TEMA - A.D 2016

DATE:  19TH JULY, 2016
SUIT NO:  E1/21/2009

On 29th October 2008, the plaintiff caused her lawyer Yaw Asare Darko to issue a writ against the defendants for the following reliefs:

a. Declaration of title to all that piece and parcel of land situate at Baatsonaa, Accra and described as land containing an approximate area of 0.32 acres and bounded on the East by lessor’s land measuring 100 ft. more or less, on the West by lessor’s land measuring 100 ft. more or less, on the North by proposed road measuring 140 ft. more or less and on the South by lessor’s land measuring 140 ft. more or less.

b. An order for recovery of possession of the disputed parcel of land.

c. Damages for trespass.

d. Perpetual injunction

e. Any other equitable or other relief as shall be deemed fit and just.


In her 12-paragraphed statement of claim, the plaintiff describes herself as a retired banker and the beneficial owner entitled to the land in dispute. She claimed to have acquired the land under a Deed of Conveyance dated 20th December, 2000 from Numo Borketey Laweh (Gborbu Wulomo) and Nii Bortrabi Obroni II (Mankralo and acting Nungua Mantse) for and on behalf of the Nungua Stool, for a term of 99 years commencing from the 9th day of December, 2000. Plaintiff was introduced to her grantors by the first defendant who acted as a witness at all material times, for which reason he was privy to the whole transaction between the plaintiff and the grantors. After the lease, plaintiff presented for registration at the Lands Commission, her documents. Plaintiff took possession of the land by clearing it in preparation of her developmental projects, before the defendants trespassed on it and started laying adverse claim. Defendants have since developed the land at a meteoric pace. It is plaintiff’s case that the defendants have no title and are therefore estopped from denying her title to the disputed land.


In her reply to the defendants’ statement of defence, plaintiff explained that she purchased her land through her agent, Paapa who dealt with the first defendant on her behalf. The first defendant on his part denied ever meeting the plaintiff. He conceded that Paapa purchased five (5) plots; three for Mr. Adu Asare and Mrs. Addai and two for a person whose identity he did not know. He however suspected the unknown purchaser to be the plaintiff. He contended that Paapa later returned to collect the money paid on behalf of the plaintiff. He alleged that the plaintiff had expressed her disinterest in the land due to the undeveloped nature of the location. According to the first defendant, he, together with his two brothers by names; Abraham Adjin and Alabi Teiman (hereinafter called the 3 brothers/siblings), acquired a freehold of 24. 759 acre-land from the Nungua Stool, per Numo Borketey Laweh (Gborbu Wulome) and Nii Bortrabi Oburoni II (Mankrolo and acting Nungua Mantse) in 1994. The three brothers proceeded to register the land at the Land Title Registry, Accra and Certificate Number GA 6038 dated 31st August, 1994 was issued to them. The three siblings have since shared their respective portions of the land, though they hold a common document.


Second defendant is also a purchaser from Teiman Alabi, one of the three brothers of the first defendant. She purchased her land on 4th March, 2000 and thereafter, started the registration process. She eventually received her Land Title Certificate in 2010. It is her case that she immediately moved into possession after the purchase and put up a fence wall and a two-storey dwelling house on the land. The second defendant was initially not a party. Her husband was sued, but his name was struck out after the second defendant had been joined to the suit. The court ordered a composite plan to be drawn by the Regional Survey and Mapping Division of the Lands Commission. This was duly complied with and an officer from the office by name Joseph Quartey, did appear in court to tender his report. Lawyers of the parties had the opportunity to cross-examine him when he came. The plaintiff called three witnesses in support of her case. Her main witness Macmillan William Myles a.k.a. Paapa was called as PW1. He testified as the agent of the plaintiff who dealt with the first defendant on her behalf. Mr. Mark Ofori Kwafo was PW2. He claimed to have been directed by the first defendant to prepare the site plans for prospective purchasers. He did confirm that the plaintiff met the first defendant in his office at TMA together with PW1, PW3 and other purchasers. Jacob Adu Asare a.k.a. Barima Adu Asare Bosompem III was one of the purchasers of the first defendant’s land. He appeared in court to testify for the plaintiff as PW3.


First defendant testified without calling a witness. The second defendant also testified and called her grantor, Teiman Alabi in support of her case. It is worth emphasizing here that the parties, apart from the first defendant, are bankers (The plaintiff is however on retirement).


Both bankers paid monies for portions of the land belonging to the three brothers. The defendants did not contest the suit by the same lawyer. The first defendant initially engaged lawyer Senanu and later, a former Attorney General and Minister of Justice, Honourable Nii Ayikoi Otoo as his counsel. The second defendant also defended the suit by an experienced counsel, Samuel Kodjoe. None of the defendants added a counterclaim to their Statement of Defence.


After the close of pleadings, all the issues contained in the Application for Direction and the Additional Issues were accepted by the court and set down for trial. Whereas issues (a) to (f) below were raised by the counsel for the plaintiff, issues (g) and (h) were those raised by counsel for the first defendant. The issues were:

a. Whether or not the first defendant agreed to assign the disputed plots of land to the plaintiffs?

b. Whether or not the first defendant gave the plaintiff any site plan and other documents evidencing the transaction.

c. Whether or not the first defendant later arranged with the Nungua Stool to prepare a Deed of Conveyance in the name of the plaintiff in respect of the disputed plots of land.

d. Whether or not the disputed plots of land were subsequently plotted in the name of the plaintiff.

e. Whether or not at the time of the said plotting there were any buildings or other structures on the disputed land.

f. Whether or not the defendants have committed acts of trespass on the plaintiff’s land.

g. Whether or not the first defendant herein has ever authorized anybody to convey his parcel of land in dispute to the plaintiff herein.

h. Whether or not the first defendant, having fully completed the three-bedroom house with a garage on the parcel of land in dispute, has by himself and/or his servants or agents been in actual occupation of the said property from 1994 to date.


It does appear that most of the issues raised by the plaintiff’s counsel overlapped and I am not surprise he chose to treat the first three issues together in his written address to the court. I am sure my work would be made easier if I concentrate more on the validity or otherwise of the actual interests and titles of the parties in the land. But in order not to sweep them under the carpet, I will endeavor to discuss some of the issues raised before tackling the main ones at the appropriate time.


I agree with most of the facts counsel for the first defendant in his address postulated as undisputed, particularly the underlisted:

a. That the land in dispute forms part of the 24.759 acre-land acquired by the first defendant and her two brothers.

b. That, that large tract of land is covered by a land certificate.

c. That Mr. Macmillan William Myles a.k.a. Paapa bought two plots of land from the first defendant for the plaintiff.d. That PW3 and Theresa Addai also bought other plots from first defendant through the said Paapa.


I also find that:

e. The plaintiff and the second defendant purchased their lands from the first defendant and D2W1 respectively.

f. Whereas the D2 transacted by herself, the plaintiff made use of PW1 as her agent in the sale and

g. Finally, the first defendant and his three brothers have a freehold interest in the land in dispute.


I will begin by first addressing issue (c).


At this stage, there is no dispute about the fact that the plaintiff paid monies for two plots through Paapa to the first defendant. Plaintiff relies mainly on a Deed of Conveyance prepared by Numo Borketey Laweh (Gborbu Wulomo) and Nii Bortrabi Oburoni II (Mankralo and acting Nungua Mantse) on behalf of the Nungua Stool dated 20 th December, 2000 as the basis of her title to the 0.32 acres, being the land in dispute. She tendered in evidence, Exhibit ‘D’ in support of her case. It unfolded during the trial that the land in dispute formed part of the 24.759 acre-land acquired by the three brothers from the Nungua Stool. This land was registered in their collective name at the

Land Title Registry on 31st August 1994. The plaintiff claimed to be unaware of the fact that the land belonged to the three brothers at the time of her acquisition. She was emphatic that she purchased the land through PW1, Paapa.


PW1, on his part at page 54 of the proceedings told the court in no ambiguous terms that he was in the known that the land belonged to the three brothers at the time of purchase. This is the discourse that ensued when he was being cross-examined by counsel for the defendant

Q: You concede that the first defendant and his brothers have a land title certificate in respect of the entire land.

A: Yes my lord.”


The knowledge held by Paapa is significant because as an agent for the Plaintiff, the information he had would be imputed to his principal, the plaintiff. I do not even think that the plaintiff was not aware the land was for the three brothers. At page 2 of the proceedings, when she gave her evidence in chief, she stated:


“First defendant gave a land certificate to Paapa to show it to me and because I had seen the land certificate and was satisfied, I gave money to Paapa to buy two plots for me.”


Apart from the land certificate held by the three brothers over the land, there is no other. Which land certificate other than the one bearing the names of the three brothers is plaintiff referring to? She could not tell the court nor describe how it was. Her counsel initially wanted to tender the said land certificate as exhibit, but ended up withdrawing it. The law is that if a party makes reference to a document, but fails to tender it in evidence, the inference is that such a document never existed or if it did, it contained not the averments it was supposed to contain. See the case of Bousiako Co. Ltd. v. Cocoa Marketing Board [1982-83] 2 GLR 824 @ 829.


When the entire evidence and pleadings are put together, the irresistible conclusion one can draw from the plaintiff’s evidence is that she approbates and reprobates at the same time regarding having knowledge that the land belonged to the three brothers and not only the first defendant. I say so, as I begin to refer to paragraph 10 of the reply filed by the plaintiff on 1st December, 2008. At that paragraph, plaintiff created the impression that she never got to know at the time of purchasing the land that it was in the names of the three brothers. The paragraph reads:

In further response, the plaintiff avers that a search conducted at the Lands Commission did not disclose recorded transactions in the name of the first defendant’s siblings in respect of the disputed land. Neither were their alleged interests plotted out in any of the records at the Lands Commission.”


However at paragraph 4 of the Reply to the second defendant’s Statement of Defence, she averred:


At all material times, the Plaintiff was led to believe that the afore-said transaction was with the consent and concurrence of the first defendant’s other siblings, whose signatures indeed appeared on some of the documents issued to the plaintiff in connection with the afore-mentioned transaction.”


Also at page 2 of the proceedings, plaintiff in her evidence in chief said:


I sent the Site Plan to the Land Title Registry to go and register it. I bought a form there, filled my portion and the first defendant and his two brothers also filled their portions and signed.”


Further, under cross-examination she unambiguously admitted at page 8 of the proceedings. It went as follows:

“Q: You know first defendant and his siblings hold a land certificate over a land including the one you wanted to buy?

A: Correct.

Q. The Certificate was shown to Paapa and Paapa told you?

A. Correct”


Again at page 14 of the Record of Proceedings, she answered to a question posed to her by the first defendant’s counsel as follows:

“Q: I am putting it to you that Warzar (i.e. first defendant) had a Land Title which you saw and he was going to give a document from his land title and not from any chief.

A: He made it known to me that the land was for him and his brothers …”


In one breadth, plaintiff never got to know that the other siblings had a stake in the land. In another breadth, she was made to believe at all material times (my emphasis) that the other siblings were involved in the sale of the land to her. Is that not contradictory? The contradiction in the plaintiff’s case was not limited to only the above. In her Statement of Claim, she attributed her grantors to the Nungua Stool and the first defendant was mentioned as a witness.


In her Reply, she changed her position to say that the first defendant is rather her grantor. Her pleadings suggest she is putting up two separate and inconsistent cases.


The Rules of pleadings do not allow a party to depart from her earlier pleadings. Order 11 rule 10 of the High Court Civil Procedure Rules, 2004 (C.I. 47) provides:

“(1) A party shall not (the emphasis is mine) in any pleadings make any allegation of fact or raise any new ground or claim, inconsistent with a previous pleadings made by the party.

(2) Subrule 1 shall not be taken as limiting the right of a party to amend or apply for leave to amend previous pleading of the party in order to plead allegations or claims in the alternative”


It is clear from the above provisions that what would have saved the plaintiff from putting up two different cases was to have amended her Statement of Claim to conform to her Reply and evidence adduced.


Moving on, the Plaintiff did say that it was the first defendant who went to the Nungua Stool to prepare the Exhibit ‘D’ for her. The defendants denied and even challenged the validity of Exhibit ‘D’. It befell on the plaintiff to adduce evidence to prove the assertion. Plaintiff could not provide any such evidence apart from the bare assertion. Granted it was the first defendant at all who went to the Nungua Stool to have the exhibit ‘D’ prepared, it would still not add anything positively to the plaintiff’s case. It would rather show how careless the plaintiff and her agent were. Paapa, knowing very well that the land had been conveyed by the Stool in 1994 to the three brothers, why did he accept an indenture from the very Stool without asking questions? The grant by the stool to the three brothers has its own issues and I will discuss it later in this judgment. If the Stool indeed sold its interest (freehold) to the three brothers, the stool had nothing again to do with the land. This is just common sense. One cannot eat his cake and have it. In the case of Boateng v. Manu [2008-2009] 1 GLR 639, it was held at holding 4 that a stool had no right to grant land of the stool already occupied by an individual. Also in the case of Hydraform Estates Ltd. v. Kumnipah & Agyemeng [2014] 70 G.M.J. 48 @ 57, it was held that the Teshie Stool had no right of its own to validly alienate lands not belonging to the Teshie Stool, but the quarters. See Salomey Shorme Tetteh & Nii Amon Tafo v. Mary Korkor Hayford Substituted By Stella Larbi & Comfort Decker; Civil Appeal No:

J4/34/2, dated 22nd February, 2012 (Unreported)


Under Customary law, an effective Conveyance of land divested the grantor of any further

title or interest in  the  land.  Holding 2 of the headnotes of Sarkodie v. FKA Co.

Ltd. 65, SC reads: “An effective customary conveyance of land would divest the grantor of any further right, title or interest in the land; the same could therefore not be conveyed or granted to a subsequent grantee.”


Paapa is indeed not an expert in land acquisition and neither is he a lawyer, but that does not change the position of the law. Land purchasers who do not want future troubles do not act without obtaining expert advice. Paapa is an HND Holder in Civil Engineering. At page 56 of the Record of Proceedings, he conceded under cross-examination thus:

“Q: So are you also well-versed in land acquisition?

A: No, my Lord.”


If the plaintiff chose to use an inexperienced person to act for her, does she now deserve our sympathy? I will say a big no to that. She should have herself to blame. In the words of a Czeck and French writer, Milan Kundera in his Laughable Loves, “A man is responsible for his ignorance.” Her own counsel beautifully espoused the law in his written address to the court. He was however not charitable at all with the second defendant, but he had forgotten that his client was the worst culprit. He failed to remove the beam in his client’s eyes but saw a mote in that of the second defendant. Let me here refer to the case of Kusi & Kusi v. Bonsu [2010] SCGLR 60 @ holding 9, which counsel relied on to support his argument “Any person desirous of acquiring property ought to properly investigate the root of title of his vendor. In the instant case, there was no evidence of such prudent search conducted by the defendants. In their own pleadings they had asserted that they only inspected the title deeds of the assignor coupled with the permit for construction and were satisfied. The record did not show that they even sought professional advice before entering into the transaction. In the view of the majority of the court, the steps they claimed they took were not adequate steps of a prudent purchaser of that particular property.”


Indeed, when it comes to the sale of land, unless the buyer acted diligently and with the services of an expert, she receives no pity from the court should unexpected events begin to rear their ugly heads relative to the land purchased. Plaintiff claimed to have conducted a search, but that too appears not to be the case. The Search was allegedly conducted at the Lands Commission. Which Department of the Lands Commission, she could not tell. There is no indication that it was done at the Lands Title Registry. Under section 56 of the Land Title Registration Act, 1986 (PNDCL 152), searches concerning registered lands are to be made from the Land Registrar. At page 22 of the proceedings, she said she did not know which office she allegedly conducted the search, because she is a layperson. Do we take her seriously on her purported search? I do not think so!


Besides, the genuineness of exhibit ‘D’ was put to question. At the time it was allegedly prepared, the acting Nungua Mantse, Nii Bortrabi II had renounced his citizenship of this our corporal world and had ‘naturalized’ in the City of the silent majority.


Defendants tendered the Obituary Notice and the 10th Anniversary Memorial and

Thanksgiving Brochure in support of their case as exhibits. The Brochure and Obituary Notice appear genuine. In any event, the plaintiff could not puncture their authenticity and I have no good reason not to believe them. It was incumbent on the plaintiff to adduce evidence to refute it, but she woefully could not, despite the fact that she faced a herculean task to prove that a document she was attributing to a deceased person raised eyebrows and demanded of her ‘a high burden of proof’. In the case of Kwame Bonsu and Others v. Kwame Kusi and Gifty Kusi Ampofowaa (2010) 26 GMJ 20 SC; [2008-09] 2 GLR 316, Baffoe Bonnie JSC held at holding 2 thus: “Judges have to look with suspicious when claims are made against deceased persons”. The authorities are endless. See Ofori v. Star Assurance Co. Ltd. [2015] 83 GMJ 94 @ 100; Ofori Agyekum v. Agartha Amoah, Civil Appeal No. J4/59/2014, dated 13th April, 2016, SC (Unreported), per Benin JSC; Osei (substituted by Giliard v. Korang [2013-14] 1 SCGLR 221 @ 229, Per Ansah JSC


I will not dispose of this issue without having touched on the non-compliance of the law in respect of land allegedly acquired from the Nungua Stool. It is the law that any stool land alienated for valuable consideration must have the concurrence of the Regional Lands Commission. See section 8 of the Administration of Lands Act, 1962 (Act 123). Article 267 (3) of the Constitution also provides:


There shall be no disposition or development of any stool lands unless the Regional Lands Commission of the region in which the land is situate has certified that the disposition or development is consistent with the development plan drawn up or approved by the planning authority for the area concerned.”


There is nothing on record to show that with the alienation of Exhibit ‘D” being a stool land, the concurrence of the Greater Accra Regional Lands Commission was sought. The law does not end there. The further consent and concurrence of the Traditional Council which that particular stool belongs to, is required, otherwise the transaction becomes voidable. See Section 45 of the Chieftaincy Act, 2008 (Act 759). This should lead no one into confusion. A Traditional Council is not synonymous with a paramount chief. A traditional Council is rather made up of all the chiefs in the Traditional Area including all the Paramount Chiefs, Divisional, Sub-Divisional and such other Chiefs recognized by the National House of Chiefs. On this see page 23 of Dennis Adjei’s Book on Land Law. The Plaintiff’s exhibit ‘D’ again does not have the consent and concurrence of the Traditional Council to which Nungua Stool belongs. Counsel for Plaintiff may argue that the document concerned (i.e. exhibit ‘D’) is dated in 2000, but the Act 759 came into force in 2008, so the provision does not apply. To some extent he might be right, but in the year 2000, the applicable Chieftaincy Act, 1971 (Act 370) also had a similar provision under section 37.


All the pieces put together, I find that:

a. The Nungua Stool did not grant any land to the plaintiff.

b. The Deed of Conveyance (exhibit ‘D’) was not prepared by the said Stool.

c. The Conveyance is not only forged, but invalid.


Having dealt with the first issue, I think the next major issue is issue (g).


I will widen the scope and raise the issue whether the first defendant or his authorized agent conveyed the 0.32 acre land to the plaintiff. It has already been admitted by counsel for the first defendant and found out by the court that the first defendant collected the sum of ¢17.8 million old cedis from plaintiff through Paapa. It was the case of the plaintiff and even PW1 that Mr. Mark Ofori Kwafo, PW2 acted as the agent of the first defendant and he used to direct one Lamptey, to go and show them the land. Pw3 worsened the case when he said that it was Mr. Kwafo personally who went with him and the plaintiff to show them their respective lands. Mr. Kwafo was found to be a worker at Tema Municipal Assembly (T.M.A.) as their Development Control Officer and acting Municipal Engineer. The question which begs asking is; was Mr. Kwafo the agent of the first defendant with responsibility to demarcate the land for the plaintiff? I am afraid my answer is in the negative. We were fortunate to have Mr. Kwafo to appear in court, at the instance of the plaintiff to tell the court his exact role in the transaction. Without mincing words, he stated that he was tasked by the first defendant to prepare site plans for persons who he sold portions of the land to (See pages 66 & 67 of the proceedings). At page 67 of the proceedings the cross examination went like this.

Q: What did you do regarding the transaction Paapa [people] brought to buy the land?

A: We will prepare site pans.

Q: Apart from preparing site plans did you do anything else?

A: My role was limited to preparing site plans.”


This role of only preparing site plans for First Defendant came as a big surprise to PW3 at page 78 of the Record. At page 70 of the proceedings, Mr. Kwafo clarified the purpose why he sent his men to the site to take measurement, he claimed it was for purposes of preparing the site plans.


He also explained that before he prepared the site plans for the purchasers, the first Defendant would have sold the land to them already and the purchasers would only go to him for the site plans. I do not think the mandate to prepare site plans extended to demarcating lands for prospective purchasers without the first defendant’s knowledge. Put differently, being commissioned to prepare site plans did not mean the person was at liberty to demarcate the land. If PW2 got involved in the demarcation of the land, that was an enterprise he had taken on beyond his own terms of reference. His evidence suggested that it was one thing preparing the site plans and another thing demarcating the land for the prospective purchasers. PW2 could not tell whether he was the one who prepared the site plans of the plaintiff. He claimed to have prepared over 5,000 of them and cannot with all certainty identify those he prepared. He admitted the possibility that he might have prepared the site plan of the plaintiff. It is funny that the plaintiff herself did not know who prepared her Site Plan. At page 10 of the proceedings under cross-examination she answered to a question:

Q: Do you know who prepared the Site Plan?

A: No, I do not”


Three different Site Plans were tendered. One measured 100” ×70” feet, another 100” ×140” feet and the third was 140” × 90” feet. She was clueless when asked to explain. Plaintiff admitted under cross-examination that the first Defendant a.k.a. Wazaar never showed her any site nor hand any Site Plan to her. What makes her case even untenable is that, she chose which of the three site plans is favourable to her to prepare her documents. On this I refer to her answer under cross-examination at page 18 of the record.

Q: If Warzar did not show you any Site Plan or land that was given to you and you got these three Site Plans, were they brought to you by Paapa?

A: Yes, my lord.

Q. And you have admitted that there are mistakes or there was a mistake in the site plans therefore you discarded some and took the ones which was acceptable to you. Is that not true?

A: Yes my lord.”


O how we are always prone to interpret everything and even the law to suit our own cause. Joseph Story, the American lawyer who served in the US Supreme Court from 1811-1845 amazingly made the point: “How easily men satisfy themselves that the Constitution is exactly what they wish it to be.”


Counsel again asked at the same page.

Q. You did not see Warzaar and he gave you these site plans and I am saying that these site plans were not accurate?

A: I do not know whether it was accurate or not.”


PW1, Paapa also at page 59 of the Proceedings, when confronted with the discrepancies in the site plans, could only say it was a mistake.

“Q: Now the site plan you have in this form is 140” × 100” feet; is that not correct?

A: It is 140 feet. It might be mistake in the arrangement.”


Can the plaintiff and her purported expert be considered serious purchasers of land? The site plans were allegedly by prepared different persons including, by D.W.K. Agator, R.M.A. Osekre. Nothing is known about these persons. The three Site plans did not have the blessings of the Regional Survey Department and their validity is put in issue. At page 20, plaintiff answered thus under cross-examination.

“Q: Was the Survey Department included in the inspection?

A: My Lord, I have no idea.

Q. So what you are telling the court is that the three Site Plans prepared by different surveyors, the Survey Department did not see them?

A: No, my Lord.”


The point is that because PW2 was not expressly tasked to demarcate the land for the plaintiff and the other purchasers, apart from preparing site plans, any purported demarcation by him becomes questionable, if not invalid. Sections 1 & 2 of the Conveyancing Decree, 1973 (NRCD 175) require the transfer of an interest in land to be in writing before it can be enforced. An unwritten Conveyance can only be enforced where it comes under any of the exceptions stated under section 3 of the Act. There was no such written document between the first Defendant and the Plaintiff. In the absence of such a written agreement, a lease which was intended to last for 99 years could not be valid. It was held by the Supreme Court in Kofi Sarpong (Dec’d) (Substituted by) Nana Kwasi Koduah v. Franklin Adubobi Jantuah; Civil Appeal No. J4/15/2015, dated 17th February, 2016 (Unreported) at p.7 that “the law should be applied strictly here as the plaintiff’s only route of ownership is the purported sub-lease from Madam Afua Addai which is non-existent. And the law as stated earlier, does not recognize verbal agreements beyond three years.” Benin JSC again decided “. . . Thus, the law as stated in sections 1, 2 and 3 (1) (f) of the Conveyancing Decree, 1973, NRCD 175 required any such lease to be evidenced in writing else, it is ineffective to convey any title. Therefore the plaintiff who has no such agreement . . . could not claim to be the owner in possession . . . The plaintiff could not act in violation of the law and ask a court of equity to come to his aid.’ For the law does not recognize, let alone give effect to lease of 28 or 21 years which is not backed by any writing.”


Similarly, where the landowner is acting per an agent, the law enjoins him to be appointed expressly in writing. Section 1 of NRCD 175 reads:


“(1) A transfer of an interest in land shall be by writing signed by the person making the transfer or by his agent duly authorized in writing, unless relieved against the need for such a writing by the provisions of section 3”


Unlike agents appointed in contract of Sale of Goods, those appointed to convey land must be in writing. Dennis Adjei in his Book, Land Law, Practice and Conveyancing in Ghana at page 61 distinguishes between the two as follows:


The Act enjoins the appointment of the authorized agent of the transferor to be in writing. The difference in the appointment of an authorized agent of the parties in a conveyance as compared to a contract of sale is important because a transferor’s authorized agent who is not appointed in writing cannot confer title on the transferee.”


It is clear from all the evidence adduced that Mr. Kwafo was not appointed in writing by the first defendant. I therefore find that he did not have the lawful mandate of the first defendant to demarcate any land for the plaintiff and that if he did, it is of no consequence. There is nothing on record to show that apart from Mr. Kwafo, the first defendant personally demarcated the land for the plaintiff. There is also nothing on record to show that the first defendant caused another person other than Mr. Kwafo by whom he lawfully appointed in writing to demarcate the land for the plaintiff.


In any event, the transaction was not completed to the extent that it was not reduced into writing between the plaintiff and the first defendant as required by law. In Oppong v. Anarfi [2010] 1 GLR 159, S.C and Donkor v. Alhassan [1987-88] 2 GLR 253 @ 256, it was held that receipts per se are not instruments of transfer in land. Further, it is not just any document that has to be transferred to the purchaser, but documents capable of conveying title to the land. In Kama Health Services Ltd. v. Unilever Gh. Ltd. [2013] 65 GMJ 1 @ 27, the Supreme Court decided:Transfer of title is not merely handing over any documents to the purchaser, but documents that enable the purchaser to secure the legal title. The plaintiff had none and therefore he had no basis to presume ownership and moreover when he is not in possession of the disputed property.”


In the absence of specific alienation, demarcation or a valid conveyance of the land to the plaintiff coupled with the lack of relevant documents, I hold that the 0.32 acre-land in dispute was not conveyed to the plaintiff.



It was the case of the plaintiff that the land was plotted in her name after her acquisition. Having already found that the land was not properly conveyed to her, any purported plotting in her name is of no effect. She only acted under a mistaken belief, which by itself conferred no title on her.




It is trite learning that the plaintiff in land litigation has the onus of proving his case and this principle is not familiar to only Ghana, but other common law jurisdictions. In the case of Lasisi Aremu v. Alhaji Lawal Adetoro, SC 418/2001, the Nigerian Supreme Court held: “… it is the law that the plaintiff in an action for declaration of title must succeed on the strength of his case and not on the weakness of the defence, though in an appropriate cases where the defence supports that of the plaintiff, the plaintiff is entitled to rely on such evidence in support of his case to prove his case”.


Similarly, in the case of Union of India & Ors. v. Vasavi Co-op Housing Society Ltd. & Ors. [Civil App. No. 4702 of 2004], K.S. Radhakrishan J. decided at Para 12: “It is trite law that, in a suit for declaration of title, the burden always lies on the plaintiff to make out and to establish a clear case for granting such a declaration and the weakness, if any, of the case set up by the defendants would not be a ground to grant a relief to the plaintiff.”


Back home, our Supreme Court in Dowuona II v. Olewolon [2006] 7 MLRG 154 @ 168 also held per Aninakwah JSC as follows: “It is trite learning, plaintiff seeking title, the onus rests upon him to prove his case.” See also Barker-Wood v. Nana Fitz [2007] SCGLR 879, S.C.


Ownership of land may be proved by a document, series of document or by clear evidence of possession. In Nsowaa & 2 Others v. Bamba & Another [2015] 86 GMJ 21 @ 24, the Court of Appeal held as follows: “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.Barbara Ackah-Yensu JA also held in Deliman Co. Ltd. v. HFC Bank Ghana Ltd. [2016] 92 GMJ 1 @ 25: “A person’s title indicates by what means he claims to be owner of land. Title to land may take the form of possession or it may take the form of document or a series of document. See section 23 (5) of the Land Title Registration Law, 1986 (PNDCL 152).” Plaintiff has no title registered in her name. The Deed of Conveyance she tried to rely on to prove her case has been woefully battered and found not only as unreliable but also invalid.

Having faltered in putting up a document that can reasonably be construed as evidence of her title, the plaintiff’s only hope rested on her evidence of long undisturbed possession. She indeed pleaded possession, but I am afraid possession should not be bare. It must be substantiated by clear and cogent acts. The possession she hangs on to is premised on pillars she erected and her clearing of the land. It does not look too convincing. In terms of who has been in possession, the plaintiff does not have much to show. In fact, during cross-examination when she was being quizzed about her alleged possession of the land before she filed her writ in 2008, she could only posit that she left everything in the hands of her lawyer for him to deal with it (See page 11 of the record of proceedings). The plaintiff has virtually nothing on the land. Her evidence is that she is now getting herself ready to develop the land. This is opposed to her adversary, the second defendant who immediately after her purchase of the land in 2000 erected a fence wall and constructed a two-storey building. It is my humble view that the Plaintiff has fumbled in proving her title.



The other issues set down do not appear to add much to the determination of this case and I will abandon them. Already plaintiff’s claim to the land has been found to be very porous and weak. The defendants did not counterclaim and so they do not have much burden to discharge. They may have started jubilating, but they need to wait. I will touch on three main issues, which arise from the pleadings but were not set down at the direction stage. The taking of Directions does not close the door to raising crucial issues not set down, but are borne by the pleadings. It was held at holding 4 of Osei v. Kariyavoulous [1982-1983] GLR 658 that: “A court was not bound to consider issues within the orbit of the summons for directions or appearing on the pleadings. It was not only matters expressly set out in the summons for directions that ought to be determined by a court but all issues arising across the entire spectrum of the pleadings.” See also William Ashitey Armah v. Hydra foam Estates (Gh.) Ltd, Unreported, Civil App No. JA /33/ 2013, dated 28thMay, 2014.


It is the case of the first defendant that the plaintiff’s representative, Paapa approached him later to demand the ¢17.8 million old cedis and he returned to him. He just made a bare assertion, but if he had returned the money, it should not be difficult for him to prove it. He could have substantiated his assertion, just like the way he tendered documents in court to convince us that the Deed of Conveyance by the plaintiff was forged and that the acting Nungua Mantse was late at the time the document was allegedly executed. First defendant could have tendered receipt(s) to show that he had refunded the money to plaintiff through Paapa. He could not also tell when he did that and neither was he able to tell where and who else was present. His assertion was just lame and no court could be swayed to take him seriously. Proof in law requires substantiation. In the case of Majolagbi v. Larbi [1959] GLR 190, it was held that:


Proof in law is the establishment of facts by proper legal means. Where a party makes an averment capable of proof in some way e.g. by producing document, description of things, reference to other facts, instances, or circumstances, and his averment is denied, he does not prove it by merely going into the witness box and repeating that averment on oath, or having it repeated on oath by his witness. He proves it by producing other evidence and circumstances from which the court can be satisfied that what he avers is true.”


See also Marian Obeng Mintah v. Francis Ampenyin; Civil App. No. J4/18/2013, dated 25th March 2015, S.C. (Unreported), Akamba JSC

The first defendant in his entire evidence struggled with the truth. He was an apology of a witness. And the court cannot rely on the bare evidence of such a person, especially when he had failed to lead the minutest evidence to support his assertion. He even went to the extent of denying the very averments he had made on oath in his affidavit. He first started by denying knowing plaintiff but ended up conceding that he took her money. He also claimed, he had, by 1997 developed the land and constructed a house. That assertion too, he later denied. As if that was not all, he portrayed Paapa in his affidavit as a man of dubious character. Under cross-examination, he denied ever saying that. He might have realized that it was unreasonable for him to say that he did not trust Paapa, and yet failed to collect receipts from him when he allegedly refunded the plaintiff’s money to her.


Because he had lied indiscriminately from the beginning of the suit, he found it difficult reconciling his statements by the time he mounted the box. First Defendant ought to have known that it is really not a simple task to engage in the business of telling lies. Perhaps, he needs to ponder over these philosophical words of Confucius that: “The hardest thing of all is to find a black cat in a dark room, especially if there is no cat.”


He ingeniously put the blame at the doorstep of his previous lawyer that he had misrepresented the instructions given him. The court finds the blame on the old counsel as baseless. Even after engaging his new lawyer, he did not relent with his lies. In exhibit ‘L’ being a further supplementary affidavit, he claimed his new lawyer had advised him to depose to some facts and attach photographs to show that he had since 1994 been residing in the said property. He filed that affidavit on 12-04-11. He had by then engaged his new lawyer on 04-03-11. Is it not the very thing he denied under cross-examination? As Criss Jami once scribbled: “The truth exposes some people so deeply, their last defense is to front a carefree insanity.”


Further, would his current lawyer, as experienced as he is not have applied to amend his pleadings if what had been pleaded did not conform to his instructions? Granted the lawyers had pleaded otherwise, which is not even believed by the court, he should know that a person is bound by the pleadings of his lawyer. See Charles Lawrence Quist (substituted by Diana Quist v. Ahmed Danawi, Civil App. No. J4/63/2013, dated 29th July 2015 (Unreported), Per Baffoe Bonnie JSC and Warner v. Sampson 1959 QBD 297. In this context, the allegations concerned were not limited to only the pleadings, but also his affidavits. If pleadings which are signed by the parties’ lawyers can bind them, why can’t an affidavit deposed to by the person before a Commissioner for oaths? Let no man think I am not entitled to refer to the affidavits, which were for purposes of determining interlocutory matters, because it is the law that affidavits earlier used in the course of proceedings can still be referred to in making a determination on an issue. See Republic v. High Court (Financial Division) Accra, Ex parte Xenon Investment & Anor. Civil Appeal No. J5/46/2016, dated 22nd March, 2016, SC (Unreported), per Anin Yeboah JSC and in Barber v. Mackrell [1897] 12 Ch. D 534, the court did not hesitate to say that an affidavit, which is used in proceedings can later be relied on for other purposes, if relevant since it is a form of oath. In this case, the affidavits have even been tendered as exhibits.



This is purely a legal point. Neither the plaintiff nor the second defendant raised issue (s) concerning the validity of the title held by the first defendant and his three brothers. I have chosen to deal with it because it is a pure law and points of law can be raised suo motu. In Nana Kow Mensah King v. Opanin Kweku Kyikyiribi Gyan. Civil Appeal No J4/5/2015, dated 22 July 2015,

Unreported, the Supreme Court held:

It is trite learning that a court adjudicating any matter might raise a point of law on its own motion.”


The apex Court again held in Tindana (No 2) v. CDS & Ors (2011) 2 SC GLR 732;

It is trite learning that a court adjudicating any matter may raise a point of law on its own motion.See also

Empire Builders Ltd. v. Top King Enterprise Ltd. & 4 Others [2015] 84 GMJ 33 and Fosuah & Adu Poku v. Adu Poku Mensah (2009) SCGLR 310.


In Network Computer System Ltd. v. Intelsat Global Sales & Marketing Ltd [2012] 1 SCGLR 218; [2012] 41 G.M.J. 69 S.C., Atuguba JSC held at page 230: “A court cannot shut its eyes to the violation of statutes as long as that would be contrary to its raison d’etre. If a court can suo motu take up the question of illegality even on mere public policy grounds, I do not see how it can fail to take up illegality arising from statutory infraction which has duly come to its notice.”


In Republic v. High Court (Fast Track Division) Accra, Exparte Justin Pwavra Teriwajah Henry Nuertey Karboe & Reiss & Co (Ghana) Ltd. [2014] 68 G.M.J. 1, per Anin Yeboah JSC in like fashion held: “It is the duty of the court to interpret and enforce Acts of Parliament and not to help people violate them…” By upholding the principle in the case of Asare v. Brobbey [1971] 2 GLR 331, CA, Archer JA (as he then was) delivering the judgment of the Court of Appeal, said: “In Phillips v. Copping [1935] 1 KB 15 @ 21, CA Scrutton LJ said: ‘It is the duty of the Court when asked to give a judgment which is contrary to a statute to take the point although the litigants may not take it’ (The emphasis is mine).See also Republic v. High Court (Fast Track Division) Accra; Ex Parte National Lottery Authority (Ghana Lotto Operators Association & Others Interested Parties) [2009] SCGLR 390 @

The land granted to the three brothers (Davies, Bortieh, Abraham Adjin and Alabi Teiman) in 1994 was a 24. 759 acre land covered by Land Title Certificate Number GA 6038. It has the date as 31st August, 1994. This land Certificate was tendered by the defendants in evidence. At paragraphs 4 & 5 of the Statement of Defence filed on 18th November 2008 as well as paragraph 17 of the Amended Statement of Defence of Second Defendant filed on 11th April, 2016, pursuant to leave granted by the Court, the three brothers approached the Nungua Stool in 1994 and the land was eventually granted to them. The interest they obtained from the grant was a freehold interest.


Let me humbly say that since the coming into force of the 1992 Constitution, no Stool can lawfully convey a freehold interest in any stool land to any person or body of persons. Article 267 (5) of the 1992 Constitution provides:


Subject to the provisions of this Constitution, no interest in, or right over, any stool land in Ghana shall be created which vests in any person or body of persons a freehold interest howsoever described.”


BJ da Rocha and CHK Lodoh, both of Blessed Memory in their Book, Ghana Land Law and Conveyancing (Second Edition) at page 332 commenting on the above Constitutional provision noted:


The tenor of the above quoted provision in the 1992 Constitution is that not even members of a Stool or family, as from 7th January 1993 (i.e. the commencement date of the 1992 Constitution), acquires a freehold interest in any land in Ghana in which a stool or family holds the allodial title… the provision is however silent on the transfer of existing freehold interests in such lands. The deduction is that the transfer of freehold interests in existence before 7 January, 1993 is not prohibited by constitutional provision. It must, however, be pointed out that there is hardly any land in Ghana now in which a freehold interest can be created. If this assertion is correct, then the Constitutional provision quoted above appears to be otiose.”



These learned men created the impression that no freehold interest can now be created. I am sorry the vast knowledge they imparted to me when they were alive emboldens me to disagree with them. For citizens of Ghana, the prohibition in the Constitution is only in respect of alienation of stool lands. I do think the position held by the learned Court of Appeal Judge, Dennis Adjei JA at page 77 of his Book supra, is rather the true position of the law. He comments on the Constitutional provision as follows:


No freehold interest or right over any stool land in Ghana is to be created in any person or body of persons after the coming into force of the Constitution, 1992 unless the Constitution has provided otherwise. It is therefore forbidden to create any freehold interest or right over any stool land in either a citizen or non-citizen of Ghana. The law has excluded the creation of a freehold interest or right over any family or individual land in a citizen of Ghana.”

It presupposes that it is still possible for a freehold interest to be created in respect of land owned by an individual, family or corporate entity, because the restriction is in respect of Stool lands.


Be that as it may, it is beyond controversy the grant to the three brothers was by a stool (i.e. the Nungua Stool), which falls within the prohibited bounds. It is a freehold interest and was made in 1994 when the 1992 Constitution was in force. (It commenced on 7th January 1993). Since it is a Constitutional prohibition, the alienation of the land by the Nungua Stool to the three brothers becomes void and of no effect. It does not matter that the Land Registrar has issued a Certificate over the Land. An argument perhaps may be made that the stool’s interest becomes extinguished by way of limitation after the lapse of time. This argument is too feeble.


Limitation of actions are provided for by the Limitation Act of 1975, NRCD 54. Its counterpart doctrines, acquiescence and laches can also not apply to the extent that they are equitable doctrines. Under article 11 of the Constitution, the laws of Ghana comprise of enactments and the common law, including the rules of equity among others. No matter the noise these laws may make, when they come into conflict with the Constitution, their mouths are soon shut up with no venom to spit.


It is a fact known to even non-lawyers that the Constitution is a superior law and as supreme as it is, any other law inconsistent with it must lose its existence and validity. It is of little surprise that section 96 (7) and section 104 of the Criminal Procedure Act, 1960 (Act 30) prohibiting the grant of bail in some offences and incarcerating sureties for forfeiture of recognizance respectively, have all been struck out recently by the Supreme Court. See Martin Kpebu v. A.G., Suit No. J1/13/2015, dated 5th May 2016, S.C. (Unreported) and Martin Kpebu v. A.G., Writ No. J1/7/2015, dated 1st December, 2015, SC (Unreported). The two provisions in Act 30 were in force for more than half a century, but once it was unconstitutional, it was unconstitutional and time was no considering factor for the Supreme Court not to strike them down.



The second defendant relies on a Land Certificate Number TD 4055 issued on 29th January,

2010 as the basis of her title. She was joined to the suit by an order of the Court dated 11th March 2009 by His Lordship P.D. Ofei. She called her grantor, Joshua Alabi Teiman, one of the three brothers to testify as a witness. He was no different from his brother, the first defendant. In his bid to tell lies, he fumbled with less complex questions, like when their grantor died. Since parties are not bound to call their grantors at all times, D2 would have been better off not calling her grantor.

See Prof. Stephen Adei & Anor. v. Grace Robertson & Anor.; Civil Appeal No. J4/2/2015, Dated

10th March 2016, per Pwamang JSC and Mark Ofei Antwi v. John Kwaku Mortey [2015] 90 GMJ 85 @ 103-104, CA, per Owusu JA. To say the least, D2W1’s evidence had a rather negative impact on the suit than the purpose it should have served.


Counsel for the Plaintiff argues that by virtue of the Interlocutory Injunction that the status quo ante be preserved in respect of the disputed land, the second defendant could not have gone ahead with the registration process of the land in her name. Counsel for second defendant denies the assertion and submits that his client started the registration process way back in year 2000, 10 good years before the certificate was issued to her and that the Court restrained the parties on 22nd July 2011 when her client had received her Land Title Certificate a year before. I find the explanation implausible. Let me say that the issue about the interlocutory injunction does not come into the fray at all.


Section 12 (2) of PNDCL 152 makes it clear that once litigation is going on in Court, all processes before the Land Registrar must be stayed in respect of the land. The second defendant should have notified the Land Registrar of the pendency of the court matter so that the land registrar would not proceed to issue the Certificate. A duty is placed on all such applicants to make such a disclosure. This is irrespective of an injunctive order or not. In the Registered Trustees of the Catholic Church, Achimota Accra v. Buildaf & 2 Others [2015] 91 GMJ 36-37, Benin JSC held: “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. Land Certificate issued during the pendency of a litigation lends itself to be cancelled.


Akamba JSC in Numo Nortey Adjeifio (substituted by Nii Adjei Sankuma) & 2 Ors. [2012] 48 G.M.J. 65 @ 101-102, 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. What is the status of the land certificate issued in defiance of the clear provisions of section 12 (2) of PNDCL 152 afore quoted? It is obvious to me that the registrar had no mandate to issue the certificate when he did because the parties were already in court and to his knowledge at the time. By nevertheless issuing the certificate at the time, the registrar had exceeded his powers by acting prematurely and in clear violation of the provisions quoted above. It therefore lies within the powers of this court to strike out the certificate which we hereby do and declare the said land title certificate No. GA 2811 invalid.” See Kasser v. Raziel Construction Ltd. [1993-94] 1 GLR 332, SC @ holding 2; Boyefio v. NTHC Properties Ltd. [1996-1997] SCGLR 531; [1997-98] 1 GLR 768 and da Rocha & CHK Lodoh supra at page 447.


In any event, as the grant by the Nungua Stool is void, all other grants or sales in respect of the land by any of the three brothers is also void and this includes the grant made by Joshua Teiman Alabi to the second defendant. The invalidity would have affected the plaintiff’s too if the land had validly been conveyed to her. I noticed also that the land granted to the second defendant was freehold. Let me venture to say that had the three brothers been the true owners of the land (i.e. not having acquired it from a stool or if it did, before 1993), the freehold interest granted by them to the second defendant would have been lawful. That, not being the case, it is my unpleasant duty to declare the Freehold interest acquired by the three brothers as void.


I know all parties in this suit may be affected one way or the other by this judgment, but on the 31st day of May 2010 and 6th August 2013 when fate handed to me a Bible to take the judicial oath, I obediently accepted the challenge and solemnly swore to uphold the Constitution and all the laws of Ghana. In that regard, I sought the lord’s grace to help me. I cannot now overlook the clear provisions of the Constitution when fate has again revisited; this time to test me how loyal I would accord my own previous oaths to protect the Constitution at all times, even when the consequences would produce a bitter pill for all to swallow. Date Bah JSC’s admonishment in the Ex Parte National Lottery Authority supra, keeps resonating in my mind. The distinguished retired Supreme Court Judge decided: “The judicial oath enjoins judges to uphold the law, rather than condoning breaches of Acts of Parliament by their orders. The end of the Judicial oath set out in the Second Schedule of the 1992 Constitution is as follows: ‘I will at all times uphold, preserve, protect and defend the Constitution and laws of the Republic of Ghana.” Would I be protecting and defending the Constitution, if I overlook article 267 (5) and proceed to recognize the freehold grant to the three brothers? I think not!


By virtue of the fact that the two purchasers of the land in dispute base their claim on the title held by the three brothers, the invalidity of the root of their titles tend to affect them too. That is the extent to which our neighbour’s actions and inactions can bounce back to affect us. Marty Rubin philosophically stated: “An echo has no voice of its own.” An action definitely cannot be founded on an illegal act. Osei Hwere JSC in the case of Republic v. High Court, Ex Parte Darke XII [1992] 2 GLR 688 once held: “If the the tree is poisoned, its fruits must also be poisoned.” This means both plaintiff and second defendant could not have had a better title when its grantor’s title is in breach of the Constitution.

Consequently, I decree as follows:

a. That the Freehold interest conveyed to Davies Bortieh, Joshua Alabi Teiman and Abraham Adjin in 1994 by the Nungua Stool is hereby declared void and of no legal effect to the extent that it contravenes the express provisions of the 1992 Constitution.

b. That the 24. 759 acre-land erroneously conveyed to the afore-mentioned be reverted to the Nungua Stool forthwith.

c. That the Land Title Certificate Number GA 6038 issued in the name of Davies Bortieh, Joshua Alabi Teiman and Abraham Adjin on 31st August, 1994 be called up for cancellation with immediate effect.

d. That the Land Certificate Number TD 4055 issued on 29th January, 2010 and standing in the name of the Second Defendant, Esther Arthur be also called up for cancellation.

e. That the Land Registrar be served with copies of this Judgment/Orders by the Registrar of this Court for necessary action.

f. That the Nungua Stool be served with a copy of this Judgment for the stool to recover vacant possession of the 24.759 acre-land, it erroneously conveyed to Davies Bortieh, Joshua Alabi Teiman and Abraham Adjin.


Plaintiff has asked for equitable reliefs, I can only order the first defendant to refund the GH ¢17.8 Million she paid to him with interest from March 2000 to date. First defendant’s lawyer in his written address to the Court even made a proposal for compensation and I believe it is fair in the circumstance. Perhaps, I may come close to justice.


I was amused at the way all the three lawyers in this case enthusiastically advanced their clients’ cases. None however pointed to the Constitutional provision to guide the court. The lawyers have done their part and it is left with the court to do its work. An American author, H.P. Lovecraft before he died in 1937 in one of his humorous works noted: “Wise men have interpreted dreams but the gods have laughed.”


I sympathize with the parties, especially the plaintiff and second Defendant. They needed land of their own to build, and so had to pay money to buy it, but ended up litigating in this court for years. Now they are going home with virtually nothing. King Solomon said it all in the great book, that all is vanity. In fact, I agree perfectly with the great teacher – ‘vanity, vanity, all is vanity’. I send the parties away from this court with this poetry of Oman Khayyam, the accomplished Persian mathematician, philosopher and poet.


“Tis but a day we sojourn here below and all the gain we get is grief and woe


Then leaving our life’s riddles all unsolved


And burdened with regrets, we have to go.”