TORKORNOO (MRS), J.A.

The Plaintiff/Respondent commenced this action against the 1st Defendant/Appellant for the following reliefs:

a. A declaration of title to all Building Plot No. 56 Block B on the Boagyaa-Taabuo Stool Land with a One (1) bedroom house on it at Atimatim Taabuom is vested in the Plaintiff.

b. Recovery of possession.

c. Special damages of Two Thousand Ghana cedis (GH¢2,000.00) for the destruction of fence wall, gate and orchard.

d. General damages for trespass.

e. Perpetual injunction restraining the Defendant, his agents, servants workers, assigns etc. from having any dealings with or on the Plaintiff’s plot.

f. Costs.

In the title of the suit, he indicated that he was ‘suing for himself and on behalf of his brother Justice Kwaku Ennuson’. The 2nd Defendant later applied to join the suit.

The Respondent’s case in his Statement of Claim was that he purchased the property in issue ‘for his junior brother called Justice Kwaku Ennuson’ from the Boagyaa Taabuo Stool in 2003. He claimed to have been in quiet and undisturbed possession for nearly ten years when the Respondent trespassed on the property in 2012 and ‘laid waste’ to it by destroying inter alia the fence wall, gate, orchard of orange trees, sand, cement, concrete blocks. He concluded that he holds a superior title and the Appellant’s claim to the land is adverse, invalid and unlawful.

In his defence, the Appellant was also adamant that whoever allocated the land to the Respondent lacked capacity to do so. He averred that he properly acquired the land from the same Boagyaa Taabuo Stool after conducting a search on the land. He had also been recognized as owner of the land and exercised acts of possession such as paying rent to the Administrator of Stool lands, and rates. He counter claimed for

a. A declaration of title to Plot No. 56, Block B, being one building Plot located on Boagyaa-Taabuo Stool Land, Atimatim Taabuo in the Kwabre East District of Ashanti.

b. An order of perpetual injunction to restrain the Plaintiff, his agents, servants, workmen and all other persons claiming title through him from interfering with the Plaintiff’s quiet enjoyment of the said land.

c. General damages for trespass.

The 2nd Defendant also counter claimed for ‘a declaration that the Plaintiff’s grantor, Kofi Owusu lacked capacity to make grant of the disputed plot to him (Plaintiff) and that the said grant is invalid’

After a trial, in which the respective grantors testified in support of the parties to this appeal, the court concluded that the 2nd Defendant did not own the land in issue and cannot grant the land to the Appellant. He also found and held that at the time the 2nd Defendant was purporting to grant the land to the Appellant, it had already been validly granted to the Respondent. He gave judgment in favour of the Respondent on all the reliefs as endorsed on his writ of summons. He dismissed the Appellant’s counterclaims and awarded costs.

The Appellant appealed on the following grounds:

i. The learned trial judge erred in his failure to consider fraud as was established on the Plaintiff’s allocation note at the trial and its consequent legal effect.

ii. The learned trial judge failed to apply the legal principle of ‘bona fide purchaser for value without notice to the case of the 1st Defendant as was required at the trial.

iii. The judgment was against the weight of evidence.

He also filed an additional ground of appeal that ‘the learned trial judge erred in granting judgment for the Plaintiff when the Plaintiff lacked capacity to institute the suit’

In his submissions to this court, Appellant counsel focused first on the additional ground of appeal. He submitted that the Respondent’s case in his pleadings, evidence and documents tendered was that the property in dispute was acquired by him for Justice Kwaku Ennuson. As such, the beneficial owner and person entitled to the property and who had capacity in law to sue to protect his interest is Justice Kwaku Ennuson and not the Plaintiff/Respondent. He pointed to the fact that the Respondent did not sue as a lawful attorney for Ennuson. And this failure to obtain a power of attorney from Ennuson to represent his interests should be held as fatal to the action – because the Respondent lacked capacity to protect the land in his own right.

Citing the decision in Madina Shopping Mall Association v Rosehill Gh Ltd 2012 39 MLRG 81, he pointed out that if the Respondent was commencing the action in a representative capacity, that capacity should have been endorsed on the writ and proved.

He also pointed to the decision in Asante Appiah v Amponsah 2009 SCGLR 90 @ 95 where the Supreme Court held that ‘the failure of the Appellant to establish that capacity in which the action was prosecuted was sufficient basis on which to dismiss the Appellant’s claim’.

Citing Akrong v Bulley 1965 GLR 469 which decided that the suit was not sustainable because the Plaintiff was not clothed with the requisite capacity at the time of commencing the action, and Fosua Adu Poku v Dufie (deceased) & Adu-Poku Mensah 2009 SCGLR 310, where the Supreme Court decided that the question of capacity is fundamental and a matter of law which may be raised at any stages of the proceeding including on appeal, he submitted that the suit in the Respondent’s name should have been struck out for want of capacity.

Respondent counsel’s response to these submissions on capacity was that ‘the Plaintiff had capacity’ and that he ‘brought the action in a representative capacity for himself as the person who purchased the said plot of land and made payment and on behalf of his brother Justice Ennuson whose name he used for the documentation covering the land’. He cited the case of Banda v Ayisi 2015 82 GMJ 1.

It was his submission that the Respondent had a common interest and a common grievance with a common claim with Ennuson hence the representative action. He referred to the dictum of Lord Mcnaghten in Duke of Bedford v Ellis 1901 AC 1 as applied in Ghana Muslims Representative Council v Salifu 1975 2 GLR 246 CA, and Banahene v Hima 1963 1 GLR 323 in these words ‘Given a common interest and a common grievance, representative suit was in order if the relief was in its nature beneficial to all whom the Plaintiff proposed to represent’.

He went on to submit that the Respondent testified that he acquired the plot for himself and paid for the consideration from his own resources. On top of that, he has been in possession for 9 years and remained in possession. As such he has an interest worthy of protection. He pointed out that the issue of capacity was not contested in the court below because the Appellant recognized his interest and capacity to commence the action.

The next ground of appeal argued was the original ground 1.

It was the submission of Appellant counsel that the Respondent tendered as Exhibit B, a Plot Allocation Note over the land from the Boagyaa/Taabuo Stool as Ennuson’s source of title. This is found on page 241 of the Record of Proceedings (ROA). He submitted that this exhibit B was ‘seriously tainted with fraud’ and ‘a product of fraud’ for the following reasons.

The document is dated as issued and signed by one Nana Kofi Boamah 11 on February 26 2003. However, this chief died on January 14 2003 as shown by Exhibit 1. As such, the said Nana Kofi Boamah ‘could not have allocated the land in dispute to the Respondent as he is alleging since he was not alive on the February 26 2003’. He cited the case of Apeah v Asamoah 2003-2004 SC GLR 226 where the Supreme Court in its holding 4, reiterated the age old principle that a judgment obtained by fraud passes no title and a forged document or a document obtained by fraud passes no right.

He also cited Mass Projects Ltd (No 2) v Standard Chartered Bank & Yoo Mart Ltd (no 2) 2013-2014 1 SCGLR 309 where the Supreme Court held that ‘fraud vitiates every conduct; an allegation of fraud if proven and sustained will wipe and sweep away everything in its trail as if the thing had never existed’.

He concluded that with the root of title of Respondent’s claim being exhibit B, and with the establishment of ‘palpable fraud thereon’, the trial judge ‘should have dismissed the Respondent’s case, as it could not at law have formed the basis of proper transfer of title to the Respondent’

Respondent counsel disagreed with the above arguments. It was his submission that there was no evidence of fraud and the allocation note was not at all tainted by fraud. He said that the evidence was that the Respondent acquired the land in 2002 from Samuel Kofi Owusu and travelled out of the jurisdiction for a Masters program. He obtained the allocation note on his return and it had been signed already. He submitted that ‘it was when the grantor entered the name of his brother that he dated the allocation note and that is why it was dated in 2003 and not as a result of fraud’.

He went on to urge that PW1 explained the reason for the date on the allocation note. He explained that though the plots had been given to him by Nana Yaw Bonsu who was Odikro of Taabuom between 1991 and 2001, and the said chief had signed the allocation notes at the time of grant, his name had not been put on them because he had made it clear that he intended to sell the lands. Other witnesses had corroborated this testimony and there was therefore no issue of fraud to invite the ground of appeal. He also submitted that a completed judgment may be impeached on the ground of having relied on an instrument of fraud only in an action in which the allegation of fraud is pleaded, particularized and established at the trial by strict proof and not in the nature of appeal as done in this case. Fraud may also not be inferred from general situations or facts. He cited Republic v High Court Accra, Ex Parte Aryeetey (Ankrah Interest Party) 2003-2004 398 (not Ex-parte Aryeetey 2003-2005 1SCGLR 537) on this position of law.

The third ground of appeal argued is the original ground (iii) - that ‘the judgment is against the weight of the evidence’.

Appellant counsel submitted that PW1 stated in his evidence that his uncle, the then chief, give him the piece of land. However, PW2 contradicted that position in his claim that he – at a time when he was not even the Abusuapanin - was the one who made the grant to PW1. He pointed to the established position that it is only the occupant of a stool or head of family who is entitled to alienate stool or family land. He argued that PW2 could not have lawfully alienated family property to Kofi Owusu (PW1) and more so when he had admitted that the time of the alleged allocation, he was not the head of family.

Appellant counsel submitted that on the other hand, from the records, the land in dispute was transferred to the Appellant by the chief, the occupant of the stool and this evidence should have led to judgment in favour of the Appellant. Appellant counsel concluded by praying for the judgment to be set aside and judgment entered for the Appellant instead.

Respondent counsel was assertive that the Respondent was able to establish his root of title and been in long possession and that it was the Appellant who was not able to prove his title as claimed in the counter claim. He pointed out that the Appellant’s allocation paper tendered as exhibit 2 did not reflect the consent and concurrence of principal members of the stool and so was void in accordance with law. He cited Awuku v Tetteh 2011 1 SCGLR 366; Akwei and Others, Awuletey and Others 1960 GLR 231 and Akunsa v Botchway & Jei River Farm Ltd 2011 1 SCGLR 288 in support of this position.

He submitted that the testimony of the Appellant and co-Defendant implied a lack of knowledge about whether the land was vacant as at 2012, though clearly 2nd Defendant knew about the Respondent’s allocation of the land. He also pointed out that though in his pleadings the Appellant had averred that he had conducted a search at the Lands Commission that revealed that the land was not encumbered, he had testified that the search was at the Kodie and Mamponteng District Assembly. He concluded that the evidence on record does not support the case of the Appellant and their case should be dismissed.

Appellant made no distinct submissions on ground (ii) of the appeal.

Rule 8(1) of the Court of Appeal Rules 1997 CI 19 requires that every appeal is conducted as a rehearing. It reads:

8. Notice and grounds of appeal

(1) An appeal to the Court shall be by way of rehearing and shall be brought by a notice of appeal.

This means that this court is placed in the same position as the trial court with regard to all the pleadings, testimonies and exhibits. We have a duty to critically examine the whole record and come to our own conclusions and findings within the context of the grounds of appeal presented in the notice of appeal and determine whether the judgment should be sustained or overturned.

As a function of rehearing, we are satisfied that this appeal should fail in the large part and succeed on only one fractional point derived from the additional ground of appeal.

Although the Appellant in his additional ground of appeal submitted that the Respondent lacked capacity to institute the whole action, our evaluation is that that attack is not sustainable. This is because the determination of the respondent’s interests in this action is not a binary function of either the whole or nothing at all. The Respondent’s claims were six in number. And to the extent that the law enabled him to sue for any of the six claims, he had capacity to institute the suit for those particular claims. What the court ought to do is dismiss his claims for those claims that he is not entitled to.

The person designated on the Writ of Summons as Plaintiff in this suit is Reverend Dr. Paul Dapaa. Order 2 Rule 1 of the High Court (Civil Procedure) Rules 2004 CI 47 directs regarding commencement of proceedings that:

1. Title of parties

Subject to any existing enactment to the contrary, the party who commences civil proceedings shall be described as ‘Plaintiff’ and the opposing party shall be described as ‘Defendant’.

Since Dr. Dapaa commenced the suit, he is the Plaintiff. The further designation of the Plaintiff ‘as suing for himself and on behalf of Justice Ennuson” in this action cannot make Justice Kwaku Ennuson a party to the action, unless the requisite conditions for Dr. Dapaah suing on his behalf exists.

The requisite conditions are if he suffers from a disability that elides his capacity to act for himself in law, or if he holds the same interest in the property as Dr. Dapaa. From the records, Justice Ennuson does not suffer from any incapacity. He is therefore required by the rules of court to institute any legal proceedings in his own name. He cannot be an appendage of another person to enable the taking out of a writ ‘on his behalf’. Even artificial legal entities such as corporate bodies have to act in their own name. Where the interest being prosecuted is that of a disembodied group such as an unincorporated partnership, stool or family, the law specifically identifies those empowered with legal capacity to sue regarding their interest.

Disability which does not allow a person to commence his own judicial proceeding is defined under Order 5 Rule 1 of CI 47. This includes ‘a person under the age of eighteen years or a person who is certified by a medical officer to be incapable of managing and administering his or her property or affairs by reason of mental disorder or infirmity of mind.’ In such situations, Order 5 Rules (3) and (4) demand that the capacity to commence an action on their behalf depends on fitting into the specifically designated role of guardian ad litem or next friend. Such persons must also act by a lawyer.

The capacity of a party to an action is so important that if a party is under no disability, and yet for some reason commences an action through another person, then he must first authorize that person to act for him by a proper power of attorney, and still be the one designated as Plaintiff but acting ‘per his lawful attorney’. In the present case, it is not Justice Ennuson who is a Plaintiff acting ‘per an attorney’ but Reverend Dapaa who is purporting to act on behalf of Justice Ennuson. That designation cannot make Justice Ennuson a Plaintiff unless the action is a representative action.

The submission by Respondent counsel on appeal is that this was a representative action which should be upheld as such because the Respondent and Justice Ennuson had a common interest, a common grievance, and would receive a common benefit should this action succeed. We cannot agree because it grossly misconceives the law on the holding of interests in assets.

First in his pleadings and during the trial, the Respondent represented that he acquired the property for Justice Ennuson. He made the following case in paragraphs 4 and 5 of his Statement of Claim:

4. The Plaintiff states that he properly acquired the property from his landlord the Boagyaa/Taabuo Stool in 2003 for his junior brother cited as Justice Kwaku Ennuson who is out of jurisdiction of the Honourable court as at now

5. The Plaintiff states that he obtained the requisite documents covering the plot from the stool for his named brother which papers would be tendered in evidence during the trial of the matter’ (emphasis mine)

Respondent then went on to prove that the allocation paper given to him stood in the name of the said Justice Kwaku Ennuson in exhibit A. What that position did was to support the Appellant’s case that from the pleadings, testimony and documentary evidence of the Respondent himself, he established that title and proprietary interest in the land in issue being plot 56 block B at Boagyaa-Taabuo, is in Justice Kwaku Ennuson and not the Respondent.

The only legal interpretation that can be placed on Respondent procuring the property in the name of Justice Ennuson is that the Respondent was the agent of Justice Kwaku Ennuson in acquiring the land. The only legal interpretation in the Respondent exercising acts of possession over the land after acquiring it in the name of Justice Ennuson is that he became the licensee of the said Justice Ennuson who held the title to the land while allowing the Plaintiff the use of the land. This flows from the meaning of license from Section 139 of the Land Title Registration Act 1986 PNDC L 152 which reads:

‘licence’ means a permission given by a proprietor of land or of an interest in land which allows the licensee to do certain acts in relation to the land which would otherwise be a trespass, but does not include an easement or a profit’.

In Mensah v Blow 1967 1 GLR 424 at 428, 430 and 431, the Court of Appeal in enumerating the characteristics of a license under customary law also identified inter alia that the owner of the land must be willing to allow occupation and user of the land, provided the licensee does not set up an adverse claim to his title or right to possession; the licensee has a right to use the land equally with the grantors; throughout the period of occupation, the licensee at custom has a present right of possession and user over any portion of the grantor’s land to the extent of the permission granted.

Thus on any prism, the rights of a licensee have a different character from that of an owner. The Respondent and Justice Ennuson did not have a common interest in the land in issue. They also did not have a common grievance. And with the nature of the case submitted in court, they ought not to have been accorded a common benefit. By the Respondent’s own pleadings, Justice Ennuson was presented as the holder of the proprietary interest in the land while the Respondent was presented as having the benefit of undisturbed possession.

From all these factors, our holding is that the fact of the inclusion of the name of Justice Kwaku Ennuson in the heading of the suit, without more, cannot and does not render him a party with Reverend Dr. Paul Dapaah who was the Plaintiff in the High Court and Respondent in this appeal. We dismiss Respondent counsel’s submissions that this action was commenced as a representative action.

Since it is the Respondent’s case that title is in Justice Ennuson, then the Respondent cannot be entitled to his first claim of a declaration of title to the land in dispute. The learned trial judge erred in not making this finding from the record before him.

It is for this reason that the Appellant’s ground of appeal that the Respondent did not have the capacity to institute the action must be upheld only with respect to the claim for ‘declaration of title’. The granting of the first claim of ‘declaration of title to all Building Plot No. 56 Block B on the Boagyaa-Taabuo Stool Land with a One (1) bedroom house on it at Atimatim Taabuom’ is reversed.

Having held thus, we will now consider whether the Respondent had capacity to claim recovery of possession, damages for destruction of the wall, damages for trespass, injunction and costs for this action.

Case law upholds the right of a person in possession to sustain an action against a trespasser. Indeed, so strong is the entitlement given by possession that even a trespasser in possession can maintain an action against a later trespasser. In Wiredu and Another v Mim Timber Co Ltd 1963 2 GLR 167 @ 171, the Supreme Court said that ‘It is well settled law that a person in possession of land, though himself a trespasser, is entitled to maintain an action for trespass against any person who disturbs his said possession except the person in whom title to the land is vested or any one claiming in the right of the true owner, i. e. as his agent or representative. Since the Plaintiffs were in possession of the land before the Defendants’ entry thereon, the Plaintiffs are entitled, upon the principle of law stated above, to succeed against him unless he, the Defendant, succeeded in proving a better right to possession of the land.’

And every wrongful act against property is actionable under trespass to land – including unlawful entry by one person on land in the possession of another, even though no actual damage is done. See Halsbury’s Laws of England Vol 27 4th Ed, Butterworths London at para 1384. The learned authors clarify at para 1396 that trespass is an injury to a possessory right and therefore the proper plaintiff in an action of trespass to land is the person who was or who is deemed to have been, in possession at the time of the trespass. It is the person in possession of land who can sue a trespasser.

In Nkyi X1 v Kuma (Bedu Subst) 1959 GLR 281, in evaluating the claims in issue, the court stated on page 284 that ‘..The true owner’ must therefore be interpreted to include a defendant who claims a right to possession as a grantee, a tenant, a licensee, or one having permission of the person in whom it is shown, upon the evidence, that the legal title in land is vested. It is only a defendant pleading jus tertia (i.e. that title is vested in neither the plaintiff nor himself, but in some third party through whom he does not claim) who cannot resist the effect of proof of the plaintiff’s possession. It is in such cases, and such cases only, that a claim in trespass puts nothing more that possession in issue’

Also to be noted is that although licenses are not registerable interests in land, they are recognized and given rights protected by statute. Sections 87(1) and (2), and 111 (1) (h) of the Land Title Registration Act 1986 PNDC L 152 read

87. Licences

(1) Without prejudice to section 111, a licence shall not be registered under this Act

(2) A licence relating to the use or enjoyment of land is not enforceable against a bona fide purchaser for valuable consideration unless the licencee has protected the interest of the licence by lodging a caveat under section 111

Restraint on Disposition

111. Caveats

(1) A person who

(h) is entitled to a licence may lodge a caveat with the land registrar prohibiting the registration of dispositions and the making of entries in the register affecting the land or interest

PNDC Law 152 allows a licensee to even lodge a caveat with the registrar to stop the registrar from permitting dispositions and making entries in the register that would be adverse to his license that is exercised on the land. It gives statutory backing to the common law right of a licensee to defend his possession and enjoyment of his licence against trespassers

In the case before us, the testimony of the Respondent is that he exercised acts of possession over the property after he acquired it in the name of Justice Ennuson. When the Appellant appeared on the scene, he resisted him to the extent of going to a police station, and finally sued in court. With the position that he was in possession of the property, Respondent has the fundamental entitlement that grounds capacity to commence the action for the remainder of the claims (b) to (f). The additional ground of appeal is dismissed except for the fractional finding regarding the very first claim for declaration of title.

The next ground of appeal argued is ground (i). The Appellant has submitted that the allocation note to Ennuson is tainted by fraud because the first signatory, Nana Kofi Boamah 11 died on 14th January 2003, whereas the date found written across his signature is 26th February 2003. Appellant counsel urged that ‘the said Nana Kofi Boamah could not have allocated the land in dispute to the Respondent hereto as he is alleging since he was not even alive on the said date’.

He said that the simple inference that can be drawn is that the Allocation Note – exhibit B, is a product of fraud which passes no title and vitiates every conduct.

As much as it is trite knowledge that fraud vitiates everything it touches, it is also trite knowledge that fraud must be proved beyond reasonable doubt. Now PW1, the grantor of the Respondent’s principal had this to say about the allocation paper during examination in chief that can be found on pages 66 and 67 of the Record of Appeal:

‘I got the plot from my uncle. My said uncle was Nana Yaw Bonsu who was the Odikro of Taabuom. My uncle gave me this plot around 1999 to 2001…..When my uncle gave me the plot he signed all the allocation papers for the 4 plots but I did not put my name on the allocation paper…. I sold the plot to the

Plaintiff in 2002. …I gave the Plaintiff an allocation. When my uncle gave me the plot he signed all the allocation papers for the 4 plots but I did not put my name on the allocation paper. I therefore put the name of the Plaintiff’s cousin and gave same to Plaintiff’

Under cross examination when he was asked concerning Nana Boamah’s time of death (found on page 70 of the ROA)

Q. He died in January so he could not have signed Exhibit B in February

A. He signed earlier before the names were put in

Q. This is not true

A. It is very true. I was in charge of the records

PW3 who was the Abusuapanin who signed this same Allocation note said in Examination in Chief

‘I signed the allocation but Kofi Owusu asked me not to put any name and No of the Allocation paper because he will sell the plot later. The said allocation paper is exhibit B. The signatures of exhibits are Nana Kofi Bonna (Boama) the Boagya chief, Nana Yaw Bonsu the Odikro of Taabuom. I am the 3rd signatory, at that time I was the Abusuapanin. I later heard that he gave the plot to the Plaintiff. Exhibit B is not forged’.

Clearly, none of these witnesses agreed that Nana Kofi Boamah’s signature was forged or that the Allocation Note was forged. Their testimony was that the allocation note was signed between 1999 and 2001 before Kofi Owusu sold the property and put Justice Ennuson’s name thereon. Their testimony was that they signed the document on different dates. This introduced the counter inference that different parts of the same document were filled in at different times. Another potent part of their testimony was that Nana Yaw Bonsu, the Odikro of Taabuom who was very much alive after 14th January 2003 and 26th February 2003 and died in 2005 was part of the allocation to PW1. He was supported by the Taabuom overlord Nana Boamah and the Abusuapayin Louis Ntim.

In Teye v Feneku 2001 -2002 SCGLR 985 Supreme Court held inter alia that ‘the law regarding proof of forgery or any allegation of a criminal act in a civil trial was governed by section 13 (1) of the Evidence Decree 1975 (NRCD 323, which provided that the burden of persuasion required proof beyond reasonable doubt’

So in that case, when the Supreme Court was not satisfied that forgery had been established beyond reasonable doubt, it upheld the decision of the court of appeal against a finding of fraud.

Section 11 (2) and (3) The Evidence Act 1975 NRCD 323 define the burden of producing evidence in criminal matters thus:

11 Burden of producing evidence defined

(2) In a criminal action, the burden of producing evidence, when it is on the prosecution as to a fact which is essential to guilt, requires the prosecution to produce sufficient evidence so that on the totality of the evidence a reasonable mind could find the existence of the fact beyond a reasonable doubt.

(3) In a criminal action, the burden of producing evidence, when it is on the accused as to a fact the converse of which is essential to guilt, requires the accused to produce sufficient evidence so that on the totality of the evidence a reasonable mind could have a reasonable doubt as to guilt.

With this requirement of the law of evidence, it is clear that the insistence by the Respondent and his witnesses that the signature of Nana Kofi Boamah was authentic, and that it was placed on the Allocation note before the death of the chief, raised doubt regarding the date on the signature being the date that the Chief allegedly signed the Allocation Note. The burden was shifted on to whoever alleged that the signature on Ennuson’s allocation note was forged because of that date to prove that forgery.

My humble opinion is that if the Appellant and 2nd Defendant were inclined to present a proper legal attack against the allocation note regarding Nana Kofi Boama’s’s signature, they should have set out the allegation of fraud in their pleadings, and provided particulars of the said fraud to put this matter in issue. Neither of them did so.

Thereafter, PW1’s answer should have compelled them to set out to prove that the said signature was not authentic. But without more, this court cannot find that fraud in the form of forgery of Nana Boamah’s signature was proved by reason of the date stamped on it and that this tainted the validity of the allocation note. The second ground of appeal is dismissed.

We consider ground (iii) of the appeal which was argued next. This is whether the judgment is against the weight of evidence. The learned trial judge stated the essence of the validity of the Appellant’s claim to title succinctly on the page 6 of his judgment. He said

‘the determination of which of the 2 grantors (being the Plaintiff grantor and 1st Defendant’s grantor) is eligible to grant the disputed property would also determine in whose favour the case should tilt, that seem to be the crucial issue at stake’

Appellant counsel submitted that ‘During the trial there was a clear failure on the part of the Respondent to properly establish his root of title as is required by law’. He urged that there was inconsistency in the testimonies of PW1 and PW2 in that PW1 said it was his uncle Odikro who gave him the land while PW2 said he gave the land – at a time when he was not even Abusuapanin. He said PW2 could not grant stool land whereas the Appellant’s grantor, as chief, is the one who could do so under law.

We note with interest, just like the trial judge, that the 2nd Defendant had not counter-claimed for a declaration that he was the owner in possession with the right to confer proprietary interest in the land on the Appellant. He seemed to take for granted his position that as ‘Odikro’ of Atimatim Taabuom, the law supported his capacity to dispose of the land in issue. As such, his counterclaim attacked the grantor of Justice Ennuson and was for a declaration that Kofi Owusu lacked capacity to make a grant of the disputed plot and that the said grant is invalid.

However, as the trial judge rightly pointed out, the case of the 2nd Defendant and Appellant’s grantor in his Statement of Defence, was that the land was his and it became his even before he became the Odikro/Chief. It was not his case in his pleadings that his right to alienate the land arose from his being installed a chief. He claimed in paragraph 3 of his Statement of Defence found on page 47 of the Record of Appeal that ‘…he is an elder of the Boagyaa Taabuo stool and while in possession of the disputed land, he had constructed a wall around the said land in 1998 and started a poultry farm on it and put up two rooms thereon.’ He went on to say in paragraph 5 that ‘about one month after he had ascended to the throne, he allocated the disputed plot to the Defendant…’

So the learned trial judge rightly surmised that ‘since his version is that the land was his before he became a chief, the most important thing 2nd Defendant is to prove is how the land became his even before he became a chief’ (page 8 of the judgment).

And within that context, the judge found that 2nd Defendant was unable to show in any way how the land became his before he became a chief. On the last page of the judgment, the judge said that he ‘could not lead any evidence about how he acquired the disputed plot’. We have scanned the entire record and must agree with the trial judge.

The record is replete with evidence that confirms that the Boagyaa-Taabuo stool allocated lands by issuing allocation notes. The 2nd Defendant could boast of no such allocation before he became a chief, though he alleged that he had been in possession of the land from as far back as 1998. Thus even if he indeed had anything to do with the land before 2005, when he was supposed to have succeeded Nana Yaw Bonsu who was Odikro before him, or before 2012 when he signed the allocation note to the Appellant, that alleged possession was not supported by a proprietary interest conferred on him by the Boagyaa-Taabuo stool that all the parties clearly deferred to. And that possession was challenged by evidence which showed allocation to PW1.

Contrary to the lack of documentary support for the 2nd Defendant’s alleged possession of and title to the land from as far back as 1998, the Respondent paraded witnesses who presented that the disputed land had been validly allocated to Ennuson’s grantor Owusu by 2001. It is noteworthy that the Respondent’s witnesses are all related to each other and to the 2nd Defendant. They are in fact brothers.

PW1 Owusu was the grantor who sold the land to Ennuson and is the older brother of the 2nd Defendant. PW2 was the Abusuapanin of the Taabuom family stool at the time of the trial, and testified that he is the caretaker of all family properties and the person who appoints a chief. He testified firmly that the land was indeed allocated to Kofi Owusu and it was Owusu who was in charge of the family poultry farm at the time it collapsed and so wanted to sell same. He testified that Owusu had sold the land more than 9 years prior to his testifying in court. He confirmed that he was the person who allocated the lands to his brothers and recorded same and he was the one who allocated the land to Kofi Owusu and he did this at a time when the 2nd Defendant had not become the chief.

He confirmed that PW3 was the Abusuapanin in 2003 at the time Ennuson’s allocation note was signed. His testimony and that of PW1 and the Respondent were all confirmed by PW3 who was Abusuapanin in 2003 and who signed Ennusons’s allocation note. PW3 also confirmed that all the Respondent’s witnesses and the 2nd Defendant are all brothers. They were all from the royal family. What was even more significant is that all these witnesses confirmed that the Appellant had been warned off the land in 2012 when he alleged that the 2nd Defendant had sold it to him. He was informed that the land had already been allocated to PW1 who had sold it.

So while 2nd Defendant claimed to have been in possession of the land from 1998, his other brothers testified with one voice that the land was allocated to Kofi Owusu who run the poultry farm before the land was allocated formally to him in the same period of time. They all testified that allocation notes over the lands given to Kofi Owusu were duly executed for Kofi Owusu and left blank for the names of those he sold to, to be filled in. They also recognized Ennuson as the person Owusu sold to, and recognized the Respondent as the one who acted on behalf of Ennuson. They all recognized the Respondent as the one who had been in possession of the land since it was sold through him to Ennuson.

In contradistinction, the 2nd Defendant’s positions were incoherent at best. While he claimed to have obtained the land and been in possession from 1998, he did not stand on any such ownership as what gave him the right to alienate the property. On page 146 of the ROA, he was asked:

Q. Do you have any plot?

A. Yes.

Q. Is your name recorded in the duplicate?

A. No, because I am Odikro so all the plots belong to me.

On page 147, this was the exchange

A. The place was a poultry farm for the family and it later collapsed and plot no 56 became mine and I was on the plot for my poultry.

Q. The poultry farm did not belong to you.

A. The one on plot 57 was for me.

He recognized PW2 as his Abusuapanin and said so in cross examination found on page 144.

Q. Do you know one Kotei Manu?

A. Yes.

Q. How do you know him?

A. He is my Abusuapanin.

And yet, the allocation note he ostensibly signed for the Appellant was witnessed by one Opayin Kwabena Bonsu as Abusuapanin and it was he who introduced this person to the Appellant as his Abusuapanin. It was not even signed by the Boagyaahene.

These were his words found on page 148

Q. See Exhibit 2 who signed for Abusuapanin?

A. Op Kwabena Bonsu.

Q. When was allocation paper given to 2nd Defendant?

A. 2012.

Q. You agree that Nana Kwaku Manu is the Abusuapanin.

A. Yes.

Q. When was he installed as Abusuapanin.

A. 2004.

Q. Are you saying the Abusuapanin who signed Exhibit ‘11’ was not Kotei Manu?

A. Yes.

Q. You agree that Kotei is still the current Abusuapanin.

A. Yes.

Q. He has been the Abusuapanin since 2004.

A. Yes.

Q. The allocation paper you give to 1st Defendant is forged because the Abusuapanin did not sign.

A. Incorrect because as an Odikro I am more powerful than the Abusuapanin.

From the above, the judgment that the 2nd Defendant could not lead evidence about how he acquired the disputed plot and so could not grant the land to the Appellant is not against the weight of the evidence. Again, the judgment that Pw1 was able to trace his mode of acquisition of the disputed land after which he transferred same to the Respondent is not against the weight of the evidence.

The Respondent carried a burden to prove his interest as the person in possession of the property. And he did this strongly. As already set out, he paraded witnesses who were the strongest witnesses anyone faced with challenge to his title can present. These people were the grantor of the land to his principal, and the royal family member who allocated the land to the grantor more than ten years before the dispute. They included the Abusuapanin who signed the grant to his principal in 2003, and the current Abusuapanin who should have endorsed the Appellant’s allocation even if the 2nd Defendant’s allocation to the Appellant was valid – as PW3. But not only did the PW3 not endorse Appellant’s allocation note, he testified that Appellant had been warned that the land was encumbered.

What was the weight of the other documentary evidence tendered by the Appellant such as the building permit, demand for and receipt for stool land rate paid to the district office of the Administrator of Stool Lands? I do not see it as exonerating the Appellant from the notice he had from Respondent’s witnesses that the land was encumbered. It is now the established position that even registration of landed interest does not elide the obligation in equity to take notice of prior encumbrances on land. In its holding 1 in Amuzu v Oklikah 1998/99 SCGLR 141, the Supreme Court said ‘the Land Registry Act 1962 (Act 122) did not abolish the equitable doctrines of notice and fraud; neither did it confer on a registered instrument a state-guaranteed title. Consequently, a later instrument could only obtain priority over an earlier one by registration under section 24 (1) of Act 122 if it was obtained without notice and fraud of the earlier unregistered instrument. Since in the instant case, the plaintiff had actual notice that the land was in some way encumbered, he would be held to have constructive notice of the earlier grant to the defendant’

A bona fide acquisition of interest must be with no notice of any earlier encumbrance. We hold that the judgment dismissing the Appellant’s claim to title was not against the weight of evidence. Ground (iii) of the grounds of appeal is dismissed

We also dismiss the ground of appeal that the Appellant was a bona fide purchaser of the property. We do so because of the glut of testimonies that the Appellant was warned by all the Respondent’s witnesses, that the land in issue had been allocated to PW1 and sold to Respondent’s principal at least nine years before his presence on the land was detected. From the totality of the evidence therefore, the Respondent has proved his entitlement to quiet enjoyment of the land and the judgment granting Respondent’s reliefs (b) to (f) is affirmed.

Save for the upholding of the ground of appeal that Respondent had no capacity to claim for a declaration of title to the land in issue, the appeal is dismissed.

Cost of Four Thousand Ghana Cedis (GH¢4,000.00) in favour of the Plaintiff/Respondent.

(Sgd)

Gertrude Torkornoo (Mrs.)

(Justice of Appeal)

(Sgd)

Ayebi                           I Agree           E. K. Ayebi

                                                         (Justice of Appeal)

(Sgd)

Domakyaareh            I Also Agree  A. M. Domakyaareh (Mrs.)

                                                            (Justice of Appeal)