IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ACCRA - A.D 2017
ANGELA OFORI AND AKOSUA BIRAGO - (Plaintiff/Appellants)
NII TETTEY KOJO II AND ASAFOATSE (SNR) - (Defendants/Respondent)
DATE: 16TH NOVEMBER 2017
CIVIL APPEAL NO: H1/156/2017
JUDGES: M. OWUSU (MS) J.A. (PRESIDING), I. LARBI (MRS) J.A, M. M. AGYEMANG (MRS) JA
MR. ANTWI ABANKWAH FOR PLAINTIFFS / APPELLANTS
MR. A.G BOADU FOR DEFENDANT/RESPONDENTS
In this appeal against the judgment of the High Court Land Division, the plaintiffs/appellants (hereafter referred to as the appellants), seek a reversal of the judgment of the court below delivered on the 28th day of July 2016.
These are the antecedents of the present appeal.
The appellants are Ghanaians resident in the United Kingdom who entered into a transaction for the purchase of land situate at Ayawaso in the Greater Accra Region, designated to be two plots of land and described in the schedule to the Statement of Claim as: “bounded on the northeast by a proposed road measuring 141.2 feet more or less, on the southwest by lessor’s land measuring 140.3 feet more or less, on the southeast by lessor’s land measuring 101.4 feet more or less on the northwest by lessor’s land measuring 100.5 feet more or less and containing an approximate area of 0.13 hectares or 0.336 acres more or less…”
The transaction was between the two appellants and one Samuel Kofi Adom. The latter had allegedly been sold the said two plots of land by one Adekpo, with the authority of the Ayawaso Stool. The respondents, as representatives of the Ayawaso Stool confirmed the transaction by signing an indenture dated the 20th May 2004 conveying the land described in the site-plan attached thereto, to Samuel Kofi Adom.
Samuel Kofi Adom then entered into a transaction with the appellants, to sell his interest in the land to the appellants, and purported to transfer same, not by conveying same to the appellants, but by simply erasing his name and substituting the names of the appellants for his own on the indenture dated 20th May 2004 by which the land had been conveyed to him by the respondents.
The appellants went into possession of one half of the land described in the indenture per their agent Eric Nyarko. This agent (who was also described as the son of the first plaintiff), put up a structure up to lintel level on one plot and suspended work thereat due to lack of funds. When after a while, here turned to continue with the building project, he found someone else on the other plot of land. He therefore went to the respondents who were described as the lessors in the indenture, to inform them of the matter. An investigation conducted by the respondents revealed that the indenture by which the appellants made their claim was doctored, that the lessee’s name had been erased and in its place the appellants’ had been inserted. Furthermore, the area covered by the said indenture included land that the respondents had sold to the fourth defendant herein.
Samuel Kofi Adom, at the invitation of the respondents, appeared before them and admitted that he had tampered with the indenture the respondents had given him with the intent of transferring the interest he had acquired to the appellants. For this act which was considered abominable, and for the respondents to issue a new indenture, the said gentleman was asked to provide the following items which would be used to pacify the deities of the area: GHC1, 000, a live sheep, a bottle of whisky, and an undisclosed number of bottles of schnapps. The sum of GHC1000 which was reduced to GHC600 was later retained when the appellants allegedly asked for the preparation of two indentures instead of one, dividing the original land demised into two, to be held by the plaintiffs. GHC500 was also paid by the appellants to the surveyor who was to draw up the site plan for the indenture.
It was the appellant’s complaint that having provided all that was asked, and therefore having purportedly stepped into the shoes of the original grantee Samuel Kofi Adom, the respondent failed to prepare two indentures for them covering the land demised to the original grantee, but rather prepared one indenture, by which only one plot (half of what they had sold to Samuel Kofi Adom), was demised to them.
Having joined issue with the appellants, the respondents each gave a differing account of the transaction. At the close of the evidence, the learned trial judge dismissed the suit and entered judgment for the respondents herein.
It is against the said judgment that the instant appeal has been brought.
The appellants set out five grounds which we reproduce at length:
i. The judgment is against the weight of the evidence;
ii. Since the facts found in the case lead irresistibly to the conclusion that the plaintiffs came to stand in the shoes of one Samuel Kofi Adom the lessee of the defendants whom the defendants had granted the piece of land measuring 0.326 acre the judge was wrong in confirming the defendant’s decision giving plaintiffs land less than S.K. Adom’s land;
iii. The judge completely misunderstood the facts of the case especially the relationship between the plaintiff and the defendants vis-a-vis Samuel Kofi Adom by treating plaintiffs as having gone to the defendants to negotiate for acquisition of land from the defendants since Samuel Kofi Adom had already acquired the land as the lessee of the defendants;
iv. The judge made wrong conclusions from the facts of the case which were clear and unambiguous.
We will, in considering the matters raised in the appeal, first deal with a preliminary matter of procedure. Although the appellants argued at length the second and third grounds of appeal, we are minded to disregard all the arguments proffered in that regard for the reason that the said grounds as formulated sin against Rule 8 (4)and (5) and (6) of the Court of Appeal Rules CI 19.
The said sub-rules read:
“8(4) Where the grounds of an appeal allege misdirection or error in law, particulars of the misdirection or error shall be clearly stated.
8(5) The grounds of appeal shall set out concisely and under distinct heads the grounds upon which the appellant intends to rely at the hearing of the appeal without any argument or narrative and shall be numbered consecutively.”
“Rule 8(6) No ground which is vague or general in terms or which: discloses no reasonable ground of appeal shall be permitted, except the general ground that the judgment is against the weight of the evidence; and any ground of appeal or any part of the appeal which is not permitted under this rule may be struck out by the Court of its own motion or on application by the respondent.”
It seems to us that all three grounds, the second, third, and fourth grounds do not meet the criteria laid down in the said sub-rules as they fail to set out with clarity, the alleged error made by the court below: of fact, of law, or a misdirection with particulars of such. Instead, grounds (ii) and (iii) contain narratives and arguments which presume matters upon which no findings of fact were made by the court below. The last ground clearly sins against sub-rule 8(6) as it is vague in terms, and discloses no reasonable ground of appeal. We will therefore strike out all three grounds as lacking competency.
That leaves the first ground which complains that the judgment is against the weight of the evidence. It must be noted that although grounds (ii), (iii) and (iv) have failed, what may be gleaned from their language, is a complaint about the evaluation of the evidence. This is taken care of in the said first ground which invokes this court’s jurisdiction exercisable under Rule 8(1) of the Court of Appeal Rules CI 19, to rehear the matter. Ground (i)invites us(being in much the same position as the trial court regarding the evidence led), to evaluate same, and arrive at our own conclusions regarding whether or not the findings of the trial judge are supportable from the evidence adduced, see: Agyenim-Boateng v Ofori and Yeboah  SCGLR 861.
We will make short work of the instant appeal, for having apprised ourselves of the transaction with regard to the evidence led at the court below, it is our view that the judgment of the learned trial judge’s findings and the applicable law are wholly supportable.
In our judgment, the arguments proffered by the appellants in their submission are altogether untenable in law.
We uphold the finding of the learned trial judge that the plots of land which were the subject of the indenture were never transferred to the appellants by erasing the name of the lessee and substituting same with other names. The said act would not have the effect of conveying the interest of the lessee to them. Rather, the said act sought to introduce non-parties into the transaction of 20thMay 2004 between the lessor Ayawaso Stool and Samuel Kofi Adom the lessee of the parcel of land demised thereby, for it altogether altered the transaction and created legal relations between the Ayawaso Stool and the appellants who were unknown to the lessor stool. The said act, which the appellants insist was merely a minor and insignificant act was in fact a major act that purported to alter the parties to a concluded contract, unknown to one of the contracting parties. There was thus in spite of the tedious and tortuous arguments canvassed by the appellants, no privity of contract between the appellants and the lessor stool.
The appellants took nothing from the lessee Samuel Kofi Adom, for he failed to convey his interest to them, and no transaction, whether to pacify local deities or simply to extract monies from the appellants, could place the appellants in the shoes of the lessee as canvassed by the appellants at the court below and in this court.
We are wholly in agreement with the learned trial judge that the legal reality remained unchanged even after the items which were demanded whether as fine from the lessee, or however designated from the appellants. This is because in our judgment, the only legal way in which the interest in the said land, already acquired by Samuel Kofi Adom could pass to the appellants was by way of an assignment or the grant of a sub lease.
Indeed it is our view that the Ayawaso Stool which had by the indenture of 20th May 2004, divested itself of its interest in the land for the period stated in the indenture,did in fact, in the adventure of rectifying the lessee’s mistake, err when it purported to grant a portion of the said land to the plaintiffs in an apparent bid to correct what the lessee had done.
But although done in apparent ignorance, the Stool (with the misguided apparent motive of rectifying the mistake of the lessee who dealt with the appellants), decided to deal with the appellants by conveying some of the land contained in the indenture to the appellants. As aforesaid, having divested themselves of their interest, on the principle of nemodat quod non habet, the Stool was not in the position to convey the same land to the appellants for theirs was a residual interest. But even if (as canvassed by the appellants), the items and money demanded for pacificatory rites had had the effect of reentry by the Stool of the land demised onto Samuel Kofi Adom - thus clothing the Stool with capacity to deal with the land in a fresh grant, there was no obligation upon the Stool to convey the exact proportions of the land they had sold to Samuel Kofi Adom when there had been no agreement between the Stool and the appellants for such to be conveyed to them.
We are not persuaded by the arguments of the appellants that as the Stool dealt with the appellants because of the indenture which was doctored and because monies and items were demanded as pacification, the appellants stood in the shoes of the lessee with the right to receive a conveyance of the same dimensions of the land. As aforesaid, the only circumstance under which the appellants could step into the shoes of the lessee was by way of the assignment of his interest, or a carving out of some of the lessee’s interest by way of a sublease, see: B.J. Da Rocha and C.H.K. Lodoh’s Ghana Land Law And Conveyancing 2ND Ed. 47. In the absence of either of these, there being neither privity of contract nor privity of estate between the appellants and the respondent, the appellants were not entitled to all that land acquired by the lessee Samuel Kofi Adom in the transaction between him and the Ayawaso Stool, from the respondents, the representatives of the lessor Ayawaso Stool.
With regard to the facts as introduced in evidence and the law as applied by the learned trial judge, she was not in error.
We find that the appeal is without merit and is accordingly dismissed. The judgment of the trial court is hereby affirmed.
MABEL M. AGYEMANG (MRS.)
(JUSTICE OF THE APPEAL COURT)
OWUSU J. A. I agree MARIAMA OWUSU
(JUSTICE OF THE APPEAL COURT)
LARBI, J. A. I also agree IRENE C. LARBI (MRS.)
(JUSTICE OF THE APPEAL COURT)