IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT ( LAND DIVISION)
ACCRA - A.D 2018
ROBERT AMASSAH KOTEY - (Plaintiff)
ISAAC NARTEY AND 3 OTHERS - (Defendants)
DATE: 26 TH NOVEMBER, 2018
SUIT NO: FAL/23/12
JUDGES: ALEXANDER OSEI TUTU J. SITTING AS A JUSTICE OF THE HIGH COURT
GABRIEL KUDITCHIR FOR JAMES OWURA MENSAH ESQ. FOR THE PLAINTIFF PRESENT
ADJEI LARTEY ESQ. FOR THE DEFENDANTS ABSENT
The Plaintiff commenced this action on 12th October 2011. The reliefs contained in the endorsement on the writ of summons are:
A Declaration of title to all that piece of land at Apese Abormenya measuring an approximate area of 4.60 acres or 1.60 hectares.
Recovery of possession of the said land.
Perpetual injunction against the Defendants and their workmen, agents, privies, etc.
General Damages for trespass.
Any further order (s) as to this Court may appear just.
The Defendants filed a common defence on 1st November 2011 which was replied to by the Plaintiff on 7th December 2011. It appears that only the first and the fourth Defendants entered an appearance, while the second and third Defendant filed none as enjoined by the rules of Court (See Order 9 of C.I. 47). Nevertheless, the defence they filed cannot be ignored. Ofoe J.A. in the case of Samuel Kakra Mensah v. Christopher Kwablaligbidi  75 G. M. J. 157, C.A. at pages 167 -168 held: “In the Supreme
Court case of Major Mac Dorbi v. Richard Frimpong Civil Appeal No. J4/45/2011, even though the 2nd defendant did not enter appearance or file any defence in the trial, the Supreme Court held that in so far as he participated fully in the trial, non-entry of appearance or his failure to file a defence would not deny him the benefit of the judgment.”
On 27th September 2011, the Court adopted the following issues filed by the Plaintiff as the issues for determination:
Whether or not the Plaintiff is the bona fide owner of the land in question.
Whether or not the Plaintiff made a complaint to the Ghana Police Service at Dodowa when the Defendant trespassed unto the land?
Whether or not the Plaintiff is entitled to his claims?
Any other issue (s) arising from the pleadings.
The Case of the Plaintiff
The Plaintiff’s case is that he acquired a parcel of land from Asafoatse Adibor, III, the head of family and lawful representative of the Abonse Adibor family of Doryumu in the Dangbe West District of the Greater Accra Region. Asafoatse Adibor III executed a lease for the Plaintiff in respect of the parcel of land measuring an approximate area of 4.60 acres or 1.60 hectares on 2nd June 2009. In September 2011, the Defendants who are ordinarily residents of Apese Aborminya near Ago-meda entered the Plaintiff’s land without his consent. He lodged a complaint with the Dodowa police who arrested the Defendants and two others. Subsequently, they were admitted to bail. Despite the police investigations into the matter, the Defendants continued to trespass on the Plaintiff’s land and also threatened his piggery project on the land.
The main defence of the Defendants was that the land in dispute does not form part of the land of the Plaintiff’s grantor, since there is a clear boundary between his grantor’s land and the land of Asafoatse Otiboe, who is their grantor. They contended that since the Plaintiff’s grantor does not own the land the subject matter of dispute in this Court, he could not have granted it to the Plaintiff. According to the Defendants, they have rather occupied the land for more than sixty (60) years. The Defendants further denied the Plaintiff’s allegation of reporting them to the police. They claimed to have reported the Plaintiff rather for his interference with the land and an extract was even prepared from the Station for them. According to counsel for the Plaintiff in his written address, after directions had been taken, the Plaintiff filed an application dated 14th May 2014 to join his grantor, Asafoatse Adibor III to the suit as second Plaintiff.
Order 4 rule 5 (2) (b) of the High Court Civil Procedure Rules, 2004 (C.I. 47), grants the Court the power to make an order for joinder. The rule states: “At any stage of the proceedings the Court may on such terms as it thinks just either on its own motion or on application … (b) order any person who ought to have been joined as a party or whose presence before the Court is necessary to ensure that all matters in dispute in the proceedings are effectively and completely determined and adjudicated upon to be added as a party”. There is no indication from the docket though that the order was granted, but counsel for the Plaintiff in his written address claimed it was granted. I understand the docket got missing along the line and a temporary one was created. For that reason, I will give counsel for the Plaintiff the benefit of doubt that the order application was granted. The alleged joinder thus triggered an amendment of the writ which was filed on 8th July, 2016.
I have no idea of the date the order was granted, because it is not indicated on the amended writ and this is in clear violation of Order 4 rule 5 (5) of C.I. 47. The said Order provides: “When an order is made under subrule (2), the writ shall within fourteen days after the making of the order or such other period as may be specified in the order, be amended accordingly and indorsed with a reference to the order in pursuance of which the amendment is made and with the date on which the order for the amendment is made”. It can be gleaned from the above provision that, the date the order of joinder was made should have been indicated on the amended writ. Further, the Plaintiff had only fourteen days to amend the writ after the order had been made, unless the Court otherwise specified. The above provisions are expressed in mandatory terms in the rules of Court. If one carefully considers that the application and the amended process spanned a period over two years, then there is a cause to be suspect that the order was not complied with within the required period. When a Court joins a party to a suit, and it becomes necessary for the pleadings to be amended, Order 16 rule 9 (3) of C.I. 47 also demands that the name of the Judge be indicated on the amended process, as well as the date the order was granted.
It has consistently been the law that where the process is not amended within fourteen days or within the time frame given by the judge, the amendment is void. In the case of Agbeshie v. GPHA [2007-2008] 1 SCGLR 469 at page 482, it was held: “… an applicant in whose favour an order of joinder or any order has been made has the duty to observe and implement the terms upon which the application was granted to the letter (sic). If he did not (take such steps as are necessary to comply with the terms and implement them) the order becomes void and the effect in law was that the person/s did not become a plaintiff”. (My emphasis).
Similarly, in the case of Akufo-Addo v. Catherine  1 GLR 377, it was held at holding 1 that: “… where a party sought and obtained leave to amend his pleadings but failed to do so, the order lapsed and the process became ipso facto void”. See also the cases of Henry Nuertey Karboe v. Francis Amosa; Civil
Appeal No. J4/56/2014, dated 21st April 2016, S.C. (Unreported); Ayiwah & Anor. v. Badu & Ors.
 GLR 86 at holding 1 and Kai v. Amarkye [1982-83] GLR 817, CA. Besides these concerns, the Plaintiff’s amended writ does not contain the name of the second Plaintiff who was allegedly joined to the suit. All that is stated on the amended writ for the Plaintiffs is “Robert Amasa Kotey and Anor”. The description of the second Plaintiff as ‘Anor.’ on the amended writ is palpably wrong.
The Court of Appeal decided in the case of Kai v. Amarkye [1982-83] GLR 817 at holding 1 that a party was not entitled to introduce into his pleadings, amendments which would not have been allowed had he stated in writing the exact amendment he was seeking. [The emphasis is mine]. I believe that in this case if the Plaintiff had not specifically mentioned the name of the person he is seeking to join, but only stated that he was seeking to join ‘anor’, the Court would not have granted the application for joinder. After the filing of the amended writ, no other process filed by the Plaintiffs bore the name of the second Plaintiff or an indication that there is even another Plaintiff in the suit. The Plaintiffs should have taken their time to do the proper thing. Our elders say, he who goes to sleep with an itching anus, wakes up with smelly fingers. In the circumstance, I proceed to strike out the amended writ as being incompetent and the second Plaintiff as a party in this suit. I would therefore deal with the matter based on the original writ of the Plaintiff. I do not see any injustice caused to the Plaintiffs, because the second Plaintiff who was sought to be joined to the suit was passive during the entire duration of the matter. Apart from him not attending Court, he also did not give any evidence during the trial.
It was not surprising that counsel for the Plaintiff submitted at page 3 of his written address filed on 15th November 2018 that:
“Respectfully, we must say that, the 2nd Plaintiff is a nominal party in the instant suit”. The grantor of the Plaintiff might have encouraged him at home, but when it mattered most in court, he left the Plaintiff to carry his own load. Our elders say, it is only when there is a stampede that a person with big buttocks realizes that she carries a load.
The issues set down for trial on 27th September 2013 were:
Whether or not the Plaintiff is the bona fide owner of the parcel of land in question?
Whether or not the Plaintiff made a complaint to the Ghana Police Service at Dodowa when the Defendants trespassed unto the land?
Whether or not the Plaintiff is entitled to his claim?
Any other issues arising out of the pleadings
On 22nd January 2018, the Court differently constituted directed the parties to file their witness statement. It does appear that the Plaintiff complied with the order, but the Defendants defaulted. The Court could not wait for the Defendants forever, so the matter had to proceed. A defaulting defendant takes the blame for failing to appear in court to defend an action against him. In the case of Ex parte State Housing Co. Ltd. (No. 2)  SCGLR 185 it was held that a party who disables himself from being heard cannot later turn around and accused the adjudicator of breaching the rules of natural justice. See also Republic v. Court of Appeal Accra, Ex Parte East Dadekotopon Development Trust, Civil Motion No. J5/39/2015, dated 30th July 2015 and Baiden v. Solomon  GLR 488 at page 495. Barely seven years after the commencement of the suit, the Plaintiff eventually got the opportunity to mount the witness box on 26th October, 2018. He testified through his lawful attorney and nephew, Edmund Afutu Kotey. Edward Kotey testified on the strength of two power of attorneys granted him by the Plaintiff. The first power of attorney was dated 21st March 2018 marked as Exhibit ‘A’ and it was this document which he relied upon to prosecute the case for the Plaintiff during the trial.
The power was found to be defective for want of a valid witness to the signature of the principal as required by the laws of this Country. See the cases of Asante-Appiah v. Amponsah alias Mansah (2009) SC GLR 90; Danso-Dapaah v. Falcon Crest Investment Ltd. & 4 Ors.  89 GMJ 148 at page 167 & Frimpong & Anor. v. Rome  58 GMJ 131 at page 155.
The Plaintiff prepared another Power of Attorney on 6th June 2018 for the attorney. Upon receipt of the power, the attorney did not file any further witness statement. What he forgot was that the Power of Attorney granted him in June 2018 did not adopt all his prior acts and evidence. In the case of Gordon v. Essien  1 GLR 232, it was held at holding 3 that: “… a power of attorney took effect… from the date indicated within the instrument”. The Power in this case took prospective effect, thus rendering the witness statement of the attorney filed prior to the issuance of the second power incompetent. That would mean that the attorney’s witness statement dated 19th February 2018 cannot be accepted as evidence given in his capacity as the Plaintiff’s attorney.
A Hausa proverb goes, you cannot cure your hunger by bathing with gari. Nonetheless, it must be emphasised here that there is no obligation on a party to a suit to personally give evidence in Court and this principle is established by a plethora of cases. In the case of In re Ashalley Botwe Lands; Adjei Agbosu v. Kotey (2003-04) SCGLR 420, it was held thus: "There was no rule of law stating that a party would succeed in his case only if he testified at the trial”.
Atuguba JSC (As he then was) in the case of J. Musama Disco Christo Church v. Prophet Miritaiah Jona Jehu -Appiah, Civil Appeal No. J4/31/2012, dated 11th November 2015, (Unreported) decided: “I thought that the law has always been that any competent person with knowledge of the subject-matter could give evidence for a party. And if it is the party himself who has tasked a knowledgeable person to testify for and on his behalf, nobody else has the right to challenge that. In other words, I have always thought that the party to a case has full liberty to decide who should talk for him. . . . all the decided cases make it clear that a party need not testify by himself.”
In the case of Armah v. Hydrafoam Estates (Gh.) Ltd. [2013-2014] 2 SCGLR 1551, the apex Court affirmed the decision of the trial court that had given Judgment for a Plaintiff who did not testify but relied on the evidence of only a surveyor who testified as a Court expert to determine the case. The Commentary on section 12 (2) of the Evidence Act, 1975 (NRCD 323) as reproduced by Kanyoke JA in the case of Kai v. Kissiedu [2010-2012] 2 GLR 57 at page 75 further states: “A party with the burden of producing evidence is entitled to rely on all the evidence in the case and need not rest entirely on evidence adduced by him. The party with the burden of producing evidence on the issue may point to evidence introduced by another party which meets or helps meet the test of sufficiency. It is for this reason that the phrase ‘on all the evidence’ is included in each of the tests of sufficiency.” See the cases of Accra Brewery Ltd. v. John Tagoe  48 G.M.J. 21 at page 44; Messrs Van Kirksey & Associates v. Adjeso & Others [2013-2015] 1 GLR 24, per Welbourne J.A. Similarly, in the case of Adjei Fio v. Mate Tesa [2013-2014] 2 SCGLR 1537, four out of the five Plaintiffs who testified during the trial were found to lack capacity. The fifth Plaintiff who had capacity did not testify during the trial. The apex Court in its bid to do substantial justice treated the evidence of the Plaintiffs who testified but lacked capacity as witnesses and relied on their testimonies to enter judgment for the fifth Plaintiff who did not give any evidence.
Gbadegbe JSC held at holding 4 as follows: “On the question of the fifth plaintiff-respondent not tendering any evidence in the matter, the Supreme Court would hold that there is no obligation on a party litigant to personally testify in support of his case. The correct position is that a party may rely on the evidence of his witnesses and when such evidence satisfies the evidential burden as was found by the court of Appeal, the failure to testify cannot by itself operate adversely against the evidence led in the matter.”
Guided by the above decisions, I am emboldened to treat the witness statement filed by Edmund Afutu Kotey as the evidence of a witness for the Plaintiff, but not evidence tended in his capacity as an attorney for the Plaintiff.
Whether or not the Plaintiff made a complaint to the Ghana Police Service at Dodowa when the Defendant trespassed unto the land?
It is the law that a party who makes an assertion bears the legal burden of establishing it. This was stated by Wood C.J. (As she then was) in the case of Poku v. Poku  18 M.L.R.G. 1 at page 30 thus: “Generally, the burden of proof is therefore on the party asserting the facts, with the evidential burden shifting as the justice of the case demands. The standard of degree must also necessarily be proof on the preponderance of the probabilities”. Similarly, Gbadegbe JSC in the case of Sagoe v. SSNIT (2011) 30 GMJ 133; (2012) 52 GMJ 47 at page 58 held: “The party who asserts the affirmative of an issue has the incidence of the legal burden . . .”
The Plaintiff in this case averred at paragraphs 6 and 7 of his Statement of Claim that in September 2011, the 1st and 2nd Defendants together with two other persons entered the land without his consent so he lodged a complaint with the Police at Dodowa and the Defendants herein were arrested and subsequently granted bail. The Defendants denied the assertion at paragraph 8 of their joint Statement of Defence. The burden then rested on the Plaintiff to prove the allegation made that:
(1) The Defendants trespassed unto the Plaintiff’s land and
(2) He lodged a complaint with the Police at Dodowa against the Defendants.
The Plaintiff claimed that the first and second Defendants committed trespass with two other persons. The exact act of trespass committed by the Defendants could not be established. He could not also prove what the third and fourth Defendants did to amount to trespass. Whenever trespass is alleged, there must always be a positive and direct act. In the case of Ebusuapanyin Akuma Mensah v. Nana Atta Komfo II  39 GMJ at page 80, the Court of Appeal, per Barbara Ackah-Yensu J.A. held: “As with all forms of trespass, there must be directness; the plaintiff must prove direct invasion of the defendant on his land for a claim of trespass to succeed…” On the date the Defendants allegedly committed the trespass, two conflicting and different dates were given. At paragraph 6 of the Statement of Claim, the Plaintiff gave the date in September 2011. During the trial, the attorney stated the date in April 2011 at paragraph 13 of his witness statement. When the Plaintiff got the opportunity to lead evidence to establish his case in relation to the police complaint, all his witness stated at paragraphs 15 to 18 was that:
“(15) In consequence of such blatant illegality, Plaintiff lodged a complaint of trespass on his lawfully acquired property to the Police at Doryumu.
(16) The Police in Doryumu immediately effected the arrest of the Defendants herein together with two other persons and subsequently granted them bail pending further investigations.
(17) The Plaintiff is not aware of any case having been reported against him to the Police for criminal trespass for which a Police extract was obtained by the Defendants herein. This is palpably false.
(18) The Defendants without regard to law and order and due process, continue to trespass unto the land the Plaintiff validly and legally acquired, despite the pendency of the further investigations by the Police at Doryumu into the matter”.
It appears that what the Plaintiff did virtually was a repetition of his pleadings. In the case of Eric Asante v. The Republic  109 G.M.J. 1, Dotse JSC at page 8 decided: “It must be noted with all emphasis that where a party in a trial refers to matters that are capable of independent proof in a positive manner and those matters are denied, the party does not establish the truth of those matters by stating them in the witness box and failing to proffer the other evidence which in the circumstances of the case should be available. Where the circumstances of the case are such that there can be no corroborative evidence, that will be a different matter”. Similarly, in the case of Nortey v. African Institute of Journalism and Communication (2014) 77 GMJ 1, Akamba JSC held at page 30 thus: “This court pointed out in Ackah v. Pergah Transport Ltd (2010) SC GLR, (2011) 31 GMJ 174 the various methods of producing evidence which includes the testimonies of the party and material witnesses, admissible hearsay, documentary and things (often described as real evidence), without which the party might not succeed to establish the requisite degree of credibility concerning a fact in the mind of the tribunal or court”. See also the cases of Emmanuel Osei Amoako v. Standford Edward Osei (substituted by Bridget Osei Lartey); Civil App. No. J4/3/2016 dated 1st June 2016, S.C. (Unreported), per Appau JSC and Jacqueline Asabre & Anor. v. Johnson Aboagye Asim  109 G.M.J. 206 at 235.
It needs pointing out here that pleadings that have been denied by an adversary require proof by way of evidence to discharge the legal burden. Between the Plaintiff and the Defendant, the law expects the former who is making an assertion to establish it by positive evidence. Although coconut may be sweeter and bigger than the cola nut, the cola nut is eaten with more respect. Plaintiff in this case could have called the police officer he lodged his complaint with or subpoenaed them to appear in Court to testify. Better still, the Plaintiff could have tendered the Police extract as exhibit. The Plaintiff did none of these. The legal burden would have shifted to the Defendants had the Plaintiff succeeded in leading credible evidence to establish the allegation.
In my view, the Plaintiff has been unable to discharge the legal burden on him to establish that the Defendants trespassed unto his land and that he lodged a complaint with the Police against the Defendants for their trespass.
Whether or not the Plaintiff is the bona fide owner of the land in question?
In land suits, the Plaintiff is required to establish the root of his title, the mode of his acquisition and the identity of his land among others. The Supreme Court speaking per Adinyira JSC in the recent case of Yehans International Ltd. v. Martey Tsuru Family and 1 Or.,  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 by 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  1 SCGLR 366”.
Did the Plaintiff establish the above requirements? We would soon find out. On his root of title, he claimed that the land forms part of his grantor lands. He relied on a lease dated 2nd June 2009. The attributes of a lawful lease were stated by the Supreme Court in the case of Duodu-Sakyiama v. T.D.C., Civil App. No. J4/25/2015, dated 6th June 2016, S.C. (Unreported), where it was held: “The material terms of a valid lease are as stated by da Rocha and Lodoh in their book; ‘PRACTICAL DRAFTSMAN’, published by DR & L Printing and Publishing Services, Accra, Ghana – 1998; page 50, viz;
Identity of the lessor and the lessee and the capacities in which they are contracting;
A precise description of the land to be leased;
The duration of the lease and its commencement date;
The consideration for the lease;
The covenants, stipulations and conditions which the parties intend to govern their relationship; and Signature of the parties or their agents duly authorized in writing to sign on their behalf”.
In the above case, when the entire elements were not established, the apex Court held the instrument invalid. His Lordship Appau JSC held: “Exhibit ‘A’ does not satisfy all the requirements stated above; particularly requirements (e) and (f). Exhibit ‘A’ is therefore not a valid lease that is enforceable in our courts.”
One essential feature identified in the above case is point (d) having to do with the consideration for the lease. Even where the consideration is not in cash but it is a form of barter, it has to be expressly stated. Dennis Adjei J.A. at page 68 of his book, Land Law, Practice and Conveyancing in Ghana explained: “A sale may be barter … The parties must state the property that was used as barter and if possible its value and shall appear in the receipt clause.”
In this case, the Plaintiff never stated anywhere in both his pleadings as well as in his evidence, the consideration he provided for the land. He also tendered no receipt evidencing payment of the land. In the lease he tendered as Exhibit ‘B’, the consideration was missing. The rent allegedly agreed is also left blank. When our Court of Appeal was confronted with a similar issue in the case of Okai v. Ocansey [1992-93] 3 GBR 1028, it held per Adjabeng J.A. as follows: “There was no agreement for a lease between the plaintiff and the 1st defendant because they had not agreed on essential terms such as … the rent payable. Terms that could not be implied in a lease ought to have been expressly stated or agreed upon before the court could decree specific performance.” See also Gibson’s Conveyancing, 21st ed. Page 126, Paragraph 2. It regrettable that in this case, the lease does not give any narration in the recitals of his grantor’s root of title. Further, the site plan attached to the lease does not contain any date and the signature of the Director of Survey. These have been found to be wrong.
In the case of Abed Nortey v. African Institute of Journalism and Communication [supra] at page 10, Akamba JSC delivering the unanimous decision of the Supreme Court held: “Exhibit ‘A’ which is a site plan … is not dated and also not signed by the Director of Survey or his representative. Indeed, this omission by the plaintiff is contrary to section 3 (1) of L.I. 1444, the Survey (Supervision and Approval of Plans) Regulations, 1989 which makes it mandatory for plans of any parcel of land attached to any instrument for the registration of such instruments to be approved by the Director of Survey or any official surveyor authorized in that behalf. As a result of this stark infringement of the statutory requirement, exhibit ‘A’ is rendered of no probative value as rightly determined by the Court of Appeal. Notwithstanding that the exhibit ‘A’ was accepted in evidence without objection, it could not constitute evidence for the purpose for which it was tendered since it infringed the instrument. This is so because the courts have a duty to ensure compliance with statutes including subsidiary legislations like L.I. 1444”.
Moving on, the Plaintiff is relying on the fact that he has taken steps to have the land registered in his name by requesting the Land Title Registry, Tema District to prepare a cadastral plan for the preparation of a Land Certificate. He tendered it in evidence as Exhibit ‘C’. These are crucial facts which should have been pleaded, but were not. Let me say here that the registration of a land per se does not by itself render the title of the person in whose name the land has been registered unimpeachable. In the case of Osae v. Adjeifio [2008-09] 1 GLR 606, it was decided at holding 5 as follows: “It was settled that the registration of an instrument per se did not confer an unimpeachable title on the holder of the registered instrument.” Pwamang JSC made a similar point in the case of John Kwadwo Bobie v. 21st Century Construction Co. Ltd. & Ors.; Civil Appeal No. J4/5/2014, dated 9th March, 2016, SC (Unreported) thus: “The settled law is that registration of instruments affecting land under the Land Registry Act, 1962 (Act 122) is not a guarantee of title to the land where the person who is registered is not the true owner of the land.”
The lease was also not stamped as required by law. The Supreme Court recently held a similar unstamped instrument that had been registered as invalid. In the case of General Emmanuel A. Erskine & Another v. Victoria Okpoti & Another  DLSC 189, the learned Dotse JSC decided:
“It is an undeniable fact that the 2nd defendants document No. 1220/1969 had not been stamped before being registered ... Not having done any of the above meant that Exhibit 3 was processed in clear breach of section 17 of the Stamp Act 1965 (Act 311) which states “no instrument shall be registered unless it had been stamped.” Section 4 (1) (2) of Act 311 specifically directed that stamp duty if paid “shall be denoted by impressed stamps only.” There being no explanation as to how Exhibit 3 was registered without compliance with these strict statutory requirements and the directives stated in Exhibit J, meant that it is an exhibit of doubtful validity and same must be rejected”
Moreover, the lease has not been duly proved. Although it is signed by a Registrar of the High Court, it does not have the name of the person who executed it and the person who witnessed the signature. It is not even dated and neither does it conform to the requirements of the law as stated under section 5 of the Land Registry Act, 1962 (Act 122). In the case of Kwadwo S. Bamfo v. Kwesi Sintim  41 GMJ 1 at pages 14-15, SC, it was held per Owusu JSC that for an instrument to be valid, “the oaths must be so proved in the presence of the parties to that document”.
Due to the negligence of the officials of the Lands Commission in this case, the lease was accepted for the processing of the registration. That however cannot blind my eyes from rejecting it. In the General Erskine’s case supra, His Lordship Dotse JSC emphasized the need not to attach any probative weight to such documents. He held as follows: “Granted that, the Lands Commission staff were negligent in not fixing the impressive stamp on Exhibit 3, the 2nd defendant should have provided evidence to clear the non-compliance. What must be clearly noted is that, the various stages in the registration process of land documents have been well structured such as to give information to the public about prior compliance with the process. Having failed, refused and complicit as the facts have shown in complying with the duly established procedural steps in the registration of the document in Exhibit 3, the 2nd Defendant must be deemed for all purposes not to have met the litmus test in the registration process.”
Among the documents tendered by the Plaintiff to establish his title are the search conducted at the Lands Commission, his yellow card, the newspaper publication and the letter written by the Plaintiff to warn off the Defendants from the land. I am surprised that the Plaintiff tendered the Spectator Newspaper Publication in evidence. According to a Nigerian proverb, it is ignorance which makes a rat to call a cat to a fight. The advertisement was published on October 22, 2011. By then, the instant action had commenced. The law imposes a duty on any person who wants to register his land to notify the Lands Registrar so that he suspends the process to abide by the Court’s decision. The failure to disclose the pendency of an action in Court to the Land Registrar could lead to the eventual cancellation of the certificate by the Court if it is even issued. Benin JSC in the case of The Registered Trustees of the Catholic Church, Achimota Accra v. Buildaf 2 Others  91 GMJ 36-37 explained the law thus: “This provision [section 12(2) of PNDCL 152] imposes a duty of full and complete disclosure of pending litigation affecting the land that is sought to be registered….. It was the failure of the appellants to disclose the pendency of the two actions at the High Court which enabled the certificate to be issued by the registrar. It was a deliberate act. That was in breach of the law… the trial court’s decision that the certificate –exhibit 4- be cancelled which was endorsed by the Court of Appeal was thus justified.”
In the case of Numo Nortey Adjeifio (substituted by Nii Adjei Sankuma) & 2 Ors. v. Tesa  48 G.M.J. 65 at pages 101-102, Akamba J.A. (As he then was) shared similar sentiments when he held: “At the time the respondents filed their claim with the Registrar they had already initiated the court action hence the Registrar was obliged to note their interest only and to stay further action until the court has determined the matter before it”.
Furthermore, the search on the land was allegedly conducted in 2011. I wonder how a prudent purchaser of land would execute a lease in 2009 before conducting a search about his grantor’s title in 2011. In the yellow paper tendered too, I cannot find either the Plaintiff’s name or that of his grantor on it. I can only find the names of Emmanuel Tetteh and Maxwell Adu-Nsafoa. Plaintiff again did not tell us who they are in connection with the land. The very land too has not been properly described on the exhibit. In the case of Mariam Obeng Mintah v. Francis Ampeyin  95 GMJ 1, the Supreme Court speaking through Akamba JSC at page 15 held that documents tendered during a trial must relate to the case. The extent of the Plaintiff’s land as stated on his site plan being 4.60 acres or 1.86 hectares is different from the size of 4.392 acres or 1.778 hectares stated by the site plan attached to the search report marked as Exhibit ‘D’. No explanation was proffered by the Plaintiff for the discrepancy. Had the lease of the Plaintiff been valid at all, it seems to me that the purpose for which the land is being put to use would defeat the very purpose for which it was granted.
Paragraph 2 (b) of the lease states:
“(2) The lessee hereby covenants with the lessor as follows: …
(b) Not to use the demised land otherwise than for RESIDENTIAL Purposes only …”
In the attorney’s evidence, he stated at paragraph 19 as allows: “The piggery project currently being undertaken on the said piece of land is currently under threat of destruction by the illegal and unlawful activities of the Defendant’s herein”. Further, there are basically two main ways of proving one’s title; either by relying on document (s) or overt acts of long possession. In the case of Nsowaa & 2 Others v. Bamba & Another  86 GMJ 21, the Court of Appeal held at page 24 that: “In law title to land may take the form of possession or it may take the form of documents or series of documents. It is however stipulated in section 23 (5) of the Land Title Registration Law, 1986 (PNDCL 152) that a good title is always documentary.” See also the cases of F. K. A. Ltd. v. Adjei Boadi  43 G.M.J. 47, C.A., per Abban JA and Deliman Co. Ltd. v. HFC Bank Ghana Ltd.  92 GMJ 1 at page 25, per Barbara Ackah-Yensu JA. In this case, the Plaintiff’s lease and documents he relied upon have failed him. What could have resuscitated his case was acts of possession. He could not establish any acts of possession. Possession in proving one’s title has to be long and undisturbed. In the case of Rosina Aryee v. Shell Ghana Ltd. & Fraga Oil, Civil Appeal No. J4/3/2015, dated 22/10/2015, Unreported, Benin JSC held:
“If a party relies on his claim for ownership in possession, then there must be evidence of clear and positive acts of unchallenged and sustained possession or substantiated user of the land.”
In the case of Yehans International Ltd. v. Martey Tsuru Family and 1 Or., [supra] decided only last month, the Supreme Court held: “… to prove ownership through possession, the possession must be long, peaceful and uninterrupted…” See also the case of Kama Health Services Ltd. v. Unilever Gh. Ltd. [2013-2014] 2 SCGLR 861 at pages 881-882. According to the Plaintiff in this case, he acquired the land on 2nd June, 2009. In less than a year, i.e. on 7th April, 2010, he wrote to the Defendants warning them to stay away from it. (See Exhibit ‘F’). This mean that the Plaintiff’s possession has not been long, but has been disturbed. Consequently, the Plaintiff cannot be deemed to be in effective possession of the land. Apparently, the Plaintiff suspecting that the reliance on his own possession could give him away, strongly relied on the long possession of his grantor. He pleaded at paragraph 4 of his reply that his grantor’s family has been in possession of the land the subject matter of this litigation since time immemorial. It was incumbent on the Plaintiff’s grantor to have testified during the trial in the circumstances of this case. Marty Rubin philosophically stated: ‘An echo has no voice of its own’. Indeed the Plaintiff needed the voice of his grantor to generate the echo in this case. Although, a case is not won based on the number of witnesses called, a party may stand the risk of losing his case where he fails to call material witnesses in appropriate cases such as this to corroborate his evidence.
Let me point out here that the principle of law which requires material witnesses to be called is not applicable only in criminal cases. It applies also in civil cases. See the case of J. K. Kpogo v. Fiadzorgble  89 G.M.J. 52 S.C. In the wisdom of our ancestors, a bird does not fly on one wing. And in the case of Agboada v. Kponor and Others (1961) GLR 670, it was held:” Since the plaintiff failed to call his vendor as a witness or to join him as a party to the suit, the trial local court was in order in dismissing his claim”. The Plaintiff claimed that his grantor’s family has been on the land since time immemorial. He did not tell the Court the method of acquisition. In the case of Odoi v. Hammond  1 GLR 375, the Court of Appeal held per Azu Crabbe J.A.: “For a stool or family to succeed in all action for a declaration of title it must prove its method of acquisition conclusively, either by traditional evidence, or by overt acts of ownership exercised in respect of the land in dispute.” It is not enough to state that a family has been on a land since time immemorial without telling the exact form of acquisition. In the case of Banga & Ors. v. Djanie & Anor. [1989-90] 1 GLR 510, it was held: “The actual method of acquisition remains a guarded secret. One is left to ruminate, whether ‘settled’ in the context above, denotes purchase, conquest or original occupation.” Since the grantor could not appear to testify to prove how his family has been in possession of the land, the attempt by the Plaintiff to cling unto possession will also fail. The Defendants at paragraph 4 of their Statement of Defence claimed that the land of the Plaintiff’s grantor, Asafoatse Adibor shares boundary with that of their grantor, Asafoatse Otibor. This means that the present litigation borders on boundary dispute between the two grantors of the parties.
The best way to determine the boundaries is by the preparation of a composite plan been drawn as acknowledged in the case of In the consolidated suits of Nene Narh Matti & 2 Others v. Osei Godwin Teye and Samuel Lamm Oyortey & 2 Others v. Osei Godwin Teye, Civil Appeal No. J4/13/2017, dated 22nd November, 2017, S.C. (Unreported). His Lordship Dotse JSC held: “It must be noted that, since Exhibit “CE1”, is the composite Plan, it is a very important document whose bearing on the case must be really incisive. This is because it is the Survey Plan which positions the lands as shown to the Court appointed surveyor by the parties during the survey as well as the super-impositioning of any site plans or land documents that they have in relation to court judgments as well as any overt acts of ownership and or trespass, shown to the surveyor during the survey if at all”. See also the case of Nii Kofi La Family v. A. G, Civil Appeal No. J4/37/2014, dated 28/05/15 S.C. at page 22 (Unreported), per Ansah JSC.
It appeared that the Court ordered one to be drawn in this case, but there is nothing on record to indicate that it was carried out. In the absence of a composite plan, the Plaintiff could still have called the boundary owners to confirm the boundaries of the land of the Plaintiff’s grantor or use landmarks to describe his land. In the case of Assafuah v. Arhin Davis [2013-2014] 2 SCGLR 1459, it was held at holding 1 that: “In the absence of verifiable scientific-survey plans, overt acts of physical features like anthills, cemeteries, old settlements, sacred grooves, streams, rivers and other features have always been accepted and used to indicate boundary features between two adjoining lands”.
Similarly, in the case of Mensah v. Komfo  91 GMJ 39, the Court of Appeal, per Barbara Ackah-Yensu J.A. held at page 56: “It is common knowledge that one of the main methods of establishing boundaries is calling boundary owners as witnesses.”
In the case of Bogolo v. Aliebo [1982-83] GLR 1170, where the defendant also claimed title to the land, it was held at holding 2 of the headnotes: “… the plaintiff had to call corroborative evidence in proof of his title to the land otherwise he would fail… The trial court was therefore right in holding that the plaintiff's failure to call the remaining three adjoining landowners, amounted to failure to prove the boundaries of the disputed land. Having failed to call, inter alia, the three adjoining landowners, meant a serious lack or absence of evidence showing the extent of his land in the area and to show satisfactorily that his land included the very land in dispute. It was right for the trial court, in the absence of the evidence of the adjoining landowners, to have found the plaintiff's evidence unsatisfactory …”.
I am startled that the Plaintiff failed to call his grantor or any member of his grantor’s family to testify in Court. If his grantor knew the land was theirs, the Plaintiff should not have struggled to call him or any member of his family as a witness when it mattered. After all, our elders say that even in a dark room, a man is always able to find his way to his wife’s breast. Since it is the Plaintiff’s case that his grantor’s family has been in possession of the land in dispute, they should have appeared to give evidence. This is so because the Plaintiff is not a member of the Abonse Adibor family of Doryumu and was not well positioned in law to give traditional evidence of one’s family.
In the case of Dotwaah and Anor. v. Afriyie (1965) GLR 257, the Supreme Court held at holding (2) thus: “For evidence of tradition to be admissible, the witness who deposes to it must be a person who has a right to be told, and a duty to know the tradition or the history, and none other, however intimate and close that other may be to the deceased member of the family who might have related the tradition to him…. A member of a clan may therefore give evidence as to the tradition of any family within the clan.”
Also, in the case of Ababio v. Gyanfi and Others (1962) 1 GLR 428, the Supreme Court held at holding (4): “the evidence of the Omanhene of Apimanim was clearly admissible since he belongs to the class of persons such as stool office-holders who are competent to give traditional evidence of their respective stool: Ofuman v. Nchiraa and Branam Stools (1957) 2 WALR 229 cited. Also, he is deemed to know the boundaries of his state and as a boundary owner he is eligible to give traditional evidence as to how his ancestors and neighbouring owners acquired their lands: Kuma v. Kuma (1938) 5 WACA 4 cited.” See also the case of
Tsome v. Gale (1961) GLR 692, per Pempeh J. and Ebusuapanyin James Boye Ferguson v. I.K. Mbeah & 2 Others  DLSC 160, per Appau JSC.
In the light of the above analysis, it is my view that the Plaintiff has not been able to establish his title in the land being contested in this Court.
Whether or not the Plaintiff is entitled to his claims?
Counsel for the Plaintiff rightly pointed out in his written address that “in claims for declaration of title to land or for recovery of possession of land, the Plaintiff is obliged to adduce evidence to establish his claim, even if the Defendant did not appear to contest the matter”. He went on to refer to some English cases and submitted that the complete failure to cross examine on a material fact under the English law implies acceptance or admission of the evidence. The English law does not seem to be different from our laws. Anin Yeboah JSC in the case of In Re Presidential Election Petition: Akufo-Addo & 2 Ors. (No. 4) v. Mahama & 2 Ors. (No. 4)  SCGLR (Special Edition) 73 at page 425 decided: “I accept the proposition of law that when evidence led against a party is unchallenged under cross-examination, the court is bound to accept that evidence.” In the case of Ashanti Gold Co. Ltd. v. Westchester Resources Ltd. (2013) 56 GMJ 84 at page 128, Korbieh J.A. also decided: “The law is that where the evidence of a witness is unchallenged in cross examination, it is deemed to have been admitted by the other side.” See also the cases of Takoradi Flour Mills v. Samir Faris [2005-2006] SCGLR 882 at page 890; Amontia IV v. Akortia Oworsika [2001-2006] SCGLR 637 and Fori v. Ayirebi (1966) GLR 627, S.C.
I should however add that the principle is not an intractable rule under both the English law and Ghanaian law. It is stated in Phipson on Evidence (15th ed), published by Sweet & Maxwell, paragraph 11-26 at page 254 that: “Failure to cross-examine will not, however, always amount to acceptance of the witness’ testimony, for example if the witness has had notice to the contrary beforehand, or the story itself is of an incredible or romancing character.” A myriad of Ghanaian authorities where the exception has been underscored include the cases of Ladi v. Giwah and Another [2013-2015] 1 GLR 54, S.C.; Dzaisu v. Ghana Breweries Ltd. [2007-2008] SCGLR 539 and Mabel Osei v. Stephen Boateng  99 GMJ 162 at page 168, C.A.
I believe that before the principle that failure to cross-examine amounts to an admission would apply, the Plaintiff must have led satisfactory evidence to establish his case. Otherwise, the burden may not shift to the Defendants. Adade JSC in the case of Nartey v. Mechanical Lloyds Assembly Plant Ltd. (1987) 2 GLR 314 decided at page 344: “A person who comes to Court, no matter what the claim is must be able to make a case for the court to consider otherwise he fails. But that is not to say that having succeeded in establishing some case he cannot take advantage of conflicts, admissions and other weaknesses in the defendant’s case”.
Also, in the case of Edith v. Keelson  37 MLRG 127 at pages 176-177, their Lordships held: “If the plaintiff in a civil suit, fails to discharge the onus on him and thus completely fails to make a case for the claim for which he seeks relief, then he cannot rely on the weakness in the defendant’s case to ask for relief. If however, he makes a case which would entitle him to relief if the defendant offers no evidence, then if the case offered by the defendant when he does give evidence discloses any weakness which tends to support the plaintiff’s claim, then in such a situation the plaintiff is entitled to rely on the weakness of the defendant’s case to strengthen his case”. See Odametey v. Clucuh & Anor. [1989-90] 1 GLR 14 at 28, per Taylor JSC.
The burden to be established by a Plaintiff under the law is double-edged. Akamba JA (As he then was) in the case of Kwaku Mensah Gyan & I Or. V. Madam Mary Armah Amangala Buzuma & 4 Ors. (Unreported) Suit No. LS: 794/92 dated 11th March, 2005 explained: “What is required is credible evidence which must satisfy the two fold burdens stipulated by our rules of evidence, N.R.C.D. 323. The first is a burden to produce the required evidence and the second, that of persuasion. Section 10 & 11 of N.R.C.D. 323 are the relevant section … This burden is not met merely by tendering the exhibit G in evidence with all its ambiguities, lingering doubts and lack of explanation.”
Since the Plaintiff could not lead credible and satisfactory evidence in this case to establish his title and the trespass complained of, it seems to me that the Defendants’ failure to appear in Court to cross examine the Plaintiff is of no moment. I cannot bow to the doubtful and insufficient evidence of the Plaintiff to grant the reliefs he is seeking from this Court when it is obvious that he has been unable to make a case for the Court to consider.
As I end this judgment, I advise parties and their counsel to always endeavor to take their time in proving their cases in Court so as to meet the requisite burden on them when their claims are for declaratory reliefs and even when their adversaries do not attend the trial. In the words of Austin O’mallay, if you handle the truth carelessly, it will cut your fingers. Consequently, I dismiss the claims of the Plaintiff in limine.
ALEXANDER OSEI TUTU J
(JUSTICE OF THE HIGH COURT)