was statute-barred;
viii. The learned High Court judge erred in not holding that the 1st defendant was not an innocent purchaser for value without notice of the plaintiff’s interest;
ix. The learned High Court judge erred in refusing to pronounce on the legal effect of the judgment of the Circuit Court in the case of Nii Kotey Amli III v Rebecca Kuffour”.
The appellant argued the first five grounds together, and we are inclined to consider them together as they all essentially complain of the evaluation of evidence by the learned trial judge and can therefore be subsumed under the omnibus ground which is set out as the first. We will in our consideration of the first ground, have regard to the specific matters of complaint in the said subsumed grounds.
It is now settled that a complaint that a judgment is against the weight of the evidence invokes our jurisdiction under Rule 8(1) of The Court of Appeal Rules CI 19, to rehear the matter. The complaint invites us, being in much the same position as the trial court regarding the evidence led, to evaluate it in its entirety, and come to our own conclusions in support of, or against the trial court’s findings, see: Tuakwa v Bosom [2001-2002] SCGLR 61.We will in this enterprise, set aside findings only where we consider same to be perverse or otherwise incapable of support from the evidence, see: Oppong Kofi and Anor. v. Fofie  GLR 174, also, Kyiafi v Woino  GLR 463.
We will also in this enterprise, have regard to both the facts, as well as legal arguments that “help advance or facilitate a determination of the factual matters, see: per Benin JSC in Eric Kwame Amoah v. Owusu Domena Civ. App. No. J4/13/2014 delivered on 30th July 2014.
In his consideration of whether or not the plaintiff established that he was the owner of the land in respect of which he sought a declaration of title, the learned trial judge who properly directed himself on the burden assumed by a plaintiff who seeks a declaration of title, concerned himself at length with the documentary evidence tendered by the plaintiff, and came to the conclusion that title to the property lay not in the plaintiff, but in one Kwame Nkrumah. In arriving at this, the learned trial judge had regard to all the documentary evidence including the document of conveyance, the application for and the issue of land certificate, the application for and issue of a building permit, and concluded that everything was in the name of Kwame Nkrumah, and that there was no mention of the plaintiff. Indeed, he made reference to the fact that the only name that was not Kwame Nkrumah’s was Bediako who signed as a witness to the purported signature of Kwame Nkrumah on the lease. We have had regard to the evidence and have arrived at the same conclusion.
It is trite learning that a plaintiff who seeks a declaration of title to land bears the burden of proving what he asserts on the preponderance of the probabilities, and he does this by adducing evidence of the root of title, mode of acquisition including purchase, and acts of possession including user of the land, see: Mondial Veneer Gh Ltd v Amuah Gyebu XV  1 SCGLR 468; also Abbey and Ors v Antwi  SCGLR 17.
What was the evidence led by the plaintiff regarding these elements as he sought a declaration of title from the court below?
Both in pleading and in his testimony, he averred that he had purchased the disputed land in the name of his son Kwame Nkrumah, from the Nungua Stool in 1981.In proof of the purchase, the plaintiff tendered documentary evidence: the indenture exhibit A, a Land Certificate exhibit B, an application for a building permit exhibit C which was approved by City Engineers on 24/5/85.
The plaintiff then led evidence of his possession. His sworn testimony of how he went onto the land, cleared same, erected border posts, and put up an uncompleted four-bedroom dwelling house was corroborated by the caretaker he placed thereat: Kanbase Asoro Kwabena who gave evidence in support of his case as PW1.
Upon these pieces of evidence, as well as evidence of the building he constructed having been pulled down and the property sold to the first defendant, the plaintiff brought suit seeking the reliefs of declaration of title, as well as damages for trespass and recovery of possession.
Was the plaintiff entitled to the declaration of title he sought?
The plaintiff, in proof of the purchase of the land, tendered exhibit A the indenture in which the parties thereto: Nii Odai Ayiku IV Nungua Mantse, and Mr. Kwame Nkrumah of Accra, are recited. The deed was purportedly signed, sealed and delivered by the said Mr. Kwame Nkrumah in the presence of one Osei Bediako. To all intents and purposes, Mr. Kwame Nkrumah is the holder of the title (both legal and beneficial) to the land in dispute. The plaintiff also relied on the application for a building permit, exhibit C and a land certificate exhibit B, all in the name of Kwame Nkrumah. Lastly he tendered documents purporting to be an application for a loan which was granted to the plaintiff in reliance on the indenture and building permit in the name of Kwame Nkrumah. Who is Mr. Kwame Nkrumah whose name appears as party to the deed of conveyance exhibit A?
The plaintiff who described himself in pleading as beneficial owner of the disputed land, and sought a declaration of title to the disputed land, alleged in pleading and in evidence that he was the father of the said Kwame Nkrumah and that at the time of the purchase, Kwame Nkrumah was a minor. Since all the documentary evidence was in favour of Kwame Nkrumah (described with the prefix: Mr., in exhibit A), it was important for the plaintiff who described himself as the beneficial owner of the land purchased to establish what he alleged: that Kwame Nkrumah was his son, and that he was a minor at the point of purchase. The burden he assumed, in line with S. 11(1) of the Evidence Act 1975 NRCD323, required him to adduce sufficient evidence to avoid a ruling against him on that issue, see: also per Hayfron-Benjamin JSC in Republic v High Court, Kumasi; Ex Parte Atumfuwa and Anor  SCGR 12:“…the principle as clearly laid down in civil matters, is that the plaintiff or the appellant must lose where no evidence is led by either side, for it is the plaintiff…who is seeking relief from the court”.
We note that the learned trial judge, making inference from the plaintiff’s evidence, found that on 12th August 1981 when the purchase was made, Kwame Nkrumah must have been three years old, seven years old when the building permit in his name was approved, twenty-three years old when his title was registered, twenty-four years old when the land certificate was issued in his name, twenty-five years old when the instant suit was commenced, and thirty-one years old when the plaintiff was subjected to cross-examination at the hearing. The learned trial judge held that the plaintiff was belligerent in his responses during cross-examination when his authority to bring the instant suit was raised. Thus the learned trial judge was not persuaded that the plaintiff had led sufficient evidence to show that he had indeed made that purchase for his infant son, and this was so especially as apart from Kwame Nkrumah the lessee, it was one Bediako, rather than the plaintiff who appeared to be involved in the transaction, albeit as a witness thereto. The learned trial judge held that the plaintiff had not proven that he was the beneficial owner, or that he had title in himself which was his claim before the court below. We do not fault either the reasoning, or the conclusion of the learned trial judge as they are supportable from the evidence.
In carrying out our duty of rehearing, we have considered the entire record and come up with an especial difficulty beyond the reasoning and conclusion of the learned trial judge, but serving as a buttress thereof. It is that the plaintiff with whom the first defendant joined issue regarding his relationship with the said lessee Mr. Kwame Nkrumah has a minor son at the point of purchase, failed to provide cogent on these. Of the transaction itself, the plaintiff failed to tender a receipt or any document in which his name appeared as purchaser or one who dealt with the Nungua stool. The person whose name appeared apart from Kwame Nkrumah, one Bediako, was not called as witness to confirm the plaintiff’s involvement in the transaction. Of the father-son relationship he pleaded, the plaintiff tendered no proof, either by birth certificate, evidence of family members, or reputation of the relationship, and left the court to assume this relationship, merely repeating on oath what he set out in pleading. As was held in Majolagbe v Larbi and Ors  GLR 190 that did not amount to proof of the matter pleaded, and especially when the first defendant had joined issue with the plaintiff on that allegation.
Thus that the plaintiff paid the purchase price as never established of a primary fact upon which the presumption of a resulting trust may arise that the said Mr. Kwame Nkrumah the lessee was the plaintiff’s son - a matter that was in issue, remained unproven. That Mr. Kwame Nkrumah was indeed a minor at the time of the purchase, was also in our view, open to question in the light of the use of the title: Mr. in exhibit A.As was observed by the learned trial judge, nowhere in the deed did the plaintiff’s name appear as the one who dealt with the Nungua Stool on behalf of a minor Kwame Nkrumah. In the face of the plaintiff’s failure to tender receipts of purchase or producing a witness regarding this fact of being the one who purchased the land in the name of his son, then a minor, no wonder the learned trial judge held, that “the plaintiff literally put up the mask of his alleged son and used the name Kwame Nkrumah as and when it brought some advantage upon him with particular reference to the land in dispute.”
We note that although the said Kwame Nkrumah must have been an adult at the time of the commencement of the suit in 2003, his name did not feature in the suit, either as the donor of a power of attorney, or even a party for whom the plaintiff could give evidence. Rather, the plaintiff relied on exhibits A, B and C: documents that did not refer to himself but to Kwame Nkrumah, and evidence of apparent use of the land to secure a loan for himself: exhibits E and E1, in the prosecution of his claim. Exhibits E and E1 documents evidencing a loan transaction in which the disputed land was used as security, referred to the plaintiff as lessee thereof. This description was contrary to clear documentary evidence, and we do not consider them helpful in advancing the plaintiff’s claim for a declaration of title to land in the name of another.
In short, beyond his failure to establish that he in fact as the one who paid the purchase price, the plaintiff failed to prove any nexus between himself and Mr. Kwame Nkrumah whose name appeared on the indenture exhibit A as lessee and who apparently executed same and we only have his uncorroborated evidence that the said lessee was his minor son. For these reasons, it was not unreasonable for the learned trial judge to find that the plaintiff had failed to adduce sufficient evidence in support of his claim for declaration of title. Nor was he in error for so holding.
In this appeal, the plaintiff has somewhat departed from what he sought at the court below, in that he complained that the learned trial judge erred in not finding him to be the holder of the beneficial title to the disputed land. Indeed, the learned trial judge so held, but he also held that the plaintiff did not have title in himself. The latter was important because the plaintiff sought a declaration of title to the disputed land, and not a declaration that he was the beneficial owner of the land in dispute.
The plaintiff has in his submission as appellant, set out lengthy arguments on the law of resulting trusts, contending that as he was the real purchaser, the beneficial ownership of the land in dispute was vested in him while the said Kwame Nkrumah only held the legal title. We daresay that the said arguments are of no relevance to the instant matter.
We say so for two reasons: first, as we have indicated before now, the plaintiff failed to show that the lessee and apparent executor of the indenture: Mr. Kwame Nkrumah of Accra was his son, and that he it was who had paid the purchase price for the disputed land in the name of the latter when he was a minor. Second, in our judgment the arguments regarding a resulting trust, are only good as between the holder of the legal title and the beneficial owner in respect of whom a resulting trust is presumed, being the real purchaser, see: Ussher v Darko  1 GLR 476, also Kwantreng v Amassah  1 GLR 241.Where the real purchaser(a parent), made a claim as to his beneficial ownership, the holder of the legal title (the child),could then as between himself and the former, seek to rebut that presumption of a resulting trust by proving a gift or advancement, see: Kwantreng v Amassah (supra) also Osmond v Hughes  GLR 405;.In the instant matter, the said arguments regarding a resulting trust were irrelevant and incapable of securing for the plaintiff as against a third party, what the plaintiff sought in the suit which is: a declaration of title to the disputed land. Without a doubt, it was the name appearing as lessee on the indenture, and as executor of the deed, as well as the name appearing on other documents such as the Land Certificate exhibit B that was evidence of title in a suit against a third party for a declaration of title.
As aforesaid, we are wholly in agreement with the learned trial judge that the plaintiff did not succeed in making out his claim for a declaration of title.
We are also in agreement with the learned trial judge regarding the claim for trespass and recovery of possession. It is our view that as the plaintiff was not able to prove his title, he at best proved a possessory right which “only holds good against someone who cannot show a better title…”
As against Kwame Nkrumah whose title by purchase was acquired in 1981, the plaintiff who failed to establish any nexus between himself and that purchaser was a squatter, see: B.J da Rocha and CH.K Lodoh’s Ghana Land Law and Conveyancing 2nd Ed. 100, 101.
Thus between Kwame Nkrumah whose title was acquired prior to the judgment between Nii Kotey Amli III v Rebecca Kuffuor, that judgment would at best vest the reversion in that family: the Klanaa Quarter of La; it would not do away with the interest of Kwame Nkrumah acquired before the judgment, see: Amefinu V. Odametey and Anor  2 GLR 135.
For this reason, between Kwame Nkrumah and the first defendant(the grantee of the La Klanaa Quarter), Kwame Nkrumah’s recognised title acquired in 1981 would be superior to first defendant’s
But not so the plaintiff in relation to the first defendant. Not having proven his title to the land, the plaintiff’s possessory right was not superior to that of the first defendant which was acquired from the family adjudged to be owners: Nii Amli Kotey’s Klanaa Quarter of La.
It is for this reason that the act of the first defendant in going onto the land upon the strength of his grant from the Nii Kotey Amli family did not amount to trespass, for the plaintiff’s possessory title was good against the whole world except against the true owner or one who could prove a superior title, see: Mensah v Peniana  1 GLR 337, also, Summey v Yohuno and Ors  1 GLR 160.
Nor could the plaintiff recover possession from the first defendant whose right to the land as between himself and the plaintiff (not Kwame Nkrumah), was superior.
With regard to the second defendant also, we are not inclined to set aside the findings of the learned trial judge regarding trespass to land in the possession of the plaintiff. This is because the learned trial judge in our judgment, correctly evaluated the evidence of PW1 having regard to its shifting nature in the face of his evidence before the Circuit Court in the criminal case where the second defendant was accused of causing damage to the plaintiff’s property. In that criminal case in which the second defendant was acquitted and discharged, the evidence of PW1 regarding events that had happened shortly before the prosecution, exonerated the second defendant. That was not the case before the court below. The discrepancy in the two pieces of evidence regarding the same event, led the learned trial judge to discountenance the testimony of the said PW1. That in turn, led to his holding negating trespass, which finds support from the evidence led. Having found thus, and being mindful of the caveat that an appellate court should be slow to set aside the findings of a trial court which has the duty to make primary findings of fact from the evidence led, see: Ampomah v. Volta River Authority [1989-90] 2 GLR 28, we are not inclined to disturb same.
With regard to the finding of fraud by the learned trial judge, we are unable to agree therewith. When on the showing of the plaintiff, Kwame Nkrumah was a minor at the point of purchase, it is manifest from exhibit A (which describes Mr. Kwame Nkrumah of Accra as the lessee who executed the deed),from exhibit B the Land Certificate which is in the name of Kwame Nkrumah, and from exhibit C which purported to be his application for a building permit (which was not authorised by the adult Kwame Nkrumah),that the plaintiff had misrepresented the fact that it was not Kwame Nkrumah who had done all that was involved in those documents. Even so, for a finding of fraud to have been made on the facts relied on by the learned trial judge, the said facts should have been pleaded as amounting to fraud, see: Nti v Anima [1984-86] 2 GLR136 and proven on the criminal standard of proof beyond a reasonable doubt, see: S.13 (1) of the Evidence Act NRCD 323; also: Fenuku v John Teye [2001-2002] SCGLR 985. In the instant matter, although the learned trial judge held that the matters pleaded as constituting fraud (the non-disclosure by the plaintiff to the Land Title Registry that there was someone asserting a right adverse to his), did not in fact amount to fraud, he nonetheless held that the plaintiff was guilty of fraud. Regarding this he held that the “manner in which the plaintiff represented himself to the Land Registrar as the proprietor in the person of Kwame Nkrumah”, the fact that he did not obtain the consent of the said Kwame Nkrumah who in 2002 had to be an adult, and the claims made by the plaintiff in the suit as well as his answers in cross-examination, made it manifest that he represented to the land registrar falsely, that he was the beneficial owner of the land in order to get acceptance”. He then concluded that as the plaintiff did not represent himself as the guardian of an infant or the agent of another proprietor, his misrepresentations constituted fraud perpetrated by him on the land Registrar.
In Apea v Asamoah [2003-2004] SCGLR 229, it was held that although fraud must be pleaded, the court ought not to shut its eyes to fraud which although unpleaded, was manifest from the record. Even so, it seems to us that the finding of fraud by the learned trial judge was not anchored on evidence strong enough to lead irresistibly to such a finding. Explaining the standard of proof of crime in civil cases, Brobbey JSC stated in his Practice and Procedure in the Trial Courts and Tribunals of Ghana that: “…where allegation that a crime has been committed is made in a civil trial, the court can rely on that allegation only after the allegation has been proved to the same degree as proof in a criminal case. In other words, the evidence led in proof of that allegation should be such that the court should justifiably be able to convict on that crime if it were trying it in criminal proceedings.”
That there were misrepresentations by the plaintiff in exhibits A, B, C and G could not be gainsaid, but as to whether they were fraudulent in nature and intent could not be inferred from the said pieces of evidence the learned trial judge relied on. By reason of the fact that the specific matters upon which his finding of fraud were based were not pleaded as particulars of fraud so that the plaintiff never had opportunity to explain his actions, the learned trial judge erred in making such finding of fraud, see:
Amoah v Arthur [1987-88] 2 GLR 87.
It will therefore be set aside.
Regarding the other grounds, vi, vii, viii, ix, we will make short work of them seriatim.
Was the learned trial judge in error when he failed to make a finding on the question of whether if the 1st defendant or his grantor ever had title, that title was statute-barred?
The expression statute-barred is used when by reason of time limits for seeking redress set forth in the Limitation Act 1972 NRCD 54has been exceeded, a person is denied the right to enforce a claim or vindicate a right. It is a limitation placed on suits. The Limitation Act sets twelve years as the time limit for an action relating to recovery of possession of land. Limitation of actions including an action for recovery of possession, has been described as a shield, not a sword, that is to say, it is not used to commence an action, but is an effective bar against a suit brought by an owner of land to assert his right in the land which is brought after the limitation period, “limitation does not really create a title in the squatter it merely prevents the dispossessed owner from enforcing his title”, see: BJ Da Rocha and CHK Lodoh’s Ghana Land Law and Conveyancing 319.
The defendants herein were sued by the plaintiff for a declaration of title and recovery of possession. They did not make a counterclaim which by definition would have been a separate and distinct action, see: Fosuhene v Atta Wusu 1 SCGLR 273. For this reason, the fact of whether or not their right to bring suit to vindicate their right or interest in the disputed land is extinguished by their inaction for the period of over twelve years, was not a fact in issue. It is for that reason that the learned trial judge did not make a finding of fact regarding same, and he was not in error.
Having found that the present plaintiff’s claim for declaration of title cannot succeed, and having found that the plaintiff failed to prove the relationship he alleged between himself and Kwame Nkrumah to whom the land was conveyed by the Nungua Stool in 1981, the matter regarding whether or not the first defendant was not a bona fide purchaser for value without notice of Kwame Nkrumah’s interest is not relevant to the present suit.
Ought the learned trial judge to have pronounced on the legal effect of the judgment of the Circuit Court in the case of Nii Kotey Amli III v Rebecca Kuffour?
We will say that perhaps the learned trial judge did not consider that a pronouncement one way or the other by him was relevant to the determination of the suit before him, and perhaps we would not either, if it had not been set out as a ground of appeal. From the evidence of the first defendant, he held the belief that the judgment in the civil case between Nii Kotey Amli III and Rebecca Kuffuor completely did away with any interest in the land prior to the judgment. It is for this reason that he tendered the said judgment as exhibit 4, and relied on it as part of his defence. Nii Kotey Amli III, the plaintiff in that suit who got judgment also gave evidence in support of the first defendant’s case and testified that he traced his title to the said judgment. He added that he had in fact got judgment in many suits relying upon the said judgment. The appellant herein contends that the said judgment was between Nii Kotey Amli III and Rebecca Kuffuor and that it did not affect the interest of anybody else in land not the subject of that suit.
The said judgment was upon a suit brought by the plaintiff therein for a declaration that a lease obtained by the defendant from the Nungua Stool was void. Thus the suit also sought the recovery of possession of the land purportedly demised under that lease. There is no gainsaying that the judgment in respect of that particular land the subject of Rebecca Kuffour’s purported lease from the Nungua Stool was a judgment in rem in respect of that particular parcel of land: see Black’s Law
Dictionary 8th Ed 2466. “A judgment that determines the status or condition of property and that operates directly on the property itself. The phrase denotes a judgment that affects not only interests in a thing but also all persons' interest in the thing”, and so it would have been (with regard to the land the subject of the lease that was set aside by that judgment), but for the far-reaching holding of the trial judge in that suit that declared all Oteele and Bawaleshie lands the property of Nii Kotey’ Amli III’s Klanaa Quarter of La. That judgment was not appealed against. No doubt the said judgment in which such a holding obtained, became authoritative with regard to title of the said lands when it was not appealed against by persons affected by it, especially the Nungua Stool. That is as far as we will take this matter.
To recapitulate, we have held that in so far as the learned trial judge held that the plaintiff was not entitled to a declaration of title to the land described in the writ of summons, to recovery of possession or to damages for trespass, we are in agreement with him and we do not find any error in his determination. With regard however to his finding that the plaintiff’s conduct amounted to fraud perpetrated on the Land Registrar, we are inclined to set aside the finding of the learned trial judge and do so accordingly.
The appeal is dismissed in substance.
No order as to cost.
MABEL M. AGYEMANG
(JUSTICE OF THE APPEAL)
IRENE CHARITY LARBI (MRS).J.A.
This is an appeal from the High Court Land Division, Accra dated 11th January, 2011 which dismissed the Plaintiff’s action with costs of Gh₡1,000.00 to each of the two Defendants.
The fact in dispute as well as the respective cases of the parties have been stated accurately in the opinion read by my learned sister Mabel Agyemang JA. I agree with them and adopt them as my own. I also agree with her opinion and I only wish to add to it.
It is settled law that documentary evidence should prevail over oral evidence. In the instant case, the Plaintiff’s main claim in the High Court is for declaration of title to the land described on the writ.
The Plaintiff in evidence tendered Exhibit ‘A’ an Indenture made on 12th August 1981, between Nii Odai Ayiku IV, Nungua Mantse as Lessor and Kwame Nkrumah as Lessee. He also tendered the Land Certificate issued to Kwame Nkrumah on the 5th October, 2002 as Exhibit ‘B’. He said he cleared the land and erected four (4) pillars at the corners and proceeded with processing of documents. He tendered a building Permit Application Form approved on the 24th June, 1985 in evidence as Exhibit ‘D’. He said he put up a four (4) bedroom house up to roofing level and put a caretaker called Kwabena in occupation.
In 1996, he used the building as a collateral for a loan from the Agricultural Development Bank Limited (ADB) and tendered an “Approval of Loan Facility” note dated 21st November, 1996 and a Written Consent to Mortgage Property situate at East Legon dated 27th September 2000 as Exhibits ‘E’ and ‘E1’.
We noticed that, apart from the Exhibits “E” and “E1” all the documents tendered by the Plaintiff namely the Lease, Land Certificate, Building Permit and the Building Plan all had the name of Kwame Nkrumah as the owner. Further, the Search Report on the land (Exhibit “G”) the Notice of Application for Registration of title to Land are also in the name of Kwame Nkrumah.
Section 11(4) of the Evidence Act, 1975 [NRCD 323], puts the obligation in civil proceedings on a party who asserts to produce sufficient evidence so that on all the evidence, a reasonable mind could conclude that the existence of the fact was more probable that its non-existence.
See: FOSUA & ADU-POKU VRS. DUFIE (Deceased) & ADU POKU-MENSAH  SC GLR 310; KUSI& KUSI VRS. BONSU  SC GLR 60
JASS CO. LTD. & ANOR VRS.APPAU & ANOR. SC GLR 265.
That apart, the Plaintiff in an action for declaration of title to land must be able to establish by cogent evidence his own case before he can take advantage of any weakness in the Defendant’s case which supports his claim to strengthen his case.
See: AIKINS VRS. DAKWA  58 GMS 187.
From all the decided cases supra, it is clear that the Plaintiff in such a case has to meet the standard of proof on the balance of probabilities to require a consideration if any in the Defendant’s case.
In paragraph 1 of the Plaintiff’s statement of claim, he averred that:
“The Plaintiff is a Lecturer at the University of Cape-Coast and the beneficial owner of the property
known as……………………which said property was bought by the Plaintiff on the 12th day of August, 1981 in the name of Plaintiff’s son at the time by name Kwame Nkrumah…………………” .
Osborns Concise Law Dictionary, 8th Editiondefines a beneficial owner as:-
“The person who enjoys or who is entitled to the benefit of property being entitled at law and equity”.
The Plaintiff in his evidence had sought to raise a presumption that he was the true owner of the land having purchased it in the name of his son who was at the time of purchase a minor.
In order for the court to determine title, the court had to make a finding relating to the one who provided the money for the purchase of the land. Significantly, the court will expect the Plaintiff to tender the receipt covering the money he alleges he paid to purchase the land. This, the Plaintiff failed to do. The Plaintiff also failed to produce any Birth Certificate to support his assertion that he is the father of Kwame Nkrumah. Concerning the Lease “Exhibit A” which the Plaintiff was using as a trump card in support of his assertion that he purchased the land for his son, he under cross-examination dented his own case when he distanced himself from any involvement in the preparation and execution of the said Exhibit ‘A’ at page 110 of the record of Appeal as follows:-
“Q: Take a look at Exhibit ‘A’, it does not bear you signature, does it?
Q: Who signed Exhibit “A” for and on behalf of the Lessee?
A: If you see page 1 of Exhibit “A”, you see the name of Bediakoh, he signed it.
Q. I am suggesting to you that per Exhibit “A”, the said Bediakoh you are referring signed as witness but I am asking you that who signed for the Lessee?
A: I have said that the person who was there and who did all these things was Mr. Osei Bediakoh”.
The said Mr. Osei Bediakoh was thus in our view, a material witness who could have significantly assisted the case of the plaintiff had he been called as a witness. The Plaintiff could also have called the mother of Kwame Nkrumah as witness and even if for some reasons she could not be available, his alleged son, Kwame Nkrumah could have been so called as a witness to buttress his assertions. Needless to say that he could join Kwame Nkrumah as a Plaintiff and/or procure a Power of Attorney from him.
Per Ollennu J (as he then was) in MOJALAGBE VRS. LARBI 1 GLR 190 at 192,
“Proof in law is the establishment of facts by proper legal means where a party makes an assertion capable of proof in some way eq. by producing documents, description of thing, reference to other facts, instances or circumstances and if his averment is denied, he does not prove it by merely going into the witness box and repeating that averment on oath, or having it repeated on oath by his witness. He proves it by producing other evidence of facts and circumstances, from which the court can be satisfied that what he avers is true”.
The Supreme Court in the case of T.K. SERBEH & CO. LTD. VRS. MENSAH [2005-2006] SC GLR 341 crystalized proof in law as follows:-
“For, however credible a witness may be his bare affirmation on oath or the repetition of his averment in the witness box cannot constitute proof”.
On the issue of trust which was introduced into the submission of counsel for the plaintiff perhaps in an attempt to salvage the devastation caused by the lack of proof to support the Plaintiff’s case as the beneficial owner, we are of the view that it was neither pleaded nor is it applicable in this case.
Counsel quoted correctly from the Learned Authors BJ da ROCHA and CH Lodoh in their book, GHANA LAND LAW AND CONVEYANCING 1995 Edition at page 55 on TRUSTas follows:-
“The basis of the law of trusts.is that there is a split between the legal and the equitable ownership of land. The legal owner is treated as a mere trustee for the equitable owner who is the real beneficiary. In such a situation equity protects the beneficial owner and will not permit the legal owner to deal with the property in a manner adverse to the interest of the beneficiary.
Trust may be expressly created or may arise by implication of law. The latter kind of trust may be implied or resulting trusts or constructive trust.
At page 57 the learned authors supra wrote under “Implied Trust” thus:
“(2) Resulting Trust: In certain circumstances equity will imply what is known as resulting trust.
The following are situations in which resulting trust may be implied.
a) Where one person purchases property in the name of another (Emphasis mine).
As we earlier indicated, no evidence apart from the oral was placed before the court to convince the court that the Plaintiff was the one who in fact paid the purchase price for the land.
We are not unmindful of the evidence of the Plaintiff that he used the title documents to secure a loan from the Bank. In our view the Exhibits “E” and “E1” which the Plaintiff tendered in support of his evidence in respect of the loan are not only self-serving but raises other issues as to how a Bank could accept documents covering landed property in the name of Kwame Nkrumah when the said Kwame Nkrumah who is the holder of legal title to the land is not a guarantor of the loan. The least said about the loan, the better.
Needless to add that resulting trust would arise where the matter to be resolved would be between the one who paid the purchase price for the property and the intended beneficiary.
The Learned Trial Judge in the concluding paragraph of his judgment held that “the Plaintiff has failed to produce or introduce sufficient evidence to prove by a preponderance of probabilities that he is entitled to the reliefs he claims by the endorsement on his writ against the Defendants”.
This being an action of declaration of title to land and recovery of possession, the issue as to what a Plaintiff must do in order to succeed is amply set out in Section 10, 11 and 12 of the revised Evidence Act, 1975 [NRCD 323].
Proof by a preponderance of the probabilities test is clearly defined in Section 12 of the Evidence Act supra which states;
“(1) Except as otherwise provided by law, the burden of persuasion requires proof by a preponderance of the probabilities.
(2) “Preponderance of the probabilities” means that degree of certainty of belief in the mind of the tribunal of fact or the court by which it is convinced that the existence of a fact is more probable than its non-existence”.
(3) Thus the holding of the Learned Trial Judge that the Plaintiff’s claim of title as the beneficial owner of the land is not supported by the evidence he led cannot be faulted.
IRENE C. LARBI (MRS).
(Justice of Appeal)
I have always held the view that where opinions are divided as to result in a dissenting judgment then we should expect, sooner or later, developments in certain areas of the law and its applicability as the case climbs up the judicial ladder. It is a sign of agile minds not ready to see justice pass by without critical enquiry into the facts and circumstances of the case. My able and distinguished sisters have delivered their judgments without any equivocation and though admittedly they have been very incisive in their analysis of the facts and applied the relevant legal authorities my choice of dissent was still to see the facts and circumstances of this case from a different perspective. It is to be noted that such opportunities scarcely come by and if they do they should be welcomed.
Now what we have is an appeal against the trial High Court judgment delivered on the 11th of January 2011 refusing plaintiff/appellant’s claims endorsed on the writ of summons issued on the
25th of June 2007. He is seeking reversal of that judgment and his claims granted instead. I will refer to the parties as plaintiff and defendant as they were in the trial court.
The original writ of summons issued by the plaintiff was on the 12thof September 2003 but this was by order of the court amended and filed on the 25th June 2007. The said writ sought a declaration of title to an 0.19 acre land located in the East of Legon. Other reliefs sought by the plaintiff were the usual ancillary reliefs of damages for trespass, recovery of possession and perpetual injunction seeking to restrain the defendants from in any way interfering with the said plot. At the close of pleadings the case the parties put before the trial court could be briefed as follows
It is the case of the plaintiff that in August 1981 he obtained a lease from the then chief of Nungua, Nii Odai Ayiku IV and got it stamped as No AC4111/82 and registered as No 3253/1984. He subsequently applied to the Land Title Registry where he was issued a Land Title Certificate No GA 17459. On purchase of the land he went into possession immediately and erected corner pillars. In 1985 he started construction of a building and got to roofing level but had to stop because of some disagreement with the contractor. He however roofed one room for use by his caretaker. In 1994 he used this property as collateral for a loan from the Agricultural Development Bank. Somewhere in 2001 he visited the land to find that the whole structure he had erected had been raised down and a new one was being erected in its place. On enquiry he was told it was the 2nd defendant who caused the building to be demolished and the land sold to the 1st defendant.
He denies plaintiffs claim to the land and averred that he bought the land, then a virgin land, located in an area originally known as Oteele, from the Klaanaa Quarter of La in 1997.The quarter has a judgment in its favour declaring title in the area, including the land in dispute, in the Quarter. This judgment has been plotted by the Lands Commission in its records. After purchasing the land he lodged the lease document with the lands commission and was given No AR/3605/2001. 1st defendant claimed that he was a bonafide purchaser for value without notice of any adverse claim and had constructed a dwelling house on the land without any hindrance from anybody. In respect to the Land Title Certificate the 1st defendant alleged the plaintiff procured it fraudulently and particularized the fraud as follows:
“1. The plaintiff failed to disclose to the Land Registry the adverse claim of the defendant
2. The plaintiff failed to disclose to the Land Registry that the defendant was in possession having a building on the Land”.
The pleadings disclose that he is the Assemblyman of the area. He denied the plaintiff has ever had any building on the disputed land which he demolished and sold to the 1st defendant. It is his case that all he did was to lead the 1st defendant to the chief of the Klaanaa Quarter where the 1st defendant was sold the land by the Quarter itself. The 1st defendant has since put up a residential property on the land. He admitted he was tried for pulling down the plaintiff’s structure on the land but he was acquitted and discharged.
Plaintiff offered a reply to these defences. He averred that even if the Klanaa Quarter owns the land in dispute they are caught by the Limitation Act since he has been in possession of that land since 1981 and had not been challenged by anybody. To the claim by the 1st defendant to having put up a completed residence on the land the plaintiff alleged that the 1st defendant continued building at the time the case was in court.
I will present the gist of the evidence of the parties and their witnesses for a clearer appreciation of this opinion.
The Plaintiff testified that he took the lease, exhibit A, from the chief of Nungua in 1981. He went into possession immediately by erecting corner pillars after clearing the land. In 1985/86 he put up a four bedroom house to roofing level and placed a caretaker in one of the rooms. He got the lease registered in 1984 and subsequently got a Land Title Certificate in 2001. In the year 2001 he visited the plot only to realize that the whole of his uncompleted building had been demolished and the debris evacuated leaving the foundation. Another uncompleted building was erected in the corner where he had his foundation of a boy’s quarters. Eventually when he saw the caretaker he got to know it was the 2nd defendant who caused the demolishing of the building and sold the land to the 1st defendant. He reported to the police who prosecuted the 1st defendant but he was acquitted and discharged. All documentation concerning the land and the building were in the name of his son Kwame Nkrumah. He said he bought the property in the name of the son and that he is a beneficial owner. Elsewhere he mentioned that he bought the plot for his son. According to the plaintiff, in 1996 he even used the uncompleted building as collateral for a loan from the Agricultural Development Bank. He tendered exhibits in proof of this loan arrangement.
His caretaker, Kanbase Asoro Kwabena, his only witness in the case, testified that he was the caretaker of the plaintiff on this disputed land and served in that capacity for more than 20 years. He testified that when he met the plaintiff on the land he had a four-bedroom structure built up to roofing level. One of the rooms was roofed for his use. He was on the land when one Red and the 2nd defendant came to tell him the plaintiff was dead and buried and that they were there to sell the property to pay the debts the plaintiff owed the bank. He told the court he was a prosecution witness in the criminal trial of the 2nd defendant.
1st defendant on his part told the court he got a lease from the Kotey Amli family in 1997 after conducting a search at the Lands Commission which disclosed his grantors, the Kotey Amli family, had a registered judgment over the land. He said when he bought the land it was bare and had no knowledge the plaintiff had any interest in the plot. As to whether he saw in the search report the name Kwame Nkrumah he said yes. On his allegation of fraud he told the court he made that allegation because the plaintiff knew he was on the land but did not inform the Title registrar before the Title Certificate was issued to him.
As is usually the case of grantors, Nii Kotey Amli testified as the head of family of the Kotey Amli family in defence of his title and tendered a circuit court judgment recognizing their ownership of the lands in Oteele, which includes the land in dispute. He testified that on the basis of this judgment they have granted several pieces of land to purchasers and successfully defended these grants.
Even though 11 issues were set for trial the trial judge addressed few of them in his judgment and gave his reasons for taking that course. In deciding to ignore consideration of some of the issues set for trial the judge gave his reasons at page220 of the record of appeal
“Applying these principles to the evidence and circumstances of the instant case someof the issues adopted for trial are rendered merelyhypothetical and academic. I therefore refuse to make pronouncements on the legal effect of the judgment of the circuit court in the Nii Kotey Amli III r Rebecca Kufour case and the effect of the Statutes of Limitation on the interest of the defendant’s grantor in the land indispute: that is issue (c) and (d)”.
At page 209 of the record he gave reasons why the plaintiff’s claim cannot be granted. He stated:
“In the instant case the plaintiff’s major claim against the defendants is one for a declaration of title to the piece or parcel of land described in paragraph 1 of the statement of claim. He therefore assumed the burden of proof to satisfy the court on a balance of probabilities that he was entitled to that declaration in his favour”.
See Jass Co Ltd & Another vrs Appau (2009)SCGLR265 at 270.
It was no coincidence thereforethat the first issue set down for trial in the suit was the question whether the plaintiff was the owner of the land in dispute. In his evidence on the issue however the plaintiff rather ended up demonstrating by documentary evidence that he did not own the land and that the ownership or title vested in one Kwame Nkrumah whom he alleged is his son. The plaintiff for instance tendered a lease, Land Certificate, a building permit, a building plan as exhibits A,B,C and D respectively which all had the name of Kwame Nkrumah as the owner. He further tendered as exhibit F a search report on the land exhibit G, the notice of the application for registration of title to the land each of which was also in the name of the same Kwame Nkrumah. His explanation for that as pleaded in paragraph 1 and 3 of his statement of claim was that he bought the land in the name of his said son and obtained all the title deeds in his son’s name. His evidence is that he bought the land at a time when the son was a minor……”
At page 2011 of the records he concluded refusing plaintiff his claim for declaration of title. He said
“The evidence of the plaintiff aforesaid did not in fact suggest a claim of title or ownership of the land in himself. He has not proven himself to be the owner of the land and is therefore not entitled to a declaration of title to same”.
He found the current age of the plaintiff as 31, that the son was born in 1978, the plaintiff got the lease of the disputed plot when the son was 3 years old, he applied for registration of the land when the son was23 years, he got the Land Title when the son was 24 years and issued the instant writ when the son was 25 years.
In respect of the Land Title Certificate, because it was the plaintiff who applied for it and not the son, the trial judge held him for having misrepresented information to the Title Registrar and by that procured the certificate fraudulently. This is the way he put it:
“Such misrepresentations made knowingly by the plaintiff to the land registrar in order to obtain the Land Certificate constituted fraud perpetuated by him on the Land Registrar and I hold as such on the issue”.
One other area the trial judge found fraud against the plaintiff was when the plaintiff testified that it was one Mr. Bediako who signed for the lease document (exhibit A) from the Nungua Chief. The trial judge reasoned that since Bediako was a stranger to the lease it was wrong for him to have executed the lease and the failure of the plaintiff to disclose this fact to the Land Title Registrar during the registration processes was also fraudulent.
He then proceeded to examine the plaintiff’s claim for damages for trespass. After considering the evidence of both parties and their witnesses the trial judge concluded against the plaintiff that the evidence before him was not sufficient for a finding of possession in favour of the plaintiff and that the 1st defendant bought the land when it was bare. Indeed he rejected plaintiff’s evidence that he had a building on the land which was demolished by the 2nd defendant.
It is the foregoing conclusions of the trial judge that the plaintiff is not content with and is therefore on appeal to this court. He has 9 grounds of appeal which I reproduce as follows:
“1.The judgment is against the weight of evidence
2. The learned trial High Court Judge erred in holding that the evidence led at the trial, did not support the plaintiff’s claim of the title as beneficial owner of the land.
3. The learned judge erred in holding that the plaintiff did not prove title in himself.
4. The learned Judge erred in holding that the Plaintiff falsely represented to the land register that he was the beneficial owner of the land.
5. The learned Judge erred in holding that the Plaintiff perpetuated fraud on the land title registrar.
6. The learned Judge erred in holding that the evidence of PW1 on the state of the place contradicted that of the Plaintiff.
7. The learned High Court Judge erred in not making a finding on the question of whether if the 1st defendant or his grantor ever had title that title was statute barred.
8. The learned Judge erred in not holding that the 1st defendant was not an innocent purchaser for value without notice of the plaintiff’s interest.
9. The learned judge erred in refusing to pronounce on the legal effect of the judgment of the Circuit Court in the case of Nii Kotey Amli III Rebecca Kufour”.
I must mention that the defendants did not file any submissions for our consideration.
Counsel for the plaintiff in arguing the appeal decided, rightly in my view, to argue grounds (i) to (iv) together. All the said grounds touch on the findings of the trial judge that the plaintiff was not the owner of the disputed plot. It was counsel’s submission that the plaintiff, true to his pleadings, had maintained that he bought the land in the name of the son Kwame Nkrumah and that he plaintiff was the beneficial owner. According to counsel using the name of another person to purchase land was not unknown in legal circles. He drew the courts attention to the equitable principles in the law of trust- implied trust and resulting trust- and emphasized that there is a difference between the legal owner of a property and the equitable owner. He referred us to the cases of Lartey vrs Bannerman (1976)2GLR 461, In re Fianku Akotuavrs Djan and others(2007-2008) 1SCGLR165, In re Koranteng vrs Koranteng and others(2005-2006)SCGLR1039. He invited the court tolook at the book, Ghana Land Law and Conveyancing authored by Bj da Rocha and CH Lodoh at page 55
We need a thorough review of the whole of the record of appeal to be able to determine this appeal. Was the trial court right in making a finding that because all documents on the property were in the name of plaintiff’s son the plaintiff had failed to proof that he owned the property? In fact as rightly stated by my sisters in the majority judgment, it is the duty of this appellate court to conduct such probing of the whole record of appeal in examining the trial court’s judgment. What did the plaintiff say concerning the son’s relationship with this property? In paragraph 1 and 3 of his pleadings he stated that he bought the property in the name of his son, obtained the lease in the name of the son and that he is a beneficial owner. Elsewhere in his evidence before the court he testified that he bought the land for his son and that the building on the land was for his son and since it was he who bought the land it was his duty to process the documents for him.He bought the land when the son was a minor but applied for the registration when he was 23 years and got the Land Certificate when the son was 25 years.
It needs no emphasis that the legal authorities have recognized particular legal procedures, representations, and capacitiesby which purchase of land can be made and suits mounted for a minor and a majority. Therefore, where a father or anybody intends acting for the minor or his elder son the legal processes and nature of representation are not in doubt. From the evidence before the court none wasadopted by the plaintiff when purchasing for the son or when the child was of age. It may be sheer ignorance that may have dictated to the plaintiff how to go about this purchase. But the legal authorities are agreed that it is not in every situation where a party breaches these rules that the person should be driven away from the judgment seat or lose his case.Equity has always intervened where the circumstances of the case demanded that to avoid inequitable results the courts tamper with these legal rules andprocesses. Equitable principles, relating to trust has in some cases intervened. The courts attitude in such situations has always been that the facts of a case should be understood and applied as to achieve substantial justice between the parties.Excessive attachment to form and legalism has in most cases met with a frown in a court of equity. For it is not in the character of equity to elevate strict adherence to law over justice and common sense. In this my delivery I will limit myself to one of the principles on trust applyingthe reasoning in the case of Lartey vrs Bannerman (1976)2 GLR461 cited by counsel for the plaintiff. This case should be sufficient to demonstrate my thinking about the involvement of equity in seeking substantial justice. In that case the plaintiff an infant had her case being conducted for her by the father, Mr.Lartey. When it came out that the plaintiff was an infant the other party sought to dismiss the case of specific performance sought by the plaintiff on grounds of lack of mutuality in the application of the rule of specific performance. In fact the father’s authority was questioned for prosecuting the case for the daughter. Of concern to our instant case was the Court of Appeal’s decision in clothing of Mr. Lartey, the father, as the real plaintiff and not the infant daughter. The court per His Lordship Amissah J.A observed as follows at page 466 of the report:
“As far as I can read the arrangement, Blankson Lartey was himself making the contract. The daughter had not asked him to do anything for her, nor had she held him out as doing anything for her. The negotiations were carried out with the defendant by Blankson Lartey and in this he obeyed no instructions from anyone nor had he any cause to look to anyone for instructions. The money paid was his own”
The court continued at page 467
“Obviously Blankson Lartey caused the action to be brought in the name of the daughter because the documents were made in her name. It was either a matter of convenience or the result of ignorance. Between himself and the daughter Blankson Lartey may have been on his way to constituting himself a trustee of the property for the daughter. Between himself and the defendant however, he was the person making and responsible for the performance of the contract. Blankson Lartey was the real plaintiff in fact and ought to have been in name as well. His use of the daughters name, in the circumstances of the case, could, if convenience had led him to that course, be taken as the use of an alias. If it was ignorance I will be loathe to see him suffer in a case like this on that account where there is no merit whatsoever on the other side”
In the interest of justice the court resorted to the then Rule 31 of the Court of Appeal rules and amended the title of the writ substituting Blankson Lartey for Patience Lartey, the daughter.
Sowah J.A(as he then was) was of the viewthat the proper person totake out a writ on the evidence was Blankson Lartey. Because he was contracting for the benefit of the infant daughter, in equity he is deemed to be contracting as a trustee for the benefit of the daughter. In the instant case that Kwame Nkrumah was plaintiff’s son and that he bought the property for this son or in his son’s name was evidence pervasive on record and was not for once challenged by the defendants in cross examination. Having failed to raise any challenge of the fact of Kwame Nkrumah being the son when the plaintiff so testified absolved the plaintiff from calling any further evidence of that fact. Also not challenged was the evidence that the plaintiff took the lease for his infant son. These non-challenges within the total evidence on record leads me to the conclusion that the plaintiff indeed is the father of Kwame Nkrumah. I must not be taken as saying that in every situation where there is none challenge then the unchallenged evidence should be held proved. It depends upon the circumstances of each case. The plaintiff has maintained consistently that Nkrumah is the son. I cannot think of any improper motive why the plaintiff will be so firm Nkrumah is his son, if he is not. The probabilities are that he is the son and I so find. On the evidence again I cannot imagine who else I could point to as having bought the land for Kwame Nkrumah and disbelieve the plaintiff. In civil cases findings are made on the basis of balance of the probabilities. Refer to the case of Jass Co. Ltd vrs Appau (2009) SCGLR 265 at 270, Samir Faris (2005-2006) SCGLR882.For what exactly is meant by the balance of probabilities and what exactly is expected of a party who has the burden of proof see the case of Bisi vrs Tabiri (1987-1988) 1 GLR 360 at 371. I will find that Kwame Nkrumah is the son of the plaintiff and he bought the property for him. Reading the record of appeal it doesn’t appear the trial judge had any doubt that Kwame Nkrumah was the plaintiff’s son. He proceeded in calculating Kwame Nkrumah’s age as 3 years when the lease was taken and 25years when the writ was issued in the trial court and applied these ages in his judgment.
I have stated that the plaintiff told the court he bought the property in the name of his son and that he is a beneficial owner. He said also that he bought the plot for the son. I think the plaintiff should be understood as having bought the property for the son. The word beneficial owner being a technical word I think it would be unfair to hold the plaintiff for having used it, most likely not knowing what it imports in legal circles. Buying in the son’s name and for the son in our common language should have very little difference. Like the Lartey case (supra) it was the plaintiff who bought the lease, got it registered, built the four bedroom on it, reported the demolishing to the police and pursued the case till completion of prosecution and issued the instant writ. All these he did not on the direction of anybody. These are all clear acts of ownership. In these circumstances should the plaintiff and his son lose this land only because the plaintiff failed to sue in the son’s name or rather get legal advice when he was acquiring the lease? It is in such cases that equity comes in handy. Equity will not hesitate, within these facts, to presume trusteeship. I will therefore hold the plaintiff as a trustee for the benefit of the son.
I have stated earlier that the trial judge found the registration of the land by the plaintiff also fraudulent because one Bediako was the person who executed the lease as the lessee. Counsel for the plaintiff submitted, in disagreement with the trial judge, that what was important in the documentary transfer of land was the execution by the vendor or transferor and not the purchaser or transferee. The deed takes effect immediately on execution by the grantor. That being the case, counsel contended, Mr. Bediako’s execution of the lease, exhibit A, for the purchaser is not of such legal importance as to void the lease. A closer look at the lease exhibit A will show that the said Bediako did not execute the lease for the purchaser but acted as one of the three witnesses to the purchaser.
Let us be clear what the legal authorities mean when they mention fraud. We can then make a determination whether the acts of the plaintiff and Bediako in the procurement and the registration processes were in any way fraudulent. Kerr on the Law of Fraud and Mistake,7th Edition by Denis Mc Donnel and John Monroe has a lot to offer us in our search for legal understanding on what is fraud. At page one of the book it states that:
“Fraud in the contemplation of the civil court of justice may be said to include properly all acts, omission and concealment which involves a breach of legal or equitable duty, trust or confidence, justly reposed and are injurious to another, or by which an undue or unconscientious advantage is taken of another. All surprise, tricks, cunning, dissembling and other unfair way that is used to cheat anyone is considered fraud. Fraud in all cases implies a willful act on the part of any one, whereby another is sought to be deprived, by illegal or inequitable means, of what he is entitled to”
On the authority of Derry vrs Peek (1889) 14 Appeal Cases 337 there appears to be some certainty in the legal position that one of the elements of fraud is the intention to deceive though the motive is immaterial. It is also accepted that negligence is not fraud but may be evidence of fraud if it is so gross as to be incompatible with the idea of honesty. Tarkey vrs Mc Bain (1912) AC 186 is authority that an intention to deceive being a necessary element or ingredient of fraud, a false representation does not amount to fraud at law unless it be made with a fraudulent intention and there is a fraudulent intention if a man, with the view of misleading another into a course of action which may be injurious to him, makes a representation which he knows to be false, or which he does not believe to be true.
At page 18 of the book Kerr on the Law of Fraud and Mistake (supra) the authors state:
“There is fraud in law if a man makes a representation which he knows to be false, or does not honestly believe to be true, and makes it with the view to induce another to act on the faith of it, he does so accordingly, and by so doing sustains damage although he may have had no dishonest purpose in making the representation. It is immaterial that there may have been no intention on his part to benefit himself or to injure the person to whom the representation was made. It is enough that it be made willfully and with the view to induce another to act upon it, who does so accordingly to his prejudice….”
What appears to run through the meaning assigned to fraud by these authorities is that there should be some representation which should be fraudulent, there should be some dishonesty and the third party to whom the representation was made should have acted on it to his detriment or prejudice.
Taylor JSC had this to say of fraud in the case of S.A. Turqui & Brothers vrs Dahabieh (1987-88)2GLR486.
“In my opinion a charge of fraud in law can be taken to be properly made against a party who knowingly or recklessly whether by conduct or words, uses unfair, wrongful or unlawful means to obtain a material advantage to the detriment of another party. It is an insidious form of corruption and it is therefore a charge involving moral obloquy. Bluntly put without equivocation, it is a species of dishonest conduct…………”.
His Lordship Justice Twum relying on Derry vrs Peek and Lord Esher in the case of Le Lievre vrs Gould (1893)1QB 491 in our Ghanaian case of Brown vrs Quashigah (2003-2004) SCGLR 930 at 943 said that fraud, in short, is dishonesty.
Bearing in mind that a charge of fraud must not be made lightly and that there should be very clear evidence on the subject in proof thereof we now have to apply the understanding of fraud as offered by the foregoing legal authorities. I have stated in this judgment that the lease document that transferred the land the plaintiff is claiming ownership of (exhibit A) was witnessed by Mr. Bediako and executed in the name of Kwame Nkrumah, who from the evidence the trial judge rightly found was neither the plaintiff or the Kwame Nkrumah himself. The question to ask is was there any evidence of deceitful conduct on the part of the plaintiff in getting the lease document from the Nungua Stool? What was this deceitful conduct? And if there was, the next question will be, was the Nungua stool or any other person prejudiced by the deceit? It appears to me there is no evidence from which a finding could be made of any deceitful conduct by the plaintiff. The plaintiff consulted the Nungua stool to purchase a piece of land, they agreed to the conditions and terms of the purchase and the land was identified for the plaintiff, completing the leasing processes. That Mr. Bediako executed the document in the name of Kwame Nkrumah may be evidence of misrepresentation but does not necessarily amount tofraud with attendant prejudice to the Nungua Stool, who in any case was not in this suit challenging the grant. It is worth noting that, as counsel for the plaintiff contended, it is not a requirement of the law that the purchaser or grantee should execute his part of the lease document to make the lease valid. This position is what has been confirmed by the cases of Fugar vrs Bossman (1963)1GLR16 and Da Costa& others vrs Ofori Transport (2007-2008)1 SCGLR602. The Conveyancing Act, NRCD 175, also in its section 1 makes it clear that the mandatory execution of the transfer document is directed at the grantor/transferor and not the transferee. The section provides
“1. A transfer of an interest in land shall be by a writing signed by the person making the transfer or by his agent duly authorized in writing, unless relieved against the need for such a writing by the provisions of section 3”.
I will uphold the contention of the plaintiff’s counsel that the execution of the lease document by Bediako in the name of Kwame Nkrumah is not sufficient evidence of fraud against the plaintiff. The misrepresentation willhave to be fraudulent, which fraud should have resulted in some form of damage to the Nungua Stool or to the defendants. That is not what the evidence in this case revealed.
The plaintiff has a Land Title Certificate which was tendered as exhibit B. In our current land administration, a Land Title Certificate it is supposed by law to be the highest and firmest title one can have. Subject to few considerations it confers an indefeasible title on its proprietor. The defendants evidence should be lethal capable of destroying the legal basis of this title failing which the plaintiff’s title will reign supreme.The certificate was signed by the Chief Registrar on the 5th of October 2002.
The 1st defendant attacks the certificate as a product of fraud. He provides the particulars of fraud as follows:
“1.The plaintiff failed to disclose to the Land Registry the adverse claim of the defendant.
The plaintiff failed to disclose to the Land Registry that the defendant was in possession having constructed a building on the land
What the 1stdefendant is contending by these particulars is that since he was in adverse possession of the land with his building to the knowledge of the plaintiff, the plaintiff was duty bound to have informed the Title Registry of the adverse possession. Plaintiff’s failure to do so and proceeding to procure the Certificate is fraudulent, which fraud voids the Certificate.So as between him and theplaintiff 1st defendantis claiming prior possession of the disputed plot. Can he? His evidence, which was accepted by the trial judge was that he took possession of the land when it was bare. How true is this?
The plaintiff testified that when he visited the land in 2001 he found his whole building demolished and the debris taken away leaving only the foundation of the building. He said he found a new building erected at the far corner where he used to have the foundation of the boys quarters and that was put up by the 1st defendant.( my emphasis) He was not present to witness the demolishing but his care taker claimed he was. The caretaker told the court that at the time he met the plaintiff he had a four room uncompleted structure on the plot to roofing level one of which was roofed for him to occupy. He was on the plot when the 2nd defendant and one red came to tell him the plaintiff was dead and that they were going to sell the building to pay off a bank loan. He told the court that they caused the building to be demolished before selling the land to the 1st defendant. In cross examination the caretaker, Kwabena Kanbase was asked:
“Q. At the time the Klanaa Quarter made the grant to the 1st defendant there was no structure on the bare land?
They had demolished the building and removed all the debris out of the place.”( emphasis mine)
What was left after the demolishing the plaintiff said the debris was taken away leaving only the foundation of the building.(emphasis mine)
The trial judge found these pieces of evidence coming from plaintiff and his witness regarding the remnants after the demolishing contradictory and as a consequence disbelieved their story. The trial judge talks about contradiction because the witness (caretaker) in his evidence did not mention the foundation of a boy’s quarters as remnant after the demolishing, as the plaintiff himself did. With respect to the trial judge I do not see any contradiction in the evidence of the plaintiff and his witness on this point. Both were talking about demolishing and carrying away of the debris. That the witness did not go further to add that what was left after the demolishing included the foundation should not have detracted from the veracity of his evidence. It needs to be noted that parties and witnesses in their evidence in court are under the baton of leading counsel and an omission to testify to a fact should not in all cases result in rejecting the evidence and bundling their evidence as untruthful. Examining the appeal record in its entirety I rather find the witness credible. He was put on the land by the plaintiff and had been there for the past 20 years in one room roofed for him by the plaintiff. This evidence corroborated that of the plaintiff as to the nature of the structure on the land before the demolishing. So far as the witness was aware the land was sold to the 1st defendant by the 2nd defendant. This evidence tallies with that of the 1st and 2nd defendants when they testified in the criminal court. It was in this civil court that they claimed the land was sold directly to the 1st defendant by the Kotey Amli family. The following are extracts of evidence of this plaintiff’s witness he gave earlier in the criminal court concerning the demolishing of the plaintiff’s building:
“I am leaving in PWI’s house as a caretaker. I am a mason. I know the accused. I also know the man called Red. Accused is an assembly man. He has never come to our house. About 2 years ago he came to our house with Red. Red came to inform me that my land lord died of stroke……… I was there when Red came with 6people from Medina and started demolishing the house. After the demolishing the land was sold to one Sarpong. Accused and Red sold the land to Sarpong. Sarpong started building on the land”.
If this evidence in the criminal court is anything to go by it is a consistent statement by the witness that there was demolishing and that the 2nd defendant knew of the demolishing even though he was not present on the day of the actual demolishing. From the above quoted evidence, when Red came to tell him that the plaintiff was dead he came in the company of the 2nd defendant. For what reason will the 2nd defendant accompany Red to come and lie that the plaintiff was dead? Red might have come later with the 6 people from Medina for the demolishing in the absence of the 2nd defendant. But the 2nd defendant was present with Red when the witness was told that the plaintiff had had stroke and died, a statement clearly false to the knowledge of the 2nd defendant. For what reason was he a part of such lie?
In any case why was the case in the criminal court if there had not been any demolishing of the plaintiff’s property? Could the police have mounted the prosecution if they had not been at the scene to see signs of demolishing? I don’t think so. It is true there is evidence that the 2nd defendant was acquitted of the charge concerning the demolishing of the plaintiff’s property but that is not to say there was no demolishing.
Again what interpretation do we give to the 1st defendant’s refusal to answer the question put to him in cross examination by opposing counsel and the court itself whether he found any signs of a building on the land? (refer to page 141 of the record of appeal) This is somebody who had maintained consistently that the land was bare when it was sold to him. Why was he quiet this time? It needs noting that by section 62(4) (b) of the Courts Act, Act 459 it is contempt to refuse to answer questions put to him. In the circumstances of this case it will be appropriate to conclude that it was because he knew there was a building on the site that was demolished and the land sold to him that was why he refused to answer the question. At that point his spirit could not and did not allow him to lie. What was his conscience telling him in the witness box? He knew that there was a building on the plot which was demolished. If he genuinely believed that the demolishing and sale to him had nothing repugnant about it he would have given the court the due respect and simply answered the question. As men and women of the world we should not hesitate to declare such wrongs and connivance, collusions unacceptable and by that make them unattractive enterprises. I cannot find myself coming to any decision that will make the 1st defendant benefit from his attempt at deceiving the court, failing to speak the simple truth. I will find that the Plaintiff was in possession of the land with his uncompleted building long before the 1st defendant who took over possession of the land only after the plaintiff’s building was demolished to his knowledge. It will be a tragedy to allow such possession forcibly and unlawfully taken to reign in a court of law and give it priority to the possession unlawfully supplanted. This is the possession the 1st defendant is boasting of and wants the plaintiff to have told the Land Registrar and since he failed the Certificate is void. I totally disagree with the 1st defendant. The trial judge accepted the evidence of the 1stDefendant and concluded that the land was bare with no sign or indication of prior construction or occupation at the time it was sold to the 1st defendant. From the analysis of the evidence I have made above I respectfully differ from this conclusion of the trial judge. I am aware the authorities’ direct utmost respect for findings of fact made by the trial judge but under certain conditions the appellate court is given the jurisdiction to depart from such findings. Refer to the cases of In re Okine (2003-2004) SCGLR 582 at 607, Franklin vrs Teye (2001-2002) SCGLR 985.My finding on the balance of probabilities is that the plaintiff had his building on the land which was demolished and the land sold to the 1st defendant who knew there had been prior possession by the plaintiff. The plaintiff’s evidence is that he put up the uncompleted building in 1985/86 and mortgaged the property to the Agric Bank somewhere in the year 2000.It was in 2001he noticed on visiting the site that the building had been raised down.
The 1st defendant having alleged fraud with particulars alleging that the plaintiff knew about his possession of the land with building thereon but failed to disclose that fact to the registrar, had the duty to establish the allegation as particularized. He did not discharge this duty. The plaintiff after registering the land was given registration number 3253/1984 and notice of his application to the Land Title Registrar for registration under the Title Registration Law was given on the 15th of December 2001 (exh G). He was given the certificate in 2002.There is no evidence he knew of the 1st defendant and his building on the land when he made the application to the Title Registrar for registration, which application was published in December 2001. Having failed to support his allegation of fraud against the plaintiff in procuring the Certificate the inviolability credentials of the certificate stood unscathed at the end of trial. For different reasons, debatable though, the trial judge also came to the conclusion that there was no evidence supporting the particulars of fraud pleaded by the 1st defendant to invalidate the certificate. But continuing his judgment he said in respect of the certificate.
“The peculiar circumstances of the procurement of the Land Certificate in issue however has to do with the manner in which the plaintiff presented himself to the Land Registrar as the proprietor in the person of the said Kwame Nkrumah. In much the same way as the said Osei Bediako procured and dealt with the lease, exhibit A, personally as his own, the plaintiff appeared to have procured and dealt with the Land Certificate, exhibit B, as his own..”
To have dealt in the land before the Title Registrar as his own, signed the application form for the certificate without a power of Attorney or consent of the son and not disclosing the fact that he bought the land for his son the trial judge found fraudulent. I do not think these acts and omission amount to fraud.
In the instant case the application for registration by the plaintiff was meant to register Kwame Nkrumah, his son and the registration was indeed made in the name of Kwame Nkrumah. While admitting that there could have been a procedurally tidier method of taking the lease for the son and applying to the Title Registrar for registration, I do not think, in the circumstances where the plaintiff from the stage of taking the lease from the Nungua chief as far back as in 1981, putting up a four bedroom house to foundation level, defending his ownership of the land when the building was demolished and procuring a title certificate, the name in which he got the lease and to whose benefit(the trial court describes it as the way he presented himself) should disentitle him to ownership of the disputed plot. I have found that the plaintiff holds title to the land as trustee for the son having regard to the circumstances of this case.
Moreover the plaintiff has a Title Certificate in the name of his son, Kwame Nkrumah. By section 122 PNDC Law 152 the only grounds on which the land register shall be cancelled is on proof of fraud or mistake in acquisition of the Certificate. In the Supreme Court case of Brown vrs Quarshigah (2003-2004) SCGLR930 at 946, His Lordship Twum is reported as follows
“In what circumstances may a court order the cancellation of a land certificate issued pursuant to PNDCL 152.Section 122 of the Law provides
i. Subject to subsection (2) of this section the court may in its discretion, order the rectification of the land registration to be cancelled or amended where it is satisfied that the such registration has been obtained, made or committed by fraud or mistake.
Hence “fraud and “mistake” are the only permissible grounds for the rectification of the land register”
If the administration of land and security of title in land ownership is not to be unduly disturbed in a way that would make nonsense of the whole land title administration in the country which is based on our new found Law 152, then the courts will have to operate in its interpretation of the said law as to prevent unnecessary strictures that may be raised in questioning title certificates which have been obtained by a proprietor after going through all the processes provided by the law itself.
The defendants have not been able to lead any evidence painting anything done by the plaintiff in the whole process towards acquiring the Land Certificate as fraudulent or a mistake. In consequence the Certificate standing in the name of the plaintiff’s son as proprietor of the disputed land stands on firm legal grounds entitling him to all his claims in the trial court i.e. declaration of title, damages to trespass, recovery of possession and perpetual in junction restraining the 1st defendant from interfering with the land in dispute. There is no evidence at all on the value of the 4 bed room uncompleted house demolished before the land was sold to the 1st defendant. This is most likely to be because the plaintiff had no evidence any of the defendants could be directly held for the demolishing. But that should not disentitle him to general damages which in the circumstances of this case I award in the sum of GHC100,000 against both defendants jointly and severally. In coming to this conclusion I did not lose sight of the issues of bonafide purchaser for value and the Statute of Limitation and exhibit 4, the Rebecca Kufour judgment. I found them not much an issue deserving detail treatment. From the evidence it is clear to me the 1st defendant cannot claim to be a purchaser for value without notice in the face of his own evidence continuing to build in the face of challenge, not only physical confrontation from the plaintiff but clear evidence of possession by a contestant.
In the circumstances of this case where the plaintiff was on the land he bought from the Nungua Mantse before the Rebecca Kuffour case got to court and judgment was given in favour of the Kotey Amli, grantors of the 1st defendant, the plaintiff cannot be automatically denied his title in favour of the 1st defendant or the Kotey Amli family since he cannot be privy in estates by a judgment against his vendor, the Nungua Stool, commenced after the purchase.
In conclusion I will uphold the appeal and set aside the trial judgment.
JUSTICE VICTOR OFOE
JUSTICE OF APPEAL