KOIWAH INVESTMENT CO. LTD., GERSHON ADJIN, DR. ADU GYAMFI & INTERNATIONAL CENTRAL GOSPEL CHURCH vs. JUSTICE GILBERT MENSAH QUAYE
  • IN THE SUPERIOR COURT OF JUDICATURE
    IN THE COURT OF APPEAL
    ACCRA - A.D 2017
KOIWAH INVESTMENT CO. LTD., GERSHON ADJIN, DR. ADU GYAMFI AND INTERNATIONAL CENTRAL GOSPEL CHURCH - (Defendants/Appellants)
JUSTICE GILBERT MENSAH QUAYE - (Plaintiff/Respondent)

DATE:  2ND NOVEMBER, 2017
SUIT NO:  H1/73/17
JUDGES:  GYAESAYOR J.A. (PRESIDING), DZAMEFE J.A., WELBOURNE (MRS) J.A
LAWYERS:  COUNSEL FOR PLAINTIFF/RESPONDENT - WILLIAM A. ADDO
COUNSEL FOR DEFENDANTS/APPELLANTS - BABA AVIO
JUDGMENT

WELBOURNE (MRS), J.A.

This is an appeal by Defendants/Appellants against the judgment of the High Court delivered on the 5th November, 2015.

 

The background facts

The Plaintiff, substituted by Daniel Mensah Quaye claimed against the Defendants/Respondents Declaration of Title to all that piece or parcel of Land at Batsona, Nungua bounded on all side by Nungua Stool land and measuring on the North 2640 feet, on the South 264 feet on the West 2640 feet, on the East 2640 feet and covering an area of 160 acres, recovery of possession, damages for trespass and perpetual injunction.

 

The Plaintiff averred that Daniel Quaye Tawiah popularly known as Quaye Nungua was the owner of the said land. That the said Daniel Quaye Tawiah of Nungua became the owner thereof by virtue of settlement and farming long before the Nungua Stool, by Deed of Gift dated the 14th November, 1958 and registered at the Deeds Registry as No.2078/1960 granted the land to him.

 

The Plaintiff further stated that since the grant, the late Daniel QuayeTawiah and his family have been in undisputed possession of the land by continuing to cultivate it and in recent times developing parts thereof. The Defendants without any justifiable cause or reason have with the assistance of some armed hirelings moved heavy earth moving equipment onto the said land by clearing and laying waste the parts yet to be developed.

 

The 1st Defendant by its amended statement of defence denied the claim of the Plaintiff. 1st Defendant stated that the alleged gift registered as 2078/1980 is void by virtue of the judgment of the High Court by Ollenu J (as he then was) delivered on 27thJuly,1962 in suit No. 151/1960 and entitled Borkete Osonoware & 23 Ors v Nii Odai Ayiku IV and Quaye Tawiah.

 

According to the 1st Defendant, since there was no appeal against the said judgment by Ollenu J, the said judgment operates as estoppel per rem judicatam. That the alleged Deed of Gift is not known in the records of the Lands Commission and that even if it is known it is of no legal effect by virtue of the late Justice Ollenu’s judgment in suit No. 151/1960.

 

The 1st Defendant further alleged that the Plaintiff has been using fraudulent and forged documents to make claims on the land and that the Site Plan in Plaintiff’s document refers to an entirely different land. It was the case of the 1st Defendant that it obtained a grant of the land from the Nungua Stool and registered same as No.840/95. That when 1st Defendant was granted the land it presented its documents for registration and the Lands Commission deleted the area in dispute from 1st Defendant’s Site Plan but the Lands Commission was directed to plot the area in dispute in 1st Defendant’s name when he brought an action against the Lands Commission in suit No.C1/343/07.

 

The 2nd, 3rd and 4th Defendants also denied the claim of the Plaintiff and stated that after conducting searches at the Lands Commission which confirmed the 1st Defendants as the owner of the land they paid valuable consideration for same and that they were purchasers for valuable consideration without notice of any adverse claim to the land in dispute.

 

The learned trial judge after hearing the parties on the issues set down for trial, resolved all the issues in favour of the Plaintiff and entered judgment for the Plaintiff for all the reliefs. In his judgment the trial Judge stated inter alia as follows:

“From the content of the judgment, Exhibit ‘B’, it was the purchase agreement with the Deed Registry No. 1984/1960 that was nullified by the High Court. I have read the judgment and the deed of purchase and I am satisfied that it was the purchase deed that was nullified”.

 

What is the difference between the Purchase Agreement and the Deed of Gift? The purchase agreement concerned an area of 33.58 acres situate and lying at Nungua and bounded on the North-East by Nungua Stool measuring 1,200 feet on the North- East by Nungua Stool Land measuring 1,200 feet on the South-East by Nungua Stool land measuring 1,200 feet. Exhibit ‘D’, the Deed of Gift on the other hand covers 160 acres that is about five times the area alienated in the deed of purchase. The boundary owners of the Deed of Gift, land size, the scale used to draw the plan, the measurements and the grid lines are different from the Deed of Purchase.

 

From the above evidence adduced the exhibits tendered, I am satisfied that the Deed of Gift is different from the Deed of Purchase when it was nullified by the High Court. I further make a finding of fact that the nullification of the Deed of Purchase does not have any effect on the Deed of Gift. The judgment of the Deed of Purchase cannot operate as an estoppel per rem judicatam on the Deed of Gift.

 

In the case of Poku v Frimpong [1972] GLR 230, it was held that a judgment would operate as an estoppel when it involved the same parties and the same subject matter. The parties as used include the privies, assigns and successors in title of the litigating parties. The subject matter in the two transactions are different and the decisions in the Deed of Purchase cannot operate as an estoppel in the Deed of Gift and I so hold.’’(see Pages 431 & 432 of the record of appeal).

 

It is against the said judgment dated 5th November, 2015 that the Defendants have appealed on the following grounds:

 

The trial judge erred when he held that the estoppel does not apply to the Deed of Gift because Justice Ollennu’s judgment in Land Suit No 151/1960 set aside the conveyance or Deed dated either September 14, 1958 or September 14, 1959 when the issue of who were the accredited elders of the Nungua Stool was decided in the said judgment dated 27th July, 1962, suit No 151/1960 and the attesting witnesses to the Deed of Gift and the conveyance dated either September 14, 1958 or September 14, 1959 were held not to be the accredited elders of Nungua Stool for purposes of alienating the Stool Land.

 

The trial judge erred when he held that the Deed of Gift was valid when from Justice Ollennu’s judgment in suit No. 151/1960 the witnesses who attested to the due execution of the Deed of Gift were held not to be the accredited elders of the Nungua Stool.

 

The judgment is against the weight of evidence.

 

The trial judge erred when he held that 2nd, 3rd and 4th Defendants were not Purchasers for value without notice.

 

The trial judge erred when he held that 1st Defendant failed to prove that the Deed of Gift was a forgery.

 

Grounds A and B will be argued together and then grounds C, D and E in that order.

The trial judge erred when he held that the estoppel does not apply to the Deed of Gift because Justice Ollennu’s judgment in Land Suit No 151/1960 set aside the conveyance or Deed dated either September 14, 1958 or September 14, 1959 when the issue of who were the accredited elders of the Nungua Stool was decided in the said judgment dated 27th July, 1962, suit No 151/1960 and the attesting witnesses to the Deed of Gift and the conveyance dated either September 14, 1958 or September 14, 1959 were held not to be the accredited elders of Nungua Stool for purposes of alienating the Stool Land.

 

The trial judge erred when he held that the Deed of Gift was valid when from Justice Ollennu’s judgment in suit No. 151/1960 the witnesses who attested to the due execution of the Deed of Gift were held not to be the accredited elders of the Nungua Stool.

 

On the issues raised in grounds A and B regarding the judgment of the trial judge that the deed of purchase could not operate as an estoppel per rem judicatam on the Deed of Gift shall be considered.

 

The law on estoppel

In the case of Re Kwabeng Stool; Karikari and another v Ababioll and Others [2001-2002]

SCGLR 515 at 530. Ampiah JSC discussed in extensor estoppel rem judicatam thus:

 

“the doctrine or principle of estoppel is founded on the maxim interest republicaeut sit finis litium meaning ‘it concerns the state that lawsuits be not protracted’. Also ‘no man ought to be twice vexed, if it be found to the court that it be for one and the same cause’(nemo debet bis vexari,si constant veriae quod sit pro una et endemcausa). If an action is brought and the merits of the question are determined between the parties and a final judgment is obtained by either, the parties are precluded and cannot canvass the same question again in another action, although, perhaps, some objection or argument might have been urged upon the first trial which would have led to a different judgment…Estoppel of all kinds, however, are subject to one general rule: They cannot override the laws of the land. Thus, where a particular formality is required by statute, no estoppel will cure the defect and jurisdiction cannot be given to the court by estoppel, where statute denies it. In order that estoppel by record may arise out of a judgment, the court which pronounced the judgment must have had jurisdiction to do so... the lack of jurisdiction deprives the judgment of any effect, whether estoppel or otherwise…”

 

In Re Sekyedumase Stool; Nyame v Kese alias Konto [1998-99] SCGLR 476 at 478, Acquah JSC stated as follows:

… the plea of res judicata is never a technical plea. It is part of our received law by which a final judgment rendered by a judicial tribunal of competent jurisdiction on the merits is conclusive as to the rights of the parties and their privies and as to them, constitutes an absolute bar to a subsequent action involving the same claim, demand or cause of action”

 

The trial judge stated in his judgment that the judgment of Ollenu J. in suit No. 2078/1960 affected the Purchase Deed No. 1984/1960 but that the Deed of Gift of No. 2078/1960 was not affected by that judgment. The learned trial judge therefore concluded that Ollenu J’s judgment does not operate as estoppel per rem judicatam against the Deed of Gift No. 2078/1960.

 

Learned counsel for the Appellant cited the above case among others in support of this ground.

 

He also cited in addition the case of Dahabieh v SA Turqui & Bros [2001-2002] SC GLR 498 when the

Supreme Court restated the position that:

“It is well-settled under the rule of estoppel, that if a Court of competent Jurisdiction has tried and disposed of a case, the parties themselves and their privies cannot bring an action on the same claim or issue. The rule covers matters actually dealt with in the previous litigation as well as those matters which properly belonged to that litigation and could have been brought up to determination but were not raised.”

 

In the case of Nketia VI v Quayson alias Busumakura III [2011] SCGLR 842, it was held unanimously dismissing the appeal by the Petitioner from the decision of the National House of Chiefs that:

 

There was no doubt that there was identity of cause of action in the judgment of the Judicial

 

Committee of the Ahanta Traditional Council of 13th August, 1963 and the present action involving the parties. The Petitioner by his cause of action in the present action sought to substantiate his right to the Stool which was not different from that which was contested in 1963.

 

The evidence adduced in the instant action before the Judicial Committee of the Ahanta Traditional Council that resulted in its judgment delivered on October 1, 2004 was a subsisting decision involving the same parties and/or their privies in respect of the same cause of action.

 

That common cause of action as between the two contending parties was which of them was entitled to succeed to the Akona Stool. The right of the parties to the said stool had been concluded by the earlier judgment of 1963. Since it was subsisting and no evidence was led to preclude the application of the doctrine of estoppel by judgment to it, the parties in the instant application were estopped from seeking to re-open the issue that had been decided by the 1963 judgment as it related to the same issue in the present action.

 

Accordingly, the petitioner could not competently take out an action that had the effect of re-opening the same issue that had been finally and conclusively determined between his privies and that of the Respondent. In Re: Mensah (Deceased) Mensah and Sey v Intercontinental Bank (Gh.) Ltd. [2010] SCGLR 118 per Adinyira JSC at 125 cited.

 

Additionally the case of The Trust Bank Ltd. v G.K Appiah and Sons Ltd. and others [2011] 2 SCGLR 894 is apposite here.

 

It was held inter alia per Wood CJ.

 

Holding 5: The plea of res judicata was commendably and properly decided by both the trial High Court and the Court of Appeal. The judgment obtained in suit No. AB1/2003 subsisted as being conclusive of the rights of the parties and their privies in the instant appeal and a complete bar to the issuance of subsequent actions involving the same claims, demand or cause of action. Nyame v Kese alias Konto [1998-99] SCGLR at 478 cited.

 

The learned authors Spencer-Bower and Turner in their book Res judicata (2nd Edition) at page 9, paragraph 9 stated that:

 

“Where a final decision has been pronounced by … a judicial tribunal of competent jurisdiction over the parties to, and the subject-matter of the litigation, any party or privy to such litigation, as against any other party or privy thereto…is estopped in any subsequent litigation on the merits whether it be used as the foundation of an action or relied upon as a bar to any claim”.

 

The learned author Maxwell Opoku Agyeman in his book Law of Evidence in Ghana (2nd Edition) at page 235 -236 discussing the types of estoppel res judicata stipulates as follows:

 

“Estoppel per rem judicatam is of two kinds, namely, cause of action estoppel and legal issue estoppel. In cause of action estoppel, once it appears that the same cause of action was held to lie or not lie in a final judgment between the same parties or privies, litigating in the same capacity, there is an end of the matter. As stated by Lord Denning MR in Fidelitas Shipping Co. Ltd. v V/O Exportchleb [1966] 1 QB 630 at 640 “if one party brings an action against another for a particular cause and judgment is given on it, there is a strict rule of law that he cannot bring another action against the same party for the same cause”. It must be emphasized that this estoppel applies only to litigation arising out of the same facts. Therefore, if the facts change, then a judgment arising out of the earlier facts raise no estoppel”.

 

The author discussing at page 237 of the second type of estoppel judicatam that is legal issue estoppel said “the second kind of res judicata is legal issue estoppel. As explained by Lord Denning MR within one cause of action, there may be several issues raised which are necessary for the determination of the whole case. The rule then is that, once an issue has been raised and distinctly determined between the parties, then as a general rule, neither party can be allowed to fight that issue again.”

 

Issue estoppel is restricted to issues actually determined in the former litigation and does not extend to issues which the litigant should have raised but failed to, either through negligence, inadvertence or even accident. The reason is that, there may be many reasons why a litigant may decide not to raise a particular issue in a particular case, and it would be unjust to prevent him from raising it in a later proceeding.

 

Applying the above principles to the instant case, the Appellant avers per his Counsel in his written submission that the trial judge erred when he held that estoppel does not apply to the deed of gift because Justice Ollenu’s Judgment in the land suit No. 151/1960 set aside the conveyance or deed dated either September 14, 1958 or September 14,1959 when the issue of who were the accredited

 

elders of the Nungua Stool was decided in the Judgment dated 27th July,1962 Suit No.151/1960 where the attesting witnesses were held not to be the accredited elders of Nungua Stool for the purposes of alienating the stool land.

 

Counsel for the Respondent in his written submissions at paragraph 109 avers that: “…it is also true that the issues involved in both suits to some extent were the same, that is, who are the proper persons to make a valid grant of Nungua stool Land.”

 

At paragraph 110 of their written submission counsel further states that, “what is not true, however, is that the parties in this suit and the said suit No.151/1960 are different. In the instant case of the said suit No. 151/60 the parties were the elders of Nungua (not the stool itself) whose consent and concurrence were customarily required before a valid grant of Nungua Stool Land could be made and the then Nungua Mantse, Nii Odai Ayiku IV. In this suit the parties are the grantees and assigns of the Nungua stool and the siblings of the said Nii Odai Ayiku IV not the elders of Nungua whose consent and concurrence were required before a valid grant of Nungua Stool Land could be made aforesaid.”

 

The learned Judge at pages 431 & 432 of the record of appeal clearly distinguished between the purchase deed and the deed of gift by stating that: “from the content of the judgment, Exhibit ‘B’, it was the purchase agreement with the Deed Registry No. 1984/1960 that was nullified by the High Court. I have read the judgment and the deed of purchase and I am satisfied that it was the purchase deed that was nullified.

 

What is the difference between the purchase agreement and the deed of Gift? The purchase agreement concerned an area of 33.58 acres situate and lying at Nungua and bounded on the North-East by Nungua stool measuring 1,200 feet on the North-East by Nungua Stool Land measuring 1,200 feet on the South-East by Nungua stool land measuring 1,200 feet.

 

Exhibit ‘D’, the Deed of Gift on the other hand covers 160 acres that is about five times the area alienated in the deed of purchase. The boundary owners of the deed of gift, land size, the scale used to draw the plan, the measurements and the grid lines are different from the Deed of Purchase.

 

From the above evidence adduced the exhibits tendered, I am satisfied that the Deed of Gift is different from the Deed of Purchase when it was nullified by the High Court. I further make a finding of fact that the nullification of the Deed of Purchase does not have any effect on the Deed of Gift. The judgment of the deed of purchase cannot operate as an estoppel per rem judicatam on the Deed of Gift…”

 

I entirely agree with the position held by the learned judge. For estoppel to operate it need to be in respect of the same subject matter. The record of appeal and the exhibits as well as the evidence adduced indicate that the lands as described are two separate and distinct lands. As indicated on the composite plan CW1, dated 29-10-2013 the parcels of land covering the Deed of Purchase and the Deed of Gift are separate and distinct, the land as adjudicated on by Justice Ollenu is different from that as being claimed by the Respondent. The 1st Defendant’s land as shown on the said composite plan is embedded within the Plaintiff’s land.

 

The law is settled that it is critical for one seeking declaration of title to land to clearly identify and describe same. See G. T. Ecological Farms v Gama of Terporsi [2016] 103 G.M.J 69 C.A

 

The argument of counsel for the Respondent is that a number of years have lapsed since the gift was made. Additionally he submitted that since there has been an unchallenged evidence of settlement and possession as members of the said Nungua Stool, this made them usufructory owners of the land in dispute. That argument is quite persuasive. The cases of Hlordge v George [2005-2006] SCGLR974, Ago Sai and ors v Kpobi Tetteh Tsuru III [2010] SCGLR 763 are applicable here.

 

From the record of appeal there is unchallenged evidence of settlement and possession on the disputed land by the Respondents as usufructory owners. Sections 48(1) and (2) of the Evidence Act 1975 NRCD323, raises a presumption of ownership. The Respondents have demonstrated acts of ownership and possession and therefore there is a presumption of ownership in favour of the Respondent until it is rebutted .

 

Additionally, several years after the said Deed of Gift was granted have lapsed without any action against same by the elders whose consent and concurrence could validate same. For the foregoing reasons grounds (A) and (B) are dismissed.

 

On Ground C

Regarding the judgment being against the weight of evidence, It is trite that where a party is of the view that the judgment is against the weight of evidence, there is a burden imposed upon him to substantiate the allegation. In Tonado Enterprise & ors v Chou Sen Lin [2007-2008] SCGLR 135 the court stated “when a party in ground of appeal states that the judgment is against the weight of evidence he imposes upon himself the onus of satisfying the appellate court that the evidence led in the trial was not such as to warrant the findings made on it”.

 

In the instant case the Appellant’s are to adduce sufficient evidence to discharge the burden placed on them. In Tuakwa v Bosom [2001-2002] SCGLR 61 where the court speaking through Sophia Akuffo (JSC) held thus: “an appeal is by way of rehearing particularly where the Appellants alleges on his notice of appeal that the decision of the trail court is against the weight of evidence In such a case, it is incumbent upon the appellate court in a civil case to analyse the entire record of appeal, take into account the testimonies and all documentary evidence adduced at the trial before arriving at its decision so as to satisfy itself that on a balance of probabilities, the conclusion of the trial judge are reasonably or amply supported by the evidence.

 

However it must be noted that a Plaintiff whose sole ground of appeal is that the judgment is against the weight of evidence on record should not be permitted to argue points of law, challenge to jurisdiction or capacity.”

 

In the instant case the Appellant did not only appeal on the omnibus ground but also on other grounds as well which implies that they can argue on point of law, capacity and on jurisdiction. As stated in the case of Brown v Quarshigah [2003-2004] SCGLR 930 @ page 941 and 942, the court held that, this means that the jurisdiction of the appellate court is available but the rules of practice in our courts is that the Plaintiff must invoke it by filing appropriate grounds of appeal, distinguishing the so called omnibus ground from misdirection or errors of law, challenge to jurisdiction or capacity...in my view, a party who only gives notice that he intends to rely on the so called omnibus ground should not be permitted to argue points of law.

 

The Appellants relied on the date of execution of Exhibit A, the Deed of Gift, which in their view, was done in 1959 and not 1958. The Appellants also contend that the evidence on record also did not support the trial judge’s finding that the Nungua Stool divested itself of its interest in the land by virtue of the said deed of gift when the same was made in 1959 without the consent of the elders resulting in Suit No 151/1960.

 

From the record, the Respondent in his evidence to the court stated that, he was aware of the judgment of Ollenu J. (as he then was) in the case of BorketeOsonoware and 23 ors v Nii Odai Ayiku and anor, but denied that it affected the land in dispute. In his view, the judgment affected a parcel of land lying close to the Regional Maritime University called Antwere Gonno and measuring 33.58 acres. The Respondent estimated the distance between the land in dispute at Baatsona and the land affected by the Ollenu J’s judgment to be about 10km.

 

The Respondent refuted claims that the Deed of Gift made by the Nungua Stool was unknown to the Land’s Commission, by producing a search report by Koiwah Investment that showed that the deed was in fact recorded at the Lands Commission.

 

It was the Respondent’s case that unlike the land in Exhibit ‘B’ which was granted on the basis of a loan of £1,404.20 taken from the said Daniel Tawiah Quaye, the land referred to in Exhibit ‘A’ was granted to his family as Deed of Gift without the payment of valuable consideration. (see page 7and 8 of Exhibit ‘B’).

 

The Respondent was emphatic that the land in dispute lies at Baatsona even though the Site Plan in Exhibit ‘A’ does not say so. It is simply stated as Nungua. He gave the names of the elders who granted the land covered by Exhibit ‘A’ and denied that the witnesses to the said Exhibit ‘A’ had no authority to sign the said Exhibit. From the record of appeal, the Respondent testified that as far as the alienation of Nungua Stool Land was concerned it was the Mantse acting with some elders who can make a grant. He denied that the Gborbu Wulomo was a grantor of Nungua Stool Land. To the suggestion that the people whose signature and names are valid for the grant of Nungua Stool Lands did not consent to the grant in Exhibit ‘A’, the Respondent responded that they consented.

 

One notes with interest that other witnesses corroborated the Appellant’s evidence that the land in dispute lay at Baatsona. These were PW1, DW2, 2nd Defendant and the 4th Defendant. The cases of Odametey v Clocuh [1989-90] GLR 14 and Manu v Nsiah [2005-2006]SCGLR are applicable here; These cases illustrate the situation where a party’s own witness corroborates the evidence of the other party on the same issue, the court should accept the corroborated evidence unless for some good and apparent reason, the court finds that the corroborated version is incredible or unacceptable.

 

The Respondent disagreed with the suggestion that the land in dispute was granted to the 1st Defendant by the Nungua Stool. In his words, “the Stool cannot grant the same land to two sets of people or two entities”. The principle in Nemo dat quod habet applies against the Stool.

 

He testified that his family had caretakers on the land in dispute where they have been for more than fifty years and are still there.

 

For instance the land Surveyor with the Survey and Mapping Division of the Lands Commission, testified at page 339-340 of the record of appeal that the area in dispute is situate at Baatsona, while the land as shown by the site plan in Ollenu’s judgment was situate at the Maritime Academy. He stated that the distance between the two parcels of land was about two miles.

 

One could only come to the conclusion after perusing the entire record that the learned trial judge considered all the available evidence before arriving at his decision. Therefore this ground also fails.

 

On Ground D of the appeal, the Appellant avers that 2nd, 3rd and 4thDefendants acquired their lands from the 1st Defendant after satisfying themselves from enquiries made that the land belonged to the 1st Defendant. As rightly found by the trial judge in his judgment, at the time all the grants were made to the Appellants, the Respondent had already registered his title (Exhibit ‘A’). Since registration of land gives actual and constructive notice to all prospective buyers of the said land anybody who purports to buy such a land acquires nothing because he is not a bona fide purchaser for value without notice. Section 25 of Act 122 provides that: “the registration of any instrument shall be deemed to constitute actual notice of the instrument and of the fact of registration to all persons and for all purposes, as from the date of registration, unless otherwise provided in any enactment…’

 

The search results particularly that of the 1st Defendant/Appellant found on page 488 of the record of appeal, also on page 492 indicated that the grant to the Respondent and his family was part of one of the transactions that had affected the said land at the time, therefore none of the Appellants can claim not to be aware of the Respondent’s title.

 

On Ground E, the 1stDefendant/Appellant pleaded fraud and forgery against the Plaintiff. In Osei-Ansong & Plsvrsv Ghana Airports Co. Ltd. [2013-2014] 1SCGLR 25 at holding 2stipulates that: “… that fraud is not fraud merely because it has been so stated in a writ to excite the feelings of the court…’’

 

On the face of the record it appears that the burden of proof lies on the Appellants who alleged fraud (Section 14 & 15 of the Evidence Act, 1975 (NRCD 323).

 

14 – Allocation of burden of persuasion

 

“Except as otherwise provided by law, unless it is shifted a party has the burden of persuasion as to each fact the existence or non-existence of which is essential to the claim or defence that party is asserting.”

 

15 – Burden of persuasion in particular cases

 

“Unless it is shifted,

(a) The party claiming that a person has committed a crime or wrongdoing has the burden of persuasion on that issue;

 

The burden of proof on this issue lies with the Appellant who alleged fraud. However I found no such evidence adduced on the record to demonstrate that those alterations were made by the Respondent himself or by any other member of his family.

 

On pages 242-246 of the record of appeal, we find the evidence of the officer from the National Archives otherwise known as (PRAAD). He testified that he had sighted the Lands Concession Bulletin that triggered Exhibit ‘A’ at the Deeds Registry. This was tendered as Exhibit ‘F’. This Exhibit ‘F’ clearly indicates that the Deed of Gift over the land situate at Nungua was made on 14th November, 1958. The grantor was named as Nii Odai Ayiku IV of Nungua and the Grantee was Quaye Tawia of Nungua. This evidence remained unshaken and confirms the Respondent’s claim. It also negates the charge of fraud which was not proved by the Appellants. That ground accordingly fails.

 

In conclusion, for all the foregoing reasons, the appeal fails in its entirety. The judgement of the High Court dated 5th November, 2015 is accordingly affirmed.

Cost of Five Thousand Ghana cedis (GH¢5,000.00) in favour of the Plaintiff/Respondent. Dzamefe, JA,

 

Upon a second look and a more thorough reading of the judgment by my learned sister Margaret Welbourne (Mrs.) (JA), I have agreed to the reasoning of the judgment.

 

I have therefore abandoned my decision to write a dissenting judgment. I now totally agree with the majority decision.