ACCRA - A.D 2019

DATE:  17 TH JANUARY, 2019
SUIT NO:  E1 /49/2013

The Plaintiff commenced this action on 7th March 2013 seeking the following reliefs on the endorsement on his writ of summons:

A Declaration of title to all that piece or parcel of land situate, lying and being at Dodowa in Dangme West District of the Greater Accra Region, containing an approximate area of 1.44 Acres or 0.58 hectare more or less and bounded by the North East by Daniel Tetteh Zorh’s land measuring 153.0 feet more or less on the South West by Accra-Somanya Road, measuring 146.6 feet more or less and on the North-West by Okunko, Tetteh Opersah and Odumaney’s land measuring 431.5 feet more or less which piece or parcel of land is more particularly delineated on a site plan.

Recovery of possession of the aforesaid land.

Perpetual injunction to restrain the first Defendant, his servants, workers, agents, privies or any of them however called from trespassing on his land, the subject matter of this suit.

An order directed at the second Defendant to cease the processing and issue of a land title certificate to the first Defendant.

Damages for trespass.

Costs inclusive solicitor’s fees and cost of litigation.

Any other order (s) as this honourable court may deem fit.


On 11th April 2013, the second Defendant entered an appearance, while the first Defendant followed up with his on 23rd April, 2013. The latter proceeded to file a defence on 2nd July 2013. The Plaintiff filed a reply to the defence of the first Defendant.


The Plaintiff raised the following issues in his application for direction:

Whether or not the Plaintiff is an Accountant?

Whether or not the Plaintiff obtained an indenture to the land in dispute?

Whether or not the Plaintiff conducted a search on the land in dispute prior to its acquisition?

Whether or not there had been a previous litigation before any Court on this same subject matter?

Whether or not the second Defendant has responded to the concerns raised by the Plaintiff prior to this suit?

Whether or not the Plaintiff is entitled to his claims.

The first Defendant also filed the additional issues beneath:

Whether or not Plaintiff acquired any interest in the land in dispute from his grantor?

Whether or not the Plaintiff’s claim is statute barred?

Any other relevant issues arising from the pleadings?


The Court adopted all the issues above on 14th January 2015 as the issues for determination in the matter. After the applications for directions, the parties were directed to file their witness statements. The Plaintiff and the first Defendant testified on the basis of witness statements. It appears from the record that the second Defendant is a no horse in this race so it did not file any defence after entering an appearance. The Court ordered a composite plan to be drawn up and when it was done, the surveyor appeared in Court on 6th February 2018 to be cross-examined. The Plaintiff testified and called three witnesses. The first Defendant testified and called no witness.


The Case of the Plaintiff

The Plaintiff is an Accountant resident in Accra. The first Defendant is a resident of Dodowa, while the second Defendant is the Registrar of the Lands Commission in Accra. The case of the Plaintiff was that he and his wife by name Anne Stella Wemakor jointly acquired a parcel of land in 2009 from one Daniel Tetteh Zorh of Dodowa. Their grantor executed a lease of 99 years of land of an approximate area of 1.44 Acres or 0.58 hectares for them on 4th September 2009, which was tendered in evidence as Exhibit ‘A’. The Plaintiff constructed pillars around it. He then gave his grantor permission to find someone to cultivate crops on the land for the purpose of securing it.


Prior to the acquisition of the land, the Plaintiff conducted a search which duly confirmed his grantor’s title with no encumbrance whatsoever. His grantor used to cultivate sugar cane before the grant, but after the Plaintiff’s acquisition, he periodically arranged for the land to be cleared in order to show his presence and to ward off potential encroachers. In one of such clearing around September 2009 after the Plaintiff had acquired the land, the first Defendant threatened the labourers of the Plaintiff with a gun. He further removed the boundary pillars and claimed ownership of the land in disputed. A complaint was lodged with the police against the first Defendant for his misconduct and he was warned accordingly. Nonetheless, the first Defendant continued to threaten the workers of the Plaintiff anytime they stepped on the land.


In September 2011, while the Plaintiff was processing his land documents at the Land Title Registry, he discovered that the first Defendant had requested for a survey and preparation of a parcel plan in respect of approximately half of the Plaintiff’s land. The Plaintiff learnt that somewhere in 2001, the first Defendant sued the Plaintiff’s grantor and one other for various reliefs including a declaration of title and recovery of possession in respect of the land at the Dodowa Community Tribunal, but he discontinued the action on the ground of lack of jurisdiction.


The Plaintiff denied that the first Defendant has any interest in the land. He relied on the judgment of Her Worship Mrs. Helen Addo sitting at the Dodowa District Court in the matter of Odikro Ajanor Osudoku on Thursday 11th May 2014 as a confirmation that the first Defendant has no interest in the land (See Exhibit ‘B’). When the processing of the Plaintiff’s registration stalled as a result of the dispute, the parties were referred to the Regional Head of the Lands Registration Division of the Lands Commission (See the referral letter dated 9th February 2012 marked Exhibit ‘C’). The Plaintiff expressed his disappointment that the Regional Head failed, refused and/or neglected to act. What even surprised him was the fact that a letter written by his lawyer was also ignored. It is based on the above facts that the Plaintiff commenced the present action.


Daniel Awatey Zorh (PW1) testified as the son of the Plaintiff’s grantor. It is worth noting that the

Plaintiff’s grantor by name Daniel Tetteh Zorh filed a witness statement on 3rd October 2017, but passed on before hearing commenced in the matter. Therefore, his son who claimed to have personal knowledge of the land testified and attached the witness statement of his father as an exception to the hearsay rule. (See section 116 (e) (iii) of The Evidence Act, 1975 (NRCD 323).


According to PW1, the land in question was a gift from his grandmother, the late Mary Afiyo Zorh to his deceased father. He described the boundaries of the land. PW1 told the Court that he used to accompany his grandmother to the land when he was young. He stated that the First Defendant had unsuccessfully litigated over the land with several people. He also testified that he helped his father to erect pillars along the boundaries to fence the land. He told the Court that his father gave out the land to Mr. Kwashie Agbedanu to farm on it from 1989 to 2005.

Narh Okonkwo (PW2) testified as the lawful representative and caretaker of the Okonkwo Family whose land shares boundary with others including the Plaintiff and sought to say that he used to occupy their family land until the first Defendant took over. He told the Court that the land in dispute belongs to the Plaintiff and his wife but not the first Defendant.

Kwashie Agbadanu (PW3) testified as the caretaker of the Plaintiff’s grantor for over 20 years. While on the land, he got to know that the land shares boundary with the Okwonkwo family, whose lawful representative is PW2.


The Case of the Defendant

The first Defendant is a farmer living at Dodowa. It is his case that he and his family live on a large tract of land acquired by his grandfather by name Okunko Tetteh. He claims that his family has been occupying the land by way of farming, building and granting portions of it for over fifty years. The first Defendant tendered photographs of their possession to back his claim. Around 1997-1998, when the road from Accra to Dodowa was being constructed and crops of their family land were destroyed, the first Defendant’s father demanded and received compensation from the Ghana Highway Authority. Exhibits 2 series were tendered in evidence by the first Defendant to prove the assertion.


According to the first Defendant, there was an occasion when a portion of their family land was litigated at the Dodowa Court. Daniel Zorh, who is the alleged grantor of the Plaintiff was in Court to testify against the first Defendant, but the matter ended in his favour. The Court’s proceedings and Judgment were tendered in evidence as Exhibits 3 and 3 ‘A’ respectively. The first Defendant contended that his land was surveyed by a licensed surveyor in consultation with adjoining land owners at the instance of the Dodowa District Court (See Exhibit 4).


Finally, the first Defendant denied the Plaintiff’s claim and maintained that he has been in possession of the land and has resisted attempts by people to take over the land.


Whether or not the Plaintiff is an Accountant?

It is unfortunate that the above was made an issue in this case. The profession of the Plaintiff would not in any way help to resolve the matter on hand. Courts are advised to concentrate on addressing relevant issues only, notwithstanding the fact that they might have been set down for trial at the direction stage. This was the decision of the Supreme Court, per Wood C.J. (As she then was) in the case of Fatal v. Wolley [2013-2014] 2 SCGLR 1070. Her Ladyship held thus: “It is sound learning that courts are not tied down to only issues identified and agreed upon by the parties at pre-trial. Thus, if in the course of the hearing, an agreed issue is clearly found to be irrelevant, moot or even not germane to the action under trial, there is no duty cast on the court to receive evidence and adjudicate on it. The converse is equally true. If a crucial issue is left out, but emanates at trial from either the pleadings or the evidence, the court cannot refuse to address it on ground that it is not included in the agreed issues.”


Similarly, in the case of Mrs. Vicentia Mensah & Another v. Numo Adjei Kwanko II (2017) DLSC 2601, Yeboah JSC reiterated the same point when he held: “It must, however, be made clear that a court of law is not bound to consider every conceivable issue arising from the pleadings and the evidence if in its opinion few of the issues could legally dispose of the case in accordance with the law”. See also the cases of William

Ashitey Armah v. Hydrafoam Estate (Gh.) Ltd. [2014] DLSC 3000 & In Re Asamoah (Dec’d) Agyeiwaa & Ors. v. Manu [2013-204] 2 SCGLR 906 at holding 4, per Akamba JSC.

I believe the Plaintiff’s counsel who raised it as one of the issues to be determined by the Court later realized that the present issue would add nothing to ‘the soup’, so he omitted it in the discussion of the issues in his written address filed in this Court on 20th December 2018.


Whether or not the Plaintiff obtained an indenture to the land in dispute?

It is the case of the Plaintiff that the late Daniel Tetteh Zorh executed a lease of 99 years covering the land for him on 4th September 2009. The Plaintiff tendered the said lease in proof of his title. In the Defendant’s Statement of Defendant, he claimed the land in dispute forms part of his family land. He fundamentally denied the interest and title of the Plaintiff’s grantor in the land and unequivocally averred at paragraph 14 that “… [I] f Daniel Zorh has sold 1st Defendant’s family land to the Plaintiff then Daniel Zorh sold him nothing since he is not the owner of 1st Defendant’s family lands that is to wit, nemo dat quod non habet”.

The above pleadings undoubtedly challenged the validity of the title of the Plaintiff’s grantor, Daniel Tetteh Zorh to alienate the land to the Plaintiff. Therefore, the issue is not about whether the said Daniel Tetteh Zorh executed an indenture for the Plaintiff or not. It is about whether he had title to lawfully alienate same. Since the title of the Plaintiff’s grantor was challenged, the Plaintiff had a duty to prove that his grantor had title to the land the subject matter of this suit before he could grant same. He therefore needed the help of his grantor to be able to leap above this hurdle.


The Supreme Court in the case of Salomey Shorme Tetteh & Nii Amon Tafo v. Mary Korkor Hayford Substituted By Stella Larbi & Comfort Decker (infra) decided: “There is an obligation on a grantor, lessor or owner of land to ensure that any grant he purports to convey to any grantee, or lessee is guaranteed and that he will stand by to defend the interest so conveyed to any grantee or lessee …”. The Plaintiff and his grantor accepted the challenge thrown to them by the first Defendant and set forth to establish it by tendering various documents including the indenture of his grantor and the 99-year lease executed for him by his grantor.

After carefully examining the evidence of the Plaintiff and his witnesses together with the documen tendered, it appears that the Plaintiff does not have what it takes to launch an attack and unlock t ‘formidable defence’ of the first Defendant.


The vagueness in the title of the Plaintiff’s Grantor

There was an ambiguity as to the nature of the Plaintiff’s grantor’s title. He was not sure whether the land he acquired was granted by his grantor as his personal bona fide land or it was a family land which Daniel Tetteh Zorh acted in a representative capacity to grant. In the Statement of Claim, he pleaded that the land belonged to Daniel Tetteh Zorh. In his witness statement, he tendered an indenture executed for him by his grantor.

The said lease suggested that the land was a family land of which the Plaintiff acted as the lawful representative of the family with the consent and concurrence of the principal elders of the family. As a family land, it was expected that the principal elders of the family would have been in support of the alienation and this support could have been gleaned from their role as witnesses to the signature of Daniel Tetteh Zorh when he executed the lease for the Plaintiff. Surprisingly, that turned out not to be so. It came out during the trial that the two witnesses by names Daniel Awatey Zorh and Grace Amevor were the son and wife of the said Daniel Tetteh Zorh respectively, who customarily did not belong to the family of Daniel Tetteh Zorh , thereby making the lease looks suspicious. Ann Landers, the American journalist advises, “Don’t accept your dog’s admiration as a conclusive evidence that you are wonderful”.


Instead of the Akokoanor-Chaida-Magdiem family of Daniel Tetteh Zorh confirming the grant, the evidence of PW1 at paragraph 3 of his witness statement suggested that it was the Shai Traditional Council that attested it (See Exhibit “F”). The Plaintiff confidently began answering questions posed to him in cross examination by maintaining that the land of his grantor was a family land. However, when the battle became tough for him, he made a U-turn to say that the land personally belonged to his grantor.


The indenture of the Plaintiff’s Grantor

The first Defendant was able to punch holes in the indenture of the Plaintiff’s grantor. Whereas, t indenture was executed in 1998, the attached site plan is dated in March 2002, when it is comm knowledge that the plan of a land that is being usually conveyed is prepared before the instrument is lat prepared and executed, but not otherwise.

On the absence of a date and the signature of the Survey Director’s on the indenture, counsel for t Plaintiff submitted that this was a mere omission. Unfortunately, they are legal requirements which cann be disregarded. Akamba JSC in the case of Nortey No. 2 v. African Institute of Journalism an Communication No 2 [2013-2014] 1 SCGLR 703 at 717; [2014] 77 G.M.J. 1 at page 10 decided: ““Exhibit ‘ which is a site plan … is not dated and also not signed by the Director of Survey or his representative. Indeed, th omission by the plaintiff is contrary to section 3 (1) of L.I. 1444, the Survey (Supervision and Approval of Plan Regulations, 1989 which makes it mandatory for plans of any parcel of land attached to any instrument for t registration of such instruments to be approved by the Director of Survey or any official surveyor authorized in th behalf. As a result of this stark infringement of the statutory requirement, exhibit ‘A’ is rendered of no probative val as rightly determined by the Court of Appeal. Notwithstanding that the exhibit ‘A’ was accepted in evidence witho objection, it could not constitute evidence for the purpose for which it was tendered since it infringed the instrumen This is so because the courts have a duty to ensure compliance with statutes including subsidiary legislations like L 1444


Counsel for the Plaintiff opined that once the Lands Commission accepted the documents for processing, that should settle the matter. Let me say that where the Lands Commission is negligent and failed to ensure compliance of the law, the Court has a duty to do so. In the recent case of General Emmanuel A. Erskine & Another v. Victoria Okpoti & Another [2018] DLSC 189, the Supreme Court rejected a document that was negligently accepted by the Lands Commission when it was not conformable to the law.


The Plaintiff had the unflinching support of three witnesses in all to ‘silence’ the first Defendant once an for all. The three witnesses appeared fairly represented and strategically chosen. While the Plaintif grantor solidly stood at the rear to guarantee the safety of the Plaintiff’s title, the caretaker who h cultivated the land for many years was in the middle to maintain stability in the team. A member of t Defendant’s own family who described himself as the representative and caretaker of the Defendan family lands was picked to do the attack for the Plaintiff. He told the Court that the land in dispute whi the first Defendant claims to be their family property does not actually belong to them but it is for t Plaintiff.


This strong team of four, captained by the Plaintiff launched the attack against the first Defendant w appeared on the ‘field’ without any witness to complement his effort. The Algerian proverb, “One ha cannot applaud” might have made the first Defendant panicked, but an Indian actor, Hrithik Roshan say “When truth is on your side, you don’t need support “.


The first Defendant might have been cheered on by his counsel that in legal contest, witnesses are weight but not counted as the Courts have consistently decided. See the cases of Takoradi Floor Mills v. Sam

Faris (2005-06) SC GLR 882 at holdings 3 and page 896, Clipper Leasing Corporation v. Attorney Gener

Another [2016] DLSC 2862, per Pwamang JSC & Kofi Sarpong (Dec’d) (Substituted by) Nana Kwa Koduah v. Franklin Adubobi Jantuah [2016] DLSC 2877, per Benin JSC.

The witnesses of the Plaintiff played outside the rules of the game, as their evidences were wild an appeared unreliable. In fact, they did not help the cause of the Plaintiff as anticipated. Mark Twain wrot “Whenever you find yourself on the side of the majority then it is time to pause and reflect”. Being the cent referee in this dreaded match, I have to ensure that there is sanity in the game. I do so by showing the evidence the deserving ‘red card’.


Contradictions in the evidence of the Plaintiff’s witnesses

i.              PW1

PW1 appeared to be evasive. He gave answers that seemed to suit his cause and were miles away from the truth. As the most dependable and trusted ‘centre back’ of the Plaintiff’s team, he was expected to secure the rear and not to score goals the way he did. That is, he helplessly contradicted himself. When one compares his evidence at pages 15 and 21 of the Proceedings, the contradictions were so visible.


This is what ensued at page 15 of the Proceedings:

“Q: So as you sit here, you do not belong to your mother’s family?

A: Yes, my Lord.

Q: And your father did not belong to your mother’s family?

A: He belonged to his mothers’ family”.

However at page 21 of the Proceedings, he had this answer to give the Court:

“Q: Did you say your father belonged to his mother’s family?

A: No, my Lord. He belonged to his father’s family”.


PW1 had so soon forgotten about what he had earlier said. The Vietnamese say, “Lies have short legs”. As if one own goal was not enough, he added unto it in the second half. It may be recalled at this stage that PW1 was the one who appeared in Court to testify for the Plaintiff about the validity of his grantor’s title. Per Exhibit “E”, being the indenture prepared by his grandmother, Mary Afiyo Zorh, the land was granted to his late father, Daniel Tetteh Zorh on 10th February, 1998. However, PW1 told the Court by stating at paragraph 8 of his witness statement that his late father granted the land to PW3 to farm on it as the caretaker from 1989. The question is, if his father became the lawful grantee of the land in 1998, how could he have given it out to his caretaker in 1989? The evidence adduced by the Plaintiff’s first witness was short of any explanation that seemed to suggest that even before Mary Afiyo Zorh allegedly gifted the land to Daniel Tetteh Zorh, the latter had the authority to deal with the land on behalf of his mother.


ii.             PW2

PW2 appeared to have come to give evidence to settle an old score he had with the first Defendant. He did not mince words when he was asked under cross examination about his relationship with the first Defendant (See page 26 of the Proceedings). His evidence was doubtful and incongruous, to say the least. In fact, he had no personal knowledge of the subject matter land, but only came to the Court to do the bidding of the Plaintiff. That explains why he dabbled in an excessive exaggeration of the facts which ended up exposing his ignorance of the case. According to Josh Billings, “There are some people so addicted to exaggeration that they can’t tell the truth without lying”. At page 26 of the proceedings when he was subjected to cross examination by counsel for the first Defendant, he answered to a question posed to him thus:

“Q: It is not true that the first Defendant ever attacked any person with landguards and machomen on his grandfather’s land that he occupies?

A: It is true that he attacked the Plaintiff with gun and machomen”.


In the Plaintiff’s pleadings and witness statement, what he said was that the first Defendant attacked his workmen (See paragraphs 10 & 8 respectively). The Plaintiff did not say anywhere that he was personally attacked by the first Defendant as PW2 claimed. According to a Spanish proverb, “Truth like oil will always come to the surface”. When the Plaintiff was being cross examined at page 10 of the Proceedings, he answered:

“Q: Have you ever been confronted on the land by the first Defendant?

A: No, my Lord.

Q: Are you saying that you have never had any confrontation on the land with the first Defendant before?

A: My Lord, the first Defendant had a confrontation with my caretaker on the land.

Q: So you agree with me that your assertion that the first Defendant had never resisted you on the land is not true?

A: My Lord, he has not resisted me personally.

Q: Apart from your caretaker, you have stated that in September 2009, your labourers were threatened with gun by the first Defendant. This is contained under paragraph 8 of your witness statement. Is that not the case?

A: Yes, my Lord.

Q: I put it to you that the first Defendant lawfully prevented you, your labourers and your grantors from trespassing on his land in 2009 but never threatened you with gun or threatened you at all?

A: Yes, my Lord. He has never threatened me personally”.


From the horse’s own mouth, the first Defendant never threatened the Plaintiff, but PW2 had the guts to say under oath that the first Defendant threatened the Plaintiff with a gun. PW2 should have known that the Courts are not persuaded by plenty talk, but by credible talk; hence the Yorubas say, “Many words do not fill a basket”.


After PW2 had gone so far with his lies, he could no longer reconcile his own facts. He gave the boundary features of the Plaintiff’s land and there emerged an ambiguity. However, when counsel for the first Defendant asked him to clarify his own evidence about the inconsistencies in the description of the boundaries of the Plaintiff’s land at page 29 of the Proceedings, he was helpless and said ‘I cannot explain’. An Indian proverb advises, “Listen or thy tongue will keep thee deaf”.


After being exposed, like an apprehended thief, he confessed that he does not actually know the disputed land, but it was Teacher Zorh (the Plaintiff’s grantor) who told him. Wayne Dyer once said, “The highest form of ignorance is when you reject something you don’t know anything about”.

“Q: So what were you trying to mean when you stated that the land shares boundary with both Daniel Tetteh Zorh and Seth Kofi Nyamadi as in paragraph 2 of your witness statement?

A: I cannot explain.

Q: How big is Kofi Nyamadi’s land?

A: I cannot tell the size.

Q: Were you present when it was being demarcated to the Plaintiff?

A: No, my Lord.

Q: So how do you know the disputed portion belongs to the Plaintiff if you were not present?

A: I was told by Teacher Zorh.

Q: So your evidence in this Court that the area in dispute belongs to the Plaintiff is based solely on what you were told by Teacher Zorh?

A: That is so, my Lord”.


iii.            PW3

Whereas the Plaintiff consistently maintained that he acquired the land in September 2009, PW3 told the Court under oath that the Plaintiff acquired the land from Daniel Tetteh Zorh in 2001. He answered to questions posed to him at page 35 of the Proceedings as follows:

“Q: You claimed Daniel Tetteh Zorh sold portion of his land to the Plaintiff; when was that?

A: In 2001.

Q: So from 2001, Daniel Zorh lost the portion to the Plaintiff after the sale?

A: That is so, my Lord”.

Further, PW3 told the Court under oath at page 32 of the Proceedings that he never became a caretaker of the Plaintiff.?

“Q: Were you also a caretaker for Seth Nyamadi?

A:  No, my Lord. I have an explanation. I used to be a caretaker for Mr. Zorh but he sold part of his land to Mr. Nyamadi. As for Mr. Nyamadi, I have never been his caretaker? (My emphasis).

Q: When did you cease to become a caretaker of Mr. Daniel Tetteh Zorh?

A: From 2009.

Q: Since 2009, you do not go to the land and do not know what happens there?

A: That is so, my Lord”.


The very witness who claimed he ceased to become a caretaker of the land after the land had been sold in 2001, is now saying he left the land in 2009. Going by his earlier testimony that Daniel Tetteh Zorh allegedly sold the land to the Plaintiff in 2001 and he never became a caretaker for the Plaintiff, how could he have been on the land from 2001 to 2009?

Just like his other colleagues, when he was exposed under cross examination, he could no longer hide the truth. The French writer, Ander Maurois reminded us of characters like the Plaintiff’ witnesses when he once wrote, “There are certain persons for whom pure truth is a poison”. PW3 who had said he never became a caretaker of the Plaintiff and ceased to be a caretaker on the land when it was sold out to the Plaintiff in 2001 turned round to say otherwise at page 35 of the Proceedings.

“Q: You said you left the land in 2009 and you also said you were cultivating the portion sold to the Plaintiff, can you clarify?

A: My Lord, I was farming on the portion but the Plaintiff appointed me as his caretaker”.

On when he actually left the land, he had different years to give. Was it in 2001, when the land was sold to the Plaintiff as he claimed or 2009? He was unable to clarify. An unknown writer has said, “Better to stumble in your steps than stumble in your mouth”. As if the lie told by PW3 was not enough, he proceeded to give evidence suggesting that he did not even leave the land on either of the two years given but a different year altogether. This time, it was around 2005. See page 35 of the Proceedings where he stated that he left the land four (4) years after the Plaintiff had discontinued the suit he brought against them in 2001.


Moreover, the period he acted as caretaker for Daniel Tetteh Zorh was shrouded in doubt. At paragraph 1 of his witness statement, PW3 told the Court that he was a caretaker for Daniel Tetteh Zorh on the land for over twenty (20) years. His grantor also gave the date from 1989 to 2005 at paragraph 8 of PW1’s witness statement, which was less than 15 years. So between PW1 and PW3; who is speaking the truth?


The vagueness in the identity of the land

Apart from the myriads of unanswered questions surrounding the title of the Plaintiff’s grantor, there is also uncertainty in the land conveyed to the Plaintiff by his grantor. It is common knowledge that for a Plaintiff to succeed in title declaration claims, he has to satisfactorily describe the identity of his land. See the cases of Kpakpo Brown v. Bosomtwi and Co.Ltd. (2001-02) SCGLR 876; Amuzu v. Oklika (1998-99) SCGLR 141 & Aryeh and Akakpo v. Ayaa Iddrisu (2010) SCGLR 891.

The first Defendant denied encroaching on the Plaintiff’s land. The witnesses of the Plaintiff conceded that the first Defendant’s family has land at the area. It is this land that the first Defendant claimed to be occupying. There was thus an issue with the determination of boundaries, hence a composite plan was drawn up. The court’s expert’s (i.e. the Surveyor’s) report clearly showed that the land granted to the Plaintiff as described on the attached site plan was far at variance with the land he is claiming on the ground. Ironically, the first Defendant’s site plan is substantially conformable to his family land on the ground. Our elders say, “When your luck deserts you, even cold food burns”.


The Court’s expert had these answers to give when he appeared in Court to answer questions posed to him under cross examination at page 2 of the Proceedings.

Q: You agree with me that comparing the black and yellow marks, the Plaintiff could not accurately identify his land on the ground vis-à-vis his site plan?

A: The composite plan attests to the fact that there is a discrepancy between what the Plaintiff showed to the survey team on the ground and what his site plan is saying/ as to the issue of identification, at this point in time, it will be very difficult for me to say if he miss-identified his plot because at the time of preparing his site plan as indicated yellow, it was not there.

Q: So do you agree with me that what he showed on the ground and what is contained in his site plan is not the same.

A: That is correct.

Q: You will agree with me that the Defendant’s land he identified on the ground conforms almost to the one contained in his site plan.

A: That is so. It reasonably conforms”.


The Plaintiff could not adversely challenge the work done by the surveyor or the composite plan drawn, thereby amounting to an admission of the report. See the cases of Great Commission Church

International v. Acolatse & Anor. (2014) 75 GMJ 39 at page 45 &Ayiwa v. Badu (1963) 1 GLR 86.

There was ambiguity in the indenture which covered the land. Two lands were described in the schedule. None of them corresponded with the Plaintiff’s land. It was no wonder the surveyor could not use it for the superimposition exercise.

“Q: You did not use the site plan furnished you by the Plaintiff in the name of Daniel Tetteh Zorh?

A: That is correct. The reason being that the plan has on it only one grid value which is insufficient for it to be used for a superimposition exercise.

Q: So you cannot tell the Court as you sit here now whether the Plaintiff’s site plan falls within Daniel Tetteh Zorh’s site plan?

A: That is so”.


The evidence of the expert surveyor in this case cannot be glossed over. According to Niels Bohr, “An expert is a man who has made all the mistakes which can be made in a narrow field”. The law is that although the evidence of a Court expert is only of persuasive effect and not binding, there must be very good reasons by the Court to reject it. In the case of Tetteh v. Hayford (2012) 44 GMJ 11, Dotse JSC held at page 17 thus: "It is generally understood that a court is not bound by the evidence given by an expert such as the surveyor in this case. But the law is equally clear that a trial court must give good reasons why an expert evidence is to be rejected". See the cases of Mfum Farms & Feedmill Ltd v. Madam Agnes Gyamfua – Deceased (Substituted by Mrs. Lovia Opoku Bandoh [2018] DLSC 2484; Nana Kwasi Broni & Anor. v. Kwame Kwakye & 2 Ors. [2017] DLSC 2491; Celestine Kuagbenu v. Cecilia Spencer [2015] DLSC 3224 & Mary Quarcoo and Nii Kojo Armah v. Mrs. Victoria Welbeck and Agnes Ashong [2015] DLSC 3255, per Ansah JSC.

Having found that the Plaintiff has been unable to prove the title of his grantor as well as the identity of his land, I believe it is ideal at this stage to consider the second issue raised in the additional issue filed by the counsel for the Defendant below.


Whether or not Plaintiff acquired any interest in the land in dispute from his grantor?

It is the law that a grantor of land can only give out land which he owns. In the case of The Registered Trustees of the Catholic Church, Achimota Accra v. Buildaf & 2 Others [2015] DLSC 3234, per Benin JSC decided: “That is the law that only the owner of land can give away title to a third person.” See also the cases of Edith v. Keelson [2012] 37 MLRG 127 at holding (2) per Dotse JSC; Benyak Co. Ltd v. Paytell

Ltd & Ors. [2013-2014] 2 SCGLR 976 at page 989 & Numo Adjei Kwanko II v. Lebanon Society & 2 Ors. [2016] DLSC 2786, per Ansah JSC. It is simple logic that if a person can only give what he has, it follows that if the Plaintiff’s grantor’s title has been found unreliable, there is no way the Plaintiff can rely on it. Our elders believe that “If you put your ladder against the wrong wall, you end up falling”.


In other words, the Plaintiff’s title will have no foundation to rest on. An Asian-Indian proverb goes, “You cannot build a house without digging a pit”. In view of the above principle, the Court finds that the Plaintiff acquired no good title from Daniel Tetteh Zorh.

Whether or not the Plaintiff conducted a search on the land in dispute prior to its acquisition?

It is the case of the Plaintiff that he conducted a search on the land prior to its acquisition. Counsel for the Plaintiff submitted in his written address on the legal burden at page 7 thus: “In law, all issues of fact in dispute are proved by evidence. It is a fundamental principle in the law of evidence that he who asserts or claims an entitlement has the onus of proving the basis of that claim”. He referred to the famous case of Majolagbe v. Larbi [1995] GLR 190 to the effect that a party on whom the burden lies cannot be deemed to have discharged the burden by merely mounting the box and repeating it on oath without producing any corroborative evidence that must necessarily exists if his averments were true. He added that the corroborative evidence may be documents.


After espousing the law correctly, counsel for the Plaintiff misapplied it to the facts. He noted that when the Plaintiff said the search report was there, the Defendant could have requested for it. Because he did not, the Plaintiff’s assertion should be deemed to be true. I find such a submission unfortunate. That was a smart attempt to shift the legal burden. The Plaintiff who assumes the legal burden must first lead evidence by tendering any document he has to prove his case before the burden can shift to the first Defendant; otherwise, he cannot be deemed to have proved it.


The Plaintiff in this case mounted the witness box by just reciting his facts on oath without proving it. He could have done so by the tendering of the report. I wonder why he could leave out such a document from his exhibits if there was any such document favourable to his case. According to a Yoruba proverb, “Medicine left in a bottle cannot help”.


In the case of Bousiako Co. Ltd v. Cocoa Marketing Board (1982-83) 2 GLR 824, it was held at page 839 that If a party had in his possession certain documents to establish his case, but fails to produce them, then the proper inference to be drawn is that the document never existed or if it did, it did not contain all the averments mentioned or testified about.


Granted a search was conducted at all at the Lands Commission before the acquisition of the land. It needs emphasizing the point that it is expected of any diligent purchaser of land not to conduct only formal searches but also informal searches too. In the case Zambramah v. Mohammed & Anor. [1992-93] 4 GBR 1614, the Court of Appeal per Brobbey J.A. (As he then was) held: “… As a person buying landed property the 3rd defendant was duty bound to investigate the title of his vendor. Proper investigation depended on each case but generally included enquiries aimed at establishing the validity of the vendor’s title. If no such enquiries were conducted and the title turned out to be defective, the purchaser would be deemed to have notice of the defect.”


In the case of Besley v. Besley [1878] 9 CH D. 103, it was held at page 109 that a purchaser must be wise in time. Dotse JSC speaking for the Supreme Court similarly decided in the case of Kwame Ofei v. Mrs. Janet Darko & 2 Ors. [2018] DLSC 140 that: “Based upon the above principle, I am of the respectful opinion

that, since the 1st defendant was in absolute possession and occupation of the disputed property the Plaintiff ought


to have investigated the presence of the 1st Defendant before proceeding to purchase the property. The 1st Defendant must be deemed to be in actual possession of the disputed property.”


In this case, there had been previous litigations between the first Defendant and the Plaintiff’s grantor and caretaker. If the evidence of the Plaintiff’s witnesses is anything to go by, then the first Defendant’s long possession of the land cannot be denied. According to PW3, he vacated the land after the discontinuance of the suit against them in 2001. There is no evidence that the Plaintiff’s grantor engaged another caretaker to farm on the land on his behalf. Conversely, there is no evidence on record that the first Defendant’s possession on the land was truncated. It would therefore have been easier for the Plaintiff to find out about the status of the land before acquiring it. There was no evidence of such informal search over the land.


The law does not tend to sympathize with purchasers who do not do due diligence before giving their monies out. In the case of Brown v. Quashigah (2003-2004) SCGLR 930, the apex Court again held: ‘’Purchasers of land who ignore signs of possession by a party other than their vendor on the land, do so at their own risk’’. See the cases of Acheampong v. Bantama Gyaasehene & Anor. [1992-93] 4 GBR 1447, per Lutterodt J.A.; Boating v. Dwinfour (1979) GLR 360 CA at holding 3 & Adisa Boya v. Zenabu Mohammed (Substituted by Adama Mohammed) & Mujeeb; Civil Appeal No. J4/44/2017, 14th February 2018, S.C. (Unreported).

There was however an attempt by the witnesses of the Plaintiff, particularly PW1 to create the impression that the first Defendant has ceased to be in occupation of the land, even though he admitted that the first Defendant had once occupied the land and put up some structures. The Yiddish say, “A half-truth is a whole lie”.

At pages 19 & 20 of the Proceedings, PW1 told the Court that it is PW2 who has been farming on their family land and not the first Defendant.

“Q: I put it to you that it is the first Defendant who has been farming on the land in dispute?

A: My Lord, it is not true”.


At pages 22 & 23 of the Proceedings, PW2 who claimed to be a relation of the first Defendant tried to follow the path of PW1 by denying that it is the first Defendant who is in possession of their family land. He stated under oath that he is rather in possession. But since the truth cannot be hidden forever, he ended up admitting the fact that it is the first Defendant rather who is in possession of the land.

“Q: It is not true that you are the representative and the caretaker of the Okwonko Family land situate at Dodowa, a portion of which is in dispute?

A: I am the caretaker.

Q: I put it to you that it is the first Defendant who is in occupation of the land you claim to be caretaker?

A: That is not so, my Lord.

Q: So who is presently in occupation of the land you claim to be the caretaker of?

A: It is the first Defendant who is in occupation.

Q: And he has been occupying this land for over 20 years now?

A: That is not so. It is less than 20 years.

Q: How many years has the first Defendant been occupying the land?

A: For about 15 years now.

Q: And it is the Defendant who is farming on the land and living on the land?

A: That is so”.


PW3 who claimed to have been caretaker for PW1’s father confirmed that the first Defendant is the one currently in possession of the land and has been the caretaker for about 18 years. This was what he said when he was questioned by the Court at page 35 of the Proceedings.

“Q: So who was in occupation of Okwonko’s land at the time the suit was in Court?

A: It was the first Defendant.

Q: At least for 17 years the first Defendant has been in occupation of the land.

A: My Lord, I have not calculated to know the number of years”.


The above clearly exposed the credibility of all the Plaintiff’s witnesses. I find that the Plaintiff did not do the requisite search expected of a diligent purchaser before acquiring his land. As the one leading the team, he should also have been more purposeful. “The speed of the leader is the speed of the gun”, says Mary Kay.


Whether or not there had been a previous litigation before any Court on this same subject matter?

There were several previous land litigations involving the first Defendant which were urged on the Court. But the first Defendant seemed not to be bothered by them at all. According to Dorothy Gilman, “A man from hell is not afraid of ashes”. It appears that all the previous litigations relied upon by the Plaintiff are not relevant in the determination of the issues at stake. The dispute between the first Defendant and the Plaintiff’s grantor and caretaker in the suit entitled: “Kwesi Korletey v. Daniel Zoewu in Suit No. 2/2001” was discontinued by the Plaintiff therein and first Defendant herein, as it could not be pursued for lack of jurisdiction. Since the merits of the case could not be considered and judgment was not given, it could not serve as res judicata. See the cases of Dahabieh v. S.A. Turqui & Bros (2001-02) SCGLR 498 at page 507, Mrs. Vincentia Mensah v. Numo Adjei Kwanko II [2017] DLSC 2601, Penkro v. Kumnipa [1987-88] 1 GLR 558 at page 561 & Akpi Sika v. Kotey [2010-2012] 2 GLR 575, C.A.


Concerning the case of Noah Tetteh Amankwah v. Kwesi Korletey in Suit No. A1/32/2014, relied upon by the Plaintiff, although the first Defendant lost, he successfully had the judgment given against him set aside on appeal by His Lordship Emmanuel Amo Yartey J. sitting at the Land Court 7, Accra on 23rd November 2016. In the case of Republic v. Adamah Thompson & Ors.; Ex parte Ahinakwa II (Substituted by) Ayikai (No. 2) [2013-2014] 2 SCGLR 1396, it was held at holding 4 that: “For a judgment to operate as res judicata, it must be valid and subsisting i.e. it must be final judgment delivered by a court of competent jurisdiction; otherwise the judgment could not operate as res judicata to bind the parties”. Therefore, a Judgment that has been set aside is not a subsisting judgment and thus, has no effect on an affected party.


There was also the case of Odikro Adjanor Tetteh v. Kwesi Korletey, referred to by the Plaintiff. The first Defendant explained that the land litigated upon in that case is different from the subject matter land in this Court. The Plaintiff agreed to that explanation that the two lands are different (See pages 12 & 13 of the Proceedings).

Indeed that matter had no nexus with this case and I am unable to attach any weight to it. It does appear that it was only tendered for one reason - prejudicing the mind of the Court, but I regret to say that I find that invitation unattractive and cannot honour it. I find that there has not been any determination of the ownership of the subject matter land in any previous suit.


Whether or not the second Defendant has responded to the concerns raised by the Plaintiff prior to this suit?

This issue appears to be moot. The Plaintiff gave the reason for making the second Defendant a party to the suit at paragraph 17 of his Statement of Claim because it failed “to deal with the matter of the first Defendant’s encroachment in relation to the registration of the Plaintiff’s land”. I am at a loss as to why the Plaintiff wanted the second Defendant to prevent the first Defendant to deal with the land and facilitated his registration when the first Defendant was also laying claim to the land and a Court of competent jurisdiction had not determined the legitimate owner. It is gleaned from the proceedings that the second Defendant filed no defence after entering appearance. It did not respond to anything said by the Plaintiff, but it is evident that it has no direct interest in the matter. It is a disinterested party and a nominal Defendant in the suit. I see its position as waiting to abide by whatever orders the Court may give at the end of the day.


Whether or not the Plaintiff’s claim is statute barred?

The Defendant pleaded limitation against the Plaintiff’s action. I do not think it is an appropriate defence here. The Plaintiff acquired his land only in 2009 and commenced this action in 2013, just three years after allegedly acquiring same.

Section 10 (1) of the Limitation Act, 1972 (NRCD 54) provides: “a person shall not bring an action to recover a land after the expiration of twelve years from the date on which the right of action accrued to the person bringing it or, if it first accrued to a person through whom the first mentioned claimed to that person”.


Before limitation can apply, the Plaintiff must have been aware of the adverse possession of the land exercised by the Defendant for twelve years. In the case of Mrs. Vivian Aku-Brown Danquah v. Samuel Lanquaye Odartey [2016] DLSC 2833 it was held: “A party who seeks to rely on the statute of limitation as a defence in an action to recover land must prove that he had been in adverse possession of the land subject-matter of the action and that such adverse possession has been continuous for more than twelve years to the knowledge of the true owner.”


It needs pointing out that the defence of limitation is dependent on the facts of a case and contains exceptions where time does not run. Pwamang JSC noted it the point in the case of Kwadwo Dankwa & 3 Others v. Anglogold Ashanti Ltd. [2018] DLSC 192. I am not sure the defence may apply in this present circumstance.


Whether or not the Plaintiff is entitled to his claims.

The Supreme Court speaking per Adinyira JSC in the recent case of Yehans International Ltd. v. Martey Tsuru Family and 1 Or., [2018] DLSC 2488 held: “It is settled that a person claiming title has to prove: i) his root of title, ii) mode of acquisition and iii) various acts of possession exercised over the land … This can be proved either by traditional evidence or by overt acts of ownership in respect of the land in dispute. A party who relies on a derivative title must prove the title of his grantor. Awuku v. Tetteh [2011] 1 SCGLR 366”.


The evidence led by the Plaintiff to establish his claim was very feeble and unreliable. The grantor of the Plaintiff’s interest and title in the land could not be establish satisfactorily. There were some inconsistencies in the first Defendant’s case too. The Plaintiff impeached the signature on Exhibits 2 ‘A’ and 2 ‘B’. But the Plaintiff ought to have first established his case satisfactorily before he could rely on the weaknesses in the first Defendant’s case. A Yoruba proverb says, “We must blame the thief before we say that where the owner put her property was improper”.


That aside, the doubts in the first Defendant’s case were not as serious as that of the Plaintiff. A court is to overlook minor, insignificant and trivial inconsistencies. A Filipino proverb says, “Not all that is black is charcoal”. In the case of Muriel Vaughn – Williams (Per her lawful attorney, Mrs. Alice Acquaye) v. B. K. Oppong (Substituted by Mrs Cecilia Oppong) (2015) 84 GMJ 171, Adinyira JSC at page 183 held: “As a court we must not dwell upon insignificant or non-critical inconsistencies to deny justice to a party who has substantially discharged her burden of persuasion”


In Adisa Boya v. Zenabu Mohammed (Substituted by Adama Mohammed) and Mujeeb, supra, Gbadegbe JSC also decided: “We do not think that mere insignificant inconsistencies in the presentation of a truthful case would operate to deprive it of the quality of proof that would result in a court preferring a case planked on fraud”. See the cases of Effisah v. Ansah (2005-06) SC GLR 943 at holding (6); Sarkodie v. FKA Co. Ltd. [2009] SCGLR 65 at page 71 and Fosua v. Dufie [2008-2009] 2 GLR 1 at 25.


Further, the first Defendant did not counterclaim and so, he was not expected to assume the same burden as Plaintiff. Although the heading of his pleadings suggested that the Defendant had a counterclaim, the body had no such counterclaim. There was ample evidence on record that the Defendant and his family have been occupying the land for about 50 years. Counsel for the Plaintiff submitted that long possession does not ripen into ownership.


The principle is true to some extent, but raises a presumption in the Defendant’s favour. (See section 48 of the Evidence Act, 1975 (NRCD 323). His site plan also corresponded with the land on the ground. Counsel for the Plaintiff’s last questions to the first Defendant even seems that he agrees with the first Defendant that the land is for his family, though he had expected the head of family to litigate.

“Q: So who is the current head of your family?

A: My Lord, Nene Kanor Ateiapah

Q: As you inherit patrilineally, he as the head of your family is now the caretaker of your family land?

A: My Lord, he takes care of the entire family lands but the disputed land belongs to me and my siblings and I am in charge.

Q: I am putting it to you that the land you are claiming to belong to you and your siblings belongs to your family.

A: That is not so”. (My emphasis).


The Court would however stay away from granting the first Defendant the reliefs he had not sought for. The Albanians say, “A tailless dog cannot express his joy”. The debate on whether a Court can grant reliefs not asked by a party appears not to continue unabated. In the case of Hanna Asi (No. 2) v. GIHOC Refrigeration (2007-2008) SCGLR 458 at page 479, the Supreme Court in a review departed from its earlier position that the Courts were not in the business of conferring unsolicited remedies on a party who has not asked for it.


After the review decision paving way for the Courts to grant unsolicited reliefs, the apex Court appeared to revert to its earlier position. In the case of Nyamaa v. Amponsah (2009) SCGLR 361 at page 365, it held: “Thus, a judge who makes an order for a relief that was not sought for by a party to the action can be held to have exercised a jurisdictional irregularity". Nonetheless, the Defendant is better off in the circumstance. According to Darrell Royal, “You never lose a game if your opponent doesn’t score”. The Plaintiff’s action is accordingly dismissed in limine. I award costs of GH 6,000.00 in favour of the first Defendant.