IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL
ACCRA - A.D 2018
THERESA AMANKWA - (Plaintiff/Respondent)
FELICIA A KUFFOUR - (Defendant/Appellant)
DATE: 8 TH MARCH, 2018
SUIT NO: H1/99/2017
JUDGES: OFOE J. A. (PRESIDING), DZAMEFE J. A., AGYEMANG (MRS). J. A.
LEVINGSTON DEY FOR THE PLAINTIFF/RESPONDENT
PETRINA DEFIA FOR DEFENDANT/APPELLANT
The respondent, who I will refer to in this opinion as the plaintiff, issued a writ against the appellant, also referred to in this judgment as the defendant, claiming the following:
“a. Declaration of title to all that piece or parcel of land situate lying and being at Otinshie, Accra known as Block ‘C’ Plot 145 containing an approximate area of 0.34 and bounded on the North by Lessor’s land measuring 100’ feet more or less on the South by a proposed road measuring 100 feet more or less on the West by Lessors’s land measuring 150 feet more or less and more particularly described and delineated on the site plan shown edged pink.
b. Recovery of possession of the land described in relief (a) above.
c. Perpetual injunction restraining the Defendant acting by herself, agents ,workmen, assigns and all persons claiming through by or n trust for her from in anyway interfering with Plaintiff’s peaceful possession and enjoyment of her land.
d. Special damages of thirty Five Thousand Ghana cedis being the cost of Plaintiff’s building foundation demolished by the defendant.
e. General damages for trespass and other relief as the Court may deem fit”.
The evidence of the parties before the trial court, which in substance was as each pleaded, can be recounted as follows:
The Plaintiff: That she bought the disputed plot from the Osae family in September 1996 but was given the indenture covering this land (exhibit C) in the year 1999. Before she received the indenture she took possession by walling it and got a caretaker to occupy a wooden structure she had constructed on the land. Since 1997 she had been in undisturbed possession of this land with a completed foundation for a storey building until 2006 when one Nii Odonkor II invited her and informed her the land she was developing was now for the Tsiewe Family because they had won a Court of Appeal case against the Osae family, plaintiff’s grantor. According to plaintiff she was shown this Court of Appeal judgement by Nii Odonkor and therefore agreed to attorn tenant to Nii Odonkor. Consequently she was given another indenture on the 21st of December 2007 (exhibit D) by Nii Odonkor. In November 2007 she had information the defendant had got a bulldozer unto the land, demolished her foundation and raised down the wall. Nothing could stop the defendant’s trespass. Pictures of the demolished site was tendered by the plaintiff as exhibits F series. She reported the case to the C.I.D Commissioner who caused surveyors to conduct a survey of the land with their respective site plans whether the parties were, indeed, contesting the same land. The result of the survey was that her land was 1000 feet away from the land she was disputing with the defendant. At that point she thought the matter should be handle by the law courts. After the surveyors report she went back to her grantors who by a Deed of Variation (exhibit E) gave her another site plan which conformed to the exact land they were disputing. It was the evidence of the plaintiff that despite this challenge the defendant continued to build. Plaintiff mentioned one Sarfo as one of her boundary owners. The other two boundaries she mentioned as proposed roads and the other she does not know the name. Her witness Samuel Dowuona, a building contractor, confirmed plaintiff’s evidence about the structures on the land. He testified that he built the wall and the wooden structure on the land and also built to floor level a storey building but had to stopped in the year 2000.
Ebenezer Afutu testified that the land was sold to the plaintiff by her family and the adjoining plot was sold to a Mr. Sarfo. This witness was emphatic that the land they sold the plaintiff is where she is developing and that he was personally involved in granting that land to the plaintiff. It was he together with Dr. T.O Osae, on the advice of the Lands Commission, who executed the Deed of Variation when they found out that there was a mistake in the site plan in the indenture, exhibit C, given the plaintiff. He also told the court that before the plaintiff came to them for the variation he had occasion to warn defendant’s workers on the land but they did not heed his warning.
The defendant’s side of the story was that she bought the land from the Klemusum Quarter of Teshie, specifically from Nuumo Adjei Kwanko II and elders. On her visit to the land, before purchasing, she noticed that there was a dwarf wall and footing which were overgrown with weeds. When she enquired from her grantor who owned those structures on the land, their answer was that there had been several illegal encroachers on their lands and one such type was what was on the land being sold to her. She did a search which disclosed that the land had no transaction affecting it. She therefore put in a caretaker when she was about to travel outside the country. It was when she returned in 2007 and started building in October 2007 that the plaintiff and her agents came making claim to the land. On a complaint by the plaintiff they all appeared before the Commissioner C.I.D whose appointed surveyor confirmed her position on the land and declared that plaintiff’s land was 1000 feet away. Defendant tendered exhibit 3, the survey report. In 2008 she had a writ of summons and an application for interlocutory injunction served on her. Eventually the application for injunction was refused by the court. According to defendant the police asked her to continue since the plaintiff’s land was somewhere else.
Samuel Nii Adjei Duah represented the defendant’s grantors. He confirmed the sale of the land to the defendant. He told the court that Nii Odonkor who gave the plaintiff the document, exhibit D, allowing the plaintiff to attorn tenant, had no such power unless authorized by Nii Kwanko. He however admitted that Nii Odonkor was a caretaker of the land and reports to Nii Kwanko, head of Klemusum and Tsiewe.
The record of appeal provides firm evidence that there was litigation between the grantors of the two parties ie the Osae family and Nuumo Kwanko II through the Courts all the way to the Supreme Court. It was at the time the defendant’s grantor had victory at the Court of Appeal that the defendant bought the land.
It is worth mentioning that the defendant amended her defence to plead estoppel by conduct and that she was a purchaser for value without notice.
After considering respective cases of the parties the trial judge concluded that the defendant was not an innocent purchaser for value without notice. She came to this conclusion because she found clear evidence that the plaintiff was in actual possession with a wall over the disputed plot, a foundation of a building and a wooden structure on the land which were demolished by the defendant.
As regards the location of the disputed plot she said
“Now one may ask does the plaintiff’s land fall within the Otinshie village? The answer I find is provided from the exhibits and from PW1 to the effect that the land in dispute “is in the heart of Otinshie”.
Based on the Court of Appeal and Supreme Court judgment she concluded that the plaintiff’s grantors had allodial title to Otinshie lands which included the land in dispute and therefore the plaintiff had valid grant from her grantors. She then proceeded to give judgment for the plaintiff as would be found at page 226 of the record of proceedings. She denied plaintiff the claim for special damages because that was not proved but awarded her GH¢15,000 general damages.
The defendant aggrieved at the judgment has appealed to this court for a rehearing. Her initial 5 grounds of appeal ended up with the following two, three having been abandoned
1. The judgment is against the weight of evidence and
2. The trial judge failed to consider the defence of innocent purchaser for value without notice pleaded by the defendant.
The authorities have stated with certainty what duty is imposed on an appellant who alleges that the judgment given by a trial court is against the weight of evidence and what the appellate court should also look for in determining the success of such allegation. We refer to the cases of Republic vrs
Conduah, ex parte Aaba (2003-2004) SCGLR 1034 at 1041, Djin vrs Musah Brako (2007-2008) 1SCGLR686. Stated briefly the duty is to find out whether the trial judge has made any improper use of all relevant evidence in arriving at the judgment. Were there any piece or pieces of evidence which she used or failed to use and which if reconsidered by an appellate court will change the outcome of the case?
Arguments of counsel for the defendant on the first ground of appeal that the judgment is against the weight of evidence were made under, I will say, two main heads. First the description, boundaries and location of the land the plaintiff was claiming and secondly the validity of the deed of variation and its evidential value. He was detail in his submission questioning why the trial judge could have accepted the site plan in the document exhibit E, (the Deed of Variation) without considering the yawning difference between the land the plaintiff claimed in her writ of summons, the statement of claim and that in her original document, exhibit C given her by her grantors, Osae family. Defendant’s counsel submitted:
“Simply put the description of the land contained in the body of exhibit C, does not correspond with that of the said site plan, let alone the description in both the writ of summons and amended statement of claim”.
On the same issue of the description of the land counsel stated elsewhere in his submissions:
“The learned judge granted plaintiff a declaration of title of the land described not on the writ of summons and amended statement of claim but rather the parcel of land described in exhibit E, Deed of Variation. The plaintiff at all material times never amended either her writ of summons or amended her statement of claim and contested the action seeking a declaration of title to the land described in both the writ of summons and amended statement of claim”.
These submissions call for a thorough examination of the evidence whether the plaintiff was able to prove the exact location of the land she went to court for. Were there any discrepancies in her evidence as to the description of the land? In answering this question it is necessary to note the view of the authorities as regards the duty of a plaintiff seeking a declaration of title to prove the identity of the land and its boundaries. Refer to the cases of Tulasi & another vrs Mensah & Mensah (2011). SCGLR 568. Nortey vrs African Institute of Journalism (2013-2014)1SCGLR703 In the body of the indenture exhibit C the land is described as follows
“ALL THAT PIECE OF LAND situate lying and being at OTINSHIE RESIDENTIAL AREA- ACCRA and known as Block ‘C’ plot No.145 containing an approximate area of 0.34 acre and bounded on the North-west by plot No. 144 measuring 150 feet more or less on the North-East by a proposed road measuring 100 feet more or less on the South-East by Plot No.s 144 & 144A measuring 150 feet more or less on the South-West by a proposed Road measuring 100 feet more or less which said piece of land is more particularly delineated on the plan attached hereto and thereon shown edged pink………”
The writ of summons by which the plaintiff sought for a declaration of title described the land as follows:
“a. Declaration of title to all that piece or parcel of land situate lying and being at Otinshie, Accra known as Block ‘C’ Plot 145 containing an approximate area of 0.34 and bounded on the North by Lessor’s land measuring 100’ feet more or less on the South by a proposed road measuring 100 feet more or less on the West by Lessors’s land measuring 150 feet more or less and on the East by thelessor’s land measuring 150 feet more or less and more particularly described and delineated on the site plan shown edged pink.
In the amended statement of claim she has it as
“Declaration of title to all that piece or parcel of land situate lying and being at Otinshie, Accra known as Block ‘C’ plot 145 containing an approximate area of 0.34 and bounded on the North by Lessors land measuring 100 feet more or less on the South by a proposed Road measuring 100 feet more or less , on the West by Lessors’s land measuring 150 feet more or less and on the East by Lessor’s land measuring 150 feet more or less and more particularly described and delineated on the site plan shown edged pink”.
What description was in the Deed of Variation? In the body of the document we have the following description that was supposed to substitute that in exhibit C, the lease granted the plaintiff on the 10th June 1999.
“ALL THAT PIECE OR PARCEL OF LAND containing an approximate area of 0.35 acre situate at OTINSHIE EAST LEGON-ACCRA in the Greater Accra Region of the Republic of Ghana and bounded on the North-West by Lessors’ land measuring 156.49 feet more or less on the North-East by Road measuring 98.56 feet more or less South-East by Lessors’ Land measuring 158.34 feet more or less South-West by Road measuring 99.95 feet more or less which piece or parcel of land is more particularly delineated shewn edged pink on the attached hereto plan and not site edged Green”
The site plan in this Deed of Variation reflects the dimensions in the above schedule
On closer examination of these particulars of the land as contained in the writ, amended statement of claim and the exhibits C and E, the lapse I find in the plaintiff’s case is her omission to amend her writ and amended statement of claim to meet the particulars of the variation in exhibit E she got subsequently from her grantors, as will become evident soon. Should that be fatal to the plaintiff’s claim to this land? Counsel for the defendant argues that it should. I understood him to have contended that if the plaintiff has presented to the court such confused particulars of the land she is claiming, why should the court come to her aid reconstructing her case for her? Counsel predicated this contention arguing the cases of Hanna Assi (No2) vrs. GIHOC Refrigeration and Household
Products Ltd (2007-2008) 1 SCGLR 16. Ahinakwa II(Sub.by) Ayikai vrs Okaidja (2011) 1 SCGLR 205 at 208. There was evidence from the plaintiff and her grantor’s representative in court, Ebenezer Afutu confirming that plaintiff shares boundary with one Mr Osei Bonsu. Counsel’s reaction to this evidence was that if there was this boundary owner known to the plaintiff, why did she describe that side of her boundary as lessor’s land and also her statement of claim and writ of summons did not mention Osei Bonsu? Counsel argued that the Deed of Variation (exhibit E) was made purposely to overreach the results of the surveyor’s report, exhibit 3, which showed that the plaintiff’s land was 1000 feet away from the disputed land. In support of this allegation he referred to the date exhibit E was executed which was on the 25th of November 2008 and contended that since the suit was filed on the10th of June 2008 then exhibit E was clearly made in the cause of suit, post litem motem. Again, he argued that the site plan in exhibit E shows a different date of 20th March 2008 from the execution date of exhibit B and that should expose the ulterior motives of the plaintiff. Further, more exhibit E is prejudicial to the case of the defendant. I will quote counsel:
“I have already indicated that exhibit E, the Deed of Variation, was prepared pendent lite or during the pendency of this suit. In technical terms, it was prepared post litem motam. This fact is not in dispute at all. The present suit was commenced on the 10th June 2008 and the said exhibit was executed on the 25th November 2008 meaning it was prepared and executed about some six months after the commencement of the action. Although exhibit E was admitted in evidence without any objection, I am of the view that it was highly prejudicial and having been made post litem motam, was inadmissible. Be that as it may, even if it was admissible evidence, it had no probative value, given the circumstances under which it was procured by the plaintiff and no weight ought to have been given to it by the learned trial judge”.
Reference was made by counsel to some Canadian and Indian authorities and Halsbury’s Laws of England (4th Edition) to the effect that statements, declarations made post litem motam are held inadmissible and the reason is to avoid bias, concoction or putting up false pleas.
Another attack of the defendant concerning exhibit E was the parties who executed exhibit E. It was executed by plaintiff’s grantors, the Osae family of Otinshie and Wofa Kwaku Trebi family of Benzin. It is counsel’s argument that the parties who executed the mother document, exhibit C should have been the same parties to vary the document and the variation could only change the description of the land and not the measurements. He contended that change in the measurements as shown by exhibit E, implied a different parcel of land. Counsel drew our attention to the evidence of the plaintiff that at a certain point he claimed to have attorned tenant of the same plot to a Nii Odonkor, who the plaintiff described as chief of Otinshie. Having attorned tenant to Nii Odonkor and by that denied her grantor’s title, plaintiff could not turn round to trace her title to the Osae family. I must admit that these were really incisive critic of the trial judgment.
Counsel for the plaintiff was terse in her responses to these submissions by the defendant’s counsel.
He submitted that exhibit E was merely an affirmation of exhibit C by the plaintiff’s grantors with a rectification of the site plan. According to counsel the receipt that was issued to the plaintiff, exhibit B, is headed Otinshie-Bedzin family and exhibit C was executed by T. A. Osae, E. A. Trebi, E. A. Osae and the stamp appearing after their signatures show a union of the Otinshie and Bendzin families. According to counsel it is these families that executed exhibit C. It is these same grantors who executed Exhibit E to confirm the location of plot Block C, the land in dispute. Counsel does not therefore see the merit in the complaint of the defendant that the parties that executed the original exhibit C were not the same persons who executed exhibit E and therefore exhibit E is ineffective to effect a variation.
As regards the description of the land it is the submission of counsel for the plaintiff that the description of the land in their writ of summons, that in the amended statement of claim and exhibit C are the same and exhibit E was just an affirmation of exhibit C but with a varied site plan. She argued therefore that there cannot be any merit in the argument of the defendant that there is conflict in these documents. She concluded, that the whole of their lessor’s land is numbered and classified. The disputed land is Block C Plot 145 of 0.34 acres which was what was granted the plaintiff by her grantors as testified to by the plaintiff and Emmanuel Afutu.
From the record of appeal there is unchallenged evidence that after exhibit 3 was produced, indicating that the plaintiff’s land was about 1000 feet away from the disputed plot, the plaintiff had to report this development to her grantors and on advise of the Lands Commission, exhibit E was produced. This fact was pleaded by the plaintiff in paragraph 22 of the amended pleadings. Is there evidence that the spot where the parties were disputing is what was leased to her and now covered by exhibit E? I will give the answer in the affirmative. The evidence is clear that the plaintiff was given this plot by the grantors and he took physical possession immediately by erecting corner pillars and started construction of a storey building with a caretaker on the land. It was this same land that the defendant acquired from Nii Kwanko. The plaintiff and Mr. Afutu testified that it is this plot that was granted the plaintiff and one of his boundary owners is Mr. Sarfo. That there is a Mr. Sarfo on that side of the plot was admitted by the defendant. On two sides of the land are proposed roads. This plot is described as plot 145 in Block C. I have taken a careful look at the coordinates X and Y in the site plan inserted in exhibit E giving the plaintiff a new location (now edged yellow) and the wrong location (edged green) and I am convinced that the mistake leading to the plaintiff’s plot location by survey, 1000 meters away was a technical mistake by the surveyor who worked on the site plan in exhibit C misapplying the coordinates. Both sites (the wrong site edged green) and the corrected site (edged pink) are rightly and properly located on the X coordinate and are therefore in line north-south. It is when you come to the Y coordinates that the site edged green is located near coordinate Y 359000 and the site edged pink is located rather near coordinate Y 358000. Mr. Afutu told the court he was present when the plaintiff was put in possession of this plot. I am of the view there is more than preponderance of evidence that the plaintiff was allocated the land where the dispute presently is ranging. In such circumstances it will be unjust to deny plaintiff ownership of this particular land with the only reason that there was discrepancy between her endorsement on the writ of summons and the amended statement of claim on one hand and exhibit E on the other. It is worth noting that there were pleadings by the plaintiff and evidence was led to that effect that the grantors appreciated the mistake made by the surveyor and on the advice at the Lands Commission variation was effected by executing exhibit E. I am aware of the undisputed case law authorities that demand of parties seeking declaration of title to lead clear evidence as to the identity of land they are claiming, failing which the courts are bound to refuse them such relief. But I am also aware that the authorities do not demand mechanical application of this principle. In the case of In re Ashalley Botwey(2003-2004)SCGLR420 at 437 Wood JSC as she then was said:
“I think the court erred in applying the principle enunciated in Anane vrs Donkor(1965) GLR188, SC to the facts of this case. Undoubtedly the general principle enunciated therein, namely that “ a claim for declaration of title or an order for injunction must always fail, if the plaintiff fails to establish positively the identity of the land claimed with the land the subject matter of his suit” is sound law but applicable only in appropriate cases. I will therefore not advocate a slavish application of this principle even where the identity or boundaries of the land claimed is undisputed”.
On the probabilities of the evidence the identity of the land the parties are disputing, it is my view is clear, despite the inconsistencies created by the description in the pleadings and that in the site plan in exhibit E.
I have read the cases of Hanna Assi and Ahinakwa (supra) and I find these cases shouldering for room, as stated by His Lordship Atugubah at page 408, for the courts to administer justice not classically but functionally? Should a court suo motu grant a relief not sought for by a party in a case and if yes, under what circumstances? Guided by the reasoning in these cases and applying the facts of this instant case I chose to exercise my discretion amending the writ and statement of claim of the plaintiff to seek the relief of declaration of title in respect of the land in dispute as described in the variation document exhibit E, that is the land edged green with the schedule as described in the variation document, exhibit E. I felt emboldened to chart that path because the evidence on record compels me and moreover it is not an issue of there not being a relief sought for by the plaintiff as in the Hanna Assi case but in this instant case there is a relief sought which I found not accurately described to fit the land in contention.
Was it the same family that executed exhibit E? Ebenezer Afutu who testified for the plaintiff testified that it was his family and that of the Osae family who litigated the ownership of the lands of Otinshie up to the Supreme Court. He said it was Dr. Osae’s grandfather Nuumo Osae Ntsiful and his grandfather Nuumo Afutu Tsru who founded the two villages of Otenshie and Bejin. Witness said he is the head of Bejin whilst Dr Osae is the head of Otinshie and that during the trial of the case all the way to the Supreme Court it was the then head of family, E. A. Trebi, who represented his Bedjin family and after his demise he (witness) has taken over as the head. Asked who his head of family was in the Supreme Court case he said Trebi Ashitey. It will be found on examination of exhibit E that it was executed by Dr. Osae and Emmanuel Afutu(the witness) as joint heads of Osae family and Trebi Family of Bendzin. These two families form the Otinshie/Bendzin family. These genealogical evidence can be found at pages 174 to 175 of the record of appeal. From these pieces of evidence I find that it was the same Osae and Trebi’s who executed exhibit E. That being the case counsel for the defendant’s contention that different heads from the plaintiff’s grantor’s family executed exhibit E is unfounded.
I have stated earlier that the submission was made by counsel for the defendant, in respect of the birth of exhibit E, that since it came into being at the time the suit was already filed in court it was inadmissible and that even if admitted it should have been given no weight. Exhibit E that counsel wants this court to exclude or denude of any weight was executed after the writ was issued but before trial began. It was in the plaintiff’s pleading long before the trial itself began. This contention of counsel on inadmissibility and the weight to attach to exhibit E I am of the view will have to be examined in the light of our Evidence Act NRCD 323 and not the common law and the Indian and Canadian authorities counsel referred to. Page 1 of the memorandum to the Evidence Act provides amongst others as follows:
“The Evidence Decree has been prepared as part of the programme of law reform and follows the detailed recommendations of the Law Reform Commission. The law of evidence is at present in a highly unsatisfactory state, being derived in a large measure from old English common law which is excessively complex difficult to ascertain sometimes based on uncertain principles and often unsuitable for application in our Ghanaian circumstances. Further more recent improvements made by statute law in the English rules of evidence have never applied in Ghana. It has therefore become a matter of urgent necessity for the rules of evidence applied in Ghana to be rationalized, simplified and presented in a coherent form accessible form. The Decree replaces the common law and most of the statute law relating to evidence and provides a comprehensive set of rules which will greatly assist in the administration of justice……..”
Such understood, admissibility of evidence in our local jurisdiction is governed by Section 51(2) and (3) of the Act. Its Subsections (2) and (3) provide:
“(2) All relevant evidence is admissible except as otherwise provided by any enactment
(3) No evidence is admissible except relevance evidence”.
By these provisions all evidence is admissible provided it is relevant and not excluded from admissibility by any enactment. So we look for any enactment, including the Evidence Act, itself that denies admission to exhibit E because of the time of its creation. I found none. The objection to admissibility of exhibit E is further flattened when it is recollected that section 6(1) of the Act which demands that any objection to the admissibility of evidence by a party affected thereby shall be made at the time the evidence is offered, failing which such evidence will form part of the material evidence to be assessed by the trial judge. There is no evidence on record that there was any objection to the admissibility of exhibit E or any adverse cross examination of this exhibit. It was admitted without any objection and cross examined upon. Even if it was evidence erroneously admitted that will not entitle this court to simply set aside the judgment only because of such error. Section 5(1) and (2) provides for when such erroneously admitted evidence can be set aside. Exhibit E was not erroneously admitted and therefore section 5 of the Act does not even come in for application. Refer to the cases of Edward Nasser vrs Mc Vroom (1996-97) SCGLR 468 and Auto Parts Ltd vrs Essuman (2013-2014) SCGLR 385 on admissibility of unobjected evidence. I think I have dealt sufficiently with this aspect of counsel’s worry about exhibit E in the trial judgment. Probably what is left to consider is the following submission made on behalf of the defendant:
“The site plan attached to exhibit E is dated 20th March 2008 which seeks to give the impression that it was prepared anti litem motem but the question to ask is: if the plaintiff had this plan in existence as at 20th March 2008, why did she not submit same to the police to be sent to the survey office since exhibit 3 is dated 10th April 2008? The obvious answer is that the site plan has been back dated to achieve the ulterior motives by the plaintiff to overreach exhibit 3?”
Why should the answer be obvious as counsel contends? If counsel had any such issue with the date on the site plan it was for him to have confronted the plaintiff whilst she was in the box. It surely will not benefit the defendant accepting exhibit E and the site plan therein and when the plaintiff is out of the witness box to attempt to allege ulterior motive against the plaintiff and demand its rejection. It is common knowledge that these indentures and their site plans are prepared with little or no impute from grantees, in our case the plaintiff. It is only fair that parties would be confronted on any irregularities on such documents to enable them call relevant evidence in explanation if they are so legally advised. As the evidence stands now I am not able to find any ulterior motive of the plaintiff by comparing only the date 20th March 2008 and 10th April 2008.
There is a further view held by counsel for the defendant that the plaintiff having attorned tenant to Nii Odonkor have denied her grantor’s title and cannot turn round to claim title in the same Osae and Trebi family. This is an interesting contention that should not be coming from the defendant. Her grantor’s representative, Samuel Nii Adjei Duah who testified for the defendant was clear in his evidence that Nii Odonkor had no authority to accept the plaintiff as the family’s grantee and that only Nii Kwanko had that authority. How could the defendant now seek to uphold the validity of this same tenancy by Nii Odonkor as a bar to the plaintiff getting back to the Osae family? In any case how well grounded is this view of counsel that after attornment of the tenancy the plaintiff could not go back to her former grantors? Is it the contention of the defendant that, even though Nii Odonkor and his Nii Kwanko lost whatever title they were projecting at the Supreme Court over the land, the plaintiff should stick to them and their vacuous title? I don’t see anything legally wrong in a grantee attorning tenant to a new landlord who proves that he is the new owner, in our case, with a court judgment. And if this new landlord subsequently loses his title what legal principle should prevent the grantee returning to his previous title, a title he already had. I can’t imagine any. I am of the view that it is for the grantee in such circumstances to adopt the appropriate means to secure his title, including resurrecting his earlier title documents. The circumstances of each case will determine what the law, including equity will do. I do not see the circumstances we have in this case calling for a decision that the plaintiff denied her landlords title and therefore should be forbidden from relying on that title. This common law principle of a grantee losing his title because he has denied or challenged his grantor’s title should be invoked bearing in mind the circumstances of each case. I will reject defendant’s counsel contention that the plaintiff cannot and should not be allowed to reject the vacuous title he got attorning tenancy to Nii Odonkor and falling on the new victor at the Supreme Court, the Osae family.
At this juncture it is worth assessing the importance of the Court of Appeal and Supreme Court judgments in relation to this case. The cross examination of parties in this case wrongfully, in my view, sought to seek the interpretation of these superior court judgments from the parties. That to me is clearly and obviously misplaced and unfair. How do we expect these lay persons in the law to bind the trial High Court with their interpretation of such high profile technical legal document? I think it will pay expeditious trial if counsel avoid such cross examinations.
At the end of the Court of Appeal session the grantors of the defendant were victorious but the court conferred usufructuary title in the Osae family over areas they have effectively reduced into their possession and the immediate environs. The court held that this usufructuary interest is subordinate to the allodial title of the Kle Musum quarter land which is held by the Tsie- We family of the Wulomo. This 15th July 2005 judgment continued that the Tsie We family cannot deprive the Osae family of their holdings as subjects of Teshie. It is noted that the defendant bought her land from the Nii Kwanko Klemusum Quarter in October 2005. The Supreme Court on the 7th May 2008 however reversed in part the Court of Appeal and gave the allodial title to the Osae family in respect of the Otinshie lands that the family and ancestors have effectively reduced into possession ie the buildings, farm lands and cemetery. Also very important is the finding that since the founder of the Otinshie village did not come from Klemusum Quarters, but rather from the Krobo Quarters, Klemusum Quarters should have no claim of right in any form to Otinshie village lands. It would be realized that even from the Court of Appeal judgement the plaintiff’s grantors were given usufructuary title over lands in their possession and immediate environs. Nii Kwanko and his elders therefore had no legal reason for granting land to the defendant which land Ebenezer Afutu testified, without challenge, was in the heart of Otinshie. The Supreme Court to which the case went on final appeal gave the Osae family the allodial title in respect of areas they have effectively reduced into their possession i.e. buildings, farm lands and cemetery. Again the grantors of the defendant had no legal right to grant land in the heart of Otinshie or anywhere in Otinshie, going by the Supreme Court judgment, to the defendant. The Osae family were the allodial owners and were entitled to grant the plaintiff the disputed plot the way they did.
Examined from another angle, the plaintiff, no doubt was in possession with her foundation ready for a storey building. This possession was forcibly disturbed by the defendant. I don’t think a court of law should give recognition to possession that was acquired through forcible ejection or eviction as happened in this case. I will therefore consider the plaintiff as one in possession who can be denied title only by someone with better title. Refer to section 48 of the Evidence Act, NRCD 323 on the value of possession. The defendant and her grantors, on the evidence, could not be persons with such better title as to evict the plaintiff from the land. Nii Kwanko, the defendant’s grantor who is the head of the Klemusum Quarter was held by the Supreme Court to have nothing to do with Otinshie lands. They therefore had no better title just like their grantee, the defendant, to challenge the possession of the plaintiff.
I can now deal with the defendant’s other ground of appeal- innocent purchaser for value without notice. Counsel for the defendant has made appropriate reference to the case of Hydrofoam Estates (Gh Ltd) vrs. Owusu & others reported in 2013-2014 Supreme Court Ghana law reports. This confirms the position of the legal authorities that it is for the purchaser to conduct appropriate diligence on the land he intends purchasing whether there is sufficient reason to abandon the sale because of suspected title defect. The Lands Commission is one of the points where the title of the vendor can be investigated. Very important is the land itself. Is there anything or information on or about the land that should raise any doubts in the mind of the purchaser of the grantor’s title? On the evidence there should not be any dispute that the plaintiff was in possession of this plot and had erected a fence wall, had a foundation meant for a storey building and a structure in which her caretaker resided. Nana Kofi Oppong who testified as an attorney for the wife told the court that when they were informed of the defendant’s trespass unto the land he went to the site and saw a bulldozer on the land. The contractor who was working on the land just told him they were on the land on the authority of a fair lady. Phone numbers he was given by other workers on the land happened to be fake. He had no alternative than to report to the police. The defendant admitted there were these structures on the land when it was sold to her in 2005. But her explanation was that the grantors told her the occupant was an encroacher, like several others on their lands. She asked for a site plan to conduct a search. The result of the search was that the land was not affected by any recorded transaction. This convinced her and she bought the plot. It would appear the police involvement encourage her to continue with the development on the land when the police appointed surveyor brought the report that the plaintiff’s land was 1000 feet away from the land they were disputing. Further encouragement to her, I believe, was when the plaintiff took the legal step of filing an injunction which was refused. I have examined the pictures of the wall that was demolished and the foundation in exhibit F series and they cannot fail to warn anybody that there was someone in actual physical possession that needed to be consulted by any other person intending to purchase this land. The height of the wall, more than the height of a Nissan Pick-up, in the picture cannot be expenditure a developer will want to simply throw away, even if he is an encroacher. And that the grantor of the defendant described the one on the land as an encroacher should have informed the defendant that there was an issue with the land that needed to be investigated. The normal thing in the circumstances was for the defendant to have located the encroacher for his side of the story and the authority for being on that land. The thinking that search reports from the Lands Commission confirm ownership of land is a ruse. The records in the files of the Land Commission does not confer title on the person registered with the Commission. The best it does is to give notice that there is someone who claims he has interest in that registered land. As the legal authorities point out, apart from the search, there was the need to do further enquiries on the land and its environs how safe it is to purchase any such land. Judicial notice can now be taken of the inaccuracies and fraudulent registration records with the Lands Commission, thus underlining the need for prospective land purchasers to conduct further enquiries and not rely on the Lands Commission records alone. In the instant case couldn’t the caretaker on the land have given the defendant the lead to the plaintiff? Was there any reason the agents of the defendant gave false contact numbers of the defendant to Nana Kofi Oppong? In the instant case the defendant did the search at the Commission and that was all. It is worth noting that the report from the Commission did not even mention her grantors as registered proprietors with the Commission. All it reported was that the land was not state land and there was no recorded transaction. How could such result of a search ginger the defendant to get herself embroiled in such litigation? Her other strength was from the police. Of course the police has no jurisdiction in land matters for the defendant to have taken their investigations as final and proceed to continue building on their permission or advise. If nothing at all, the report made by the plaintiff’s husband to the police was sufficient warning to the defendant that all was not well with her presence on this plot? There is mention also of a court injunction that was refused by the trial court. I have no doubt her counsel knew and should have educated her on the import of the injunction refusal and that it did not determine the case in her favour Her counsel should have told her that she was sinking her money into the development at her own risk. She told the court she was shown a court of appeal judgment by her grantors and that convinced her to purchase and forcibly took over the land. But then if she had consulted a lawyer she would have been advised that the victors in that judgment had the legal duty to proceed by a writ of possession to take over the lands declared in their favour, if they had recovery of possession as one of their reliefs, before they could claim ownership and legally dispose of any such lands. If she had consulted she would have known that there was an appeal against the judgment of the court of appeal. On the whole, the evidence, instead of showing that the defendant was an innocent purchaser for value, as contended on her behalf by her counsel, rather exposed the defendant, in my view as a hard and determined women committed to one course: an avowed course to snatch this land by all means, no matter the normal land purchase red lights flagged on her way. I will dismiss this ground of appeal too.
In conclusion I will uphold the trial judgment and dismiss the appeal in its entirety.