Court name
Court of Appeal
Case number
79 of 2002

Tetteh Vrs Akwertteh and Another (79 of 2002) [2004] GHACA 12 (09 July 2004);

Law report citations
Media neutral citation
[2004] GHACA 12
Coram
Omari-Sasu, JA
Tweneboa-Kodua, JA
Quaye, JA

IN THE SUPERIOR COURT OF JUDICATURE

IN THE COURT OF APPEAL

ACCRA  -  GHANA A.D.  2004.

 

 

 

CASE NO.79/2002

 

 

CORAM  -      OMARI – SASU JA

TWENEBOA KODUA  JA

QUAYE JA

 

 

EMMANUEL TETTEH QUAYE            …       PLAINTIFF/APPELLANT

 

                      Vrs.

 

JOHNSON AKWERTTEH & ANOR.      …    DEFENDANT/RESPONDENT

 

 

J  U  D  G   M  E  N  T

 

TWENEBOA-KODUA, JA -

The Appellant sued the Respondents for, inter alia, a declaration of title to a plot of land situate at Madina in Accra and lost his entire claim.  The respondents, on the other hand, succeeded on their counter-claim for reliefs as follows:

“(a)          A declaration of title to all that piece or parcel of land in extent

0.089 hectare (0.220 of an acre) more or less being Parcel No.133 Block 8 Section 121 situate in the Greater Accra Region

of Ghana………..as delineated  on Registry Map No.051\121\88  

in the Land Title Registry the Land Title Registry X’borg Accra.

  1. ¢100,000 damages for trespass.
  2. Perpetual injunction against Plaintiff his agents, assigns, workers and privies in respect of the land in question.”
  3. The respondents were also adjudged to recover costs assessed alters and privies in respect of the land in question.”

The respondents were also adjudged to recover costs assessed at ¢400,000.00         against the appellant.

The salient facts of the dispute between the parties are set out here.  The Madina      plot of land in dispute was said to have been purchased from one Alhaji Seidu, a La Store agent and the caretaker of La Stool Lands at Madina, Accra.  The acquisition was made by one Mensah, the appellant’s brother for the appellant on 5 July 1967.  The appellant was categorical that a couple, Mr and Mrs Cofie were his direct vendors and that the couple had received a grant of the plot in about 1962 from the La Stool.  The appellant’s brother,  Mensah was then engaged a caretaker of it.

        The appellant paid ¢60 (Sixty Cedis) “as survey fee and for customary drink.”       (Exhibit A at page 124 of the Record of Appeal)

      The piece of land that the Cofies allegedly sold to the appellant had a foundation on   it and it had been demarcated by a Land Surveyor, one Mr. Ayeeko.   The Surveyor also drew up a site plan for the appellant’s acquired portion.  The appellant’s solemn oath was that he had been in possession of the land ever since he bought it, raising food crops on it without let or hindrance till 1996 when the respondents started their interference.

       On or about 8 September, 1997 the appellant obtained a formal lease from the    radical owners of the land, the Nii Kwei-Tse We.  (Exhibit B).

     On the other hand, the 1st respondent made an acquisition of the disputed land on      7 August, 1967 to be precise, from the self-same Alhaji Seidu.  The same Land Surveyor, Mr. Ayeeko demarcated the land and made a site plan on it for the 1st respondent.

The 1st respondent asserted on oath that he had been in undisturbed possession,    also cultivating crops on the land till about 1995 when the appellant emerged on the land to interfere with his ( ie. the 1st respondent’s) peaceful enjoyment of the property.

On or about 20 December 1995 the 1st respondent was issued with a Land  Certificate for the disputed plot after the registration processes had been fully satisfied.

The appellant has sought in this appeal to impeach the decision of the Accra   Circuit Court on six grounds as follows:-

     “a.   The judgment is against the weight of evidence.

      b.   The trial Circuit Court Judge having found as fact that both [the]

Plaintiff\Appellant and [the]Defendants\Respondents traced their root of title to the land in dispute per ALHAJI SEIDU should have

given judgment to [the] Plaintiff/Appellant who purchased the land on 5th July 1967 as against the 1st Defendant’ document dated 7 August 1967.

       c.  That there is sufficient evidence of fraud on the part of the 1st

Defendant/Respondent to affect the grant of Land Certificate to him.

      d.   The trial judge erred in law in not applying Section 122 of PNDCL 152to order for rectification of the Land Register by cancelling the said Land Certificate fraudulently issued to [the] 1st Defendant.

  1. The trial judge erred in law in giving judgment for [the] 1st

Defendant on his counter-claim in view of the finding of facts

Made by her on the evidence of the 1st Defendant.

f.     The trial judge erred in stating that the plaintiff has been unable to prove his allegation of fraud notwithstanding the evidence of PW4, APALOO and PW1, [MENSAH] about possession of the land.

 

         By the nature of the rival claims in this action the plaintiff and the 1st defendant had

     equally apportioned burden to discharge: they each claimed exclusive title to the land            in dispute.  Each traced his root of title to the same vendor, that is to say through Alhaji Seidu to the La Stool.

The contending parties claimed to have obtained the property by purchase:they each insisted that they made their acquisition by a valid purchase.  In other words, the sale by

their common vendor was valid in their competing claims.

       The fundamental question was:  who had title – a valid one – to the disputed land?

       After the evaluation of the evidence offered on behalf of the appellant, the court below concluded -it indeed made a finding of fact – that the appellant had failed to prove title.

 

        The judge, came to say so at different places in her judgment.  At page 4 of the judgment which was the page 115 of the Record of Appeal, Her Honour, the judge said:

 

“For all the reasons above stated, I find as a fact that there was

no sale of land by Cofie to Plaintiff through PW1.”

 

             But a little earlier, the judge had also concluded:

 

“In the circumstances I find as a fact that the Plaintiff

has been unable to prove the alleged sale of the land in question

to his vendor Cofie.”  (p. 3 of the judgement lodged at page 113 of the     Record of Appeal).

    The reasons and circumstances which informed the foregoing conclusion shall be made manifest in due course.

The judge similarly appraised the case made by the respondents, particularly the 1st respondent, and adjudged them to have also failed to prove the lawful acquisition of the disputed land.  The judge assigned numerous reasons for her decision to reject their cases.  Prominent amongst them were their failure to call one witness whose testimony would have ended the raging dispute and who happened to be Ayeeko the Surveyor; the respondents’s inability to mention and/or identify the owners of adjoining land (the boundary owners around them), contradictions in the evidence that the 1st respondent led as well as his demeanour in the witness-box.

Against the backdrop foregoing, it appears the spring of justice had failed to    function and justice had failed when both side lost.

 

   The appellant does not however share that conviction or opinion.  Counsel for the appellant formulated the first ground of appeal as:

“(a)  The judgement is against the weight of evidence.”

In the filed submission on behalf of the appellant counsel related the testimonies    of the appellant and his witnesses that concentrated on the alleged sale of the disputed land to the Cofies who in turn granted it by a similar sale to the appellant through the appellant’s Brother, Mensah, PW1.  Reference was made the receipt (Exhibit A)  for the sum of ¢60 (Sixty Cedis) paid to a Land Surveyor for his fee for demarcating the land and for customary drink for the grant.

       Exhibit A offered as evidencing the sale transaction on the Madina land was dated 5 July 1967.  A lease instrument (Exhibit B) executed by Nikoi-Tse We of Klaana, La – Accra  was put in evidence apparently to improve the appellants case.  It is significant to note that Exhibit B was dated as late as 8 September 1997.

         That is the total weight of the appellant’s evidence against which the judgment of    the court below has been pitched and allegedly found untenable and unjust in the estimation of Counsel for the appellant.

         Counsel’s position is that the appellant had, by sufficient evidence, proved his case to carry the day.  This charitable view of counsel was buttressed on the totality of evidence adduced on behalf of the appellant.

         Counsel was enamoured to the Circuit judge’s complimentary remark once made about Comfort Fayorsey, PW3, that the witness was found completely truthful.

         Against that background, counsel construed PW3’s sworn evidence that she found the appellant on the disputed land as conclusive of the appellant’s claim of title to the land.

      It is with greatest respect submitted that the conclusion is non-sequitur: it is not unique.

      More so, it is the solemn oath of the self-same witness (Comfort Fayorsey) that by 1971, the appellant’s brother, Mensah (PW1) had intimated to her that the land was Mr. Cofie’s property.  That piece of information was a stout and strange contradiction of the appellant’s claim that he had purchased and owned the land from 1967.

That contradiction left the appellant’s claim in serious doubt, to put it mildly, and derogated from the earlier conclusion that his mere presence on the land vested him with ownership.

Another witness,  Mrs. Cofie, PW2 was found to have arrived in court armed with little or no knowledge about any transaction concerning the land. She claimed to be the wife of  one Cofie who was the appellant’s vendor.  She also claimed to have been given a mandate by her husband.

Her claims were false.  It came to light that she was rather a former wife and had not been given any mandate whatsoever.  She accordingly got her credits spent and no probative value was therefore attended, and rightly so, to her evidence by the court below.

Isaac Mensah, the appellant’s brother and PW1 in court certainly proved to be the alter ego of the appellant.  Indeed the appellant depended on his word for the evidence he gave

in the court below.  The appellant’s claim of the disputed property hung tenuously on the actions and inactions/omissions of PW1.

        PW1 was said to have undertaken the sale transaction with the vendors, the Cofies.  In one breath, the witness stated on oath that the purchase price was  ¢150 (One hundred and fifty cedis).  In another, ¢60 (Sixty Cedis) sufficed to pay for the Surveyor’s fee and customary drink (See Exhibit A).

        PW1 offered on oath that in the course of the sale transaction the appellant’s vendors (the Cofies) and he had gone to see Alhaji Seidu who granted the same land to the Cofies. Mrs Cofie, PW2, rejected this piece of evidence and asserted that she was only told about it by Mr. Cofie.

          The foregoing exemplified the fatal contradictions that bedeviled the parol evidence offered by the appellant and his witnesses in the bid to establish the appellant’s alleged acquisition of the disputed land.

       The sworn  parole evidence offered for the appellant did not meet the required standard of proof and the court below cannot be faulted for finding against the appellant on the basis of the oral evidence offered by the witnesses.

The documentary evidence made available from the two instruments of a receipt (Exhibit A) and a lease (Exhibit B) offered the appellant no comfort.

Exhibit A referred to the incident of customary drink offer in the sale transaction that gave the transaction away as a customary law sale (transaction). 

          In the 1960s and until the enactment of the of the Conveyancing Decree, 1973  (NRCD 175), a sale transaction at customary law required no writing.                              The 1973 decree made the recording of the actual transaction a necessity:  the transaction would take place first and the recording thereafter.

           A transfer or conveyance of land made without recording was or is of no effect [Section 7(1) of the Conveyancing Decree, 1973).  Of course Section 138 of the Land Title Registration Law, 1986 (PNDCL 152) has repealed Sections 4 – 11 of NRCD 175 and replaced the formalities under NRCD 175 with the 1986 law’s own formalities.  The repeal, of course, is effective in areas declared as registration districts under PNDCL 152 It seems necessary to focus attention a bit here on customary law land sale transaction.  The sale begins with preliminaries such as negotiations, inquiries and searches.  It is significant to note that the parties to the sale transaction must be competent.  They must agree to the extent of the land to be sold and bought.  They must also agree to the purchase price and to the time of its payment.

When he offers customary drinks in the course of the preliminaries, the prospective purchaser will have given the “earnest money” (called tramma in Akan or equivalent custom) analogous to the payment of deposit under a contract of sale at common law.

“The completion of a valid sale of land under customary law, requires further public acts.  The prospective vendor or his caretaker or agent must go with the prospective purchaser to the land and there in the presence of witnesses, publicly make a symbolic delivery of possession (delivery of seisin) of the land to the purchaser.  The owners of the lands adjacent to and abutting the land to be conveyed are invited to be present, with the object of averting future disputes as to boundary (See paragraph 1 on page 238 of da Rocha & Lodoh:  GHANA LAND LAW AND CONCENYANCING, (published in 1955).

The quotation above offers fine details of the formalities to follow in a situation such as the one herein.  The appellant and his witnesses offered no evidence that the parties  followed any of the formalities or incidents of a valid sale at customary law, the finding by the court below that there had not been a sale or valid sale of the disputed plot of land to the appellant was well-founded.  The finding was a factor contributing to the judgment.

         It is necessary to return to the documentary evidence for a brief observation.  Had the sale at customary law satisfied the law, the instruments would have been of little or no importance: they would have been a surplusage because the law at that time did not require them.

What value could the instruments (the receipt in evidence as Exhibit A and the lease as Exhibit B) attract in the circumstances of the failure of the sale at customary law?  Zero!  Exhibit A was not executed by the vendor or his accredited caretaker or agent.  At least the court was not expressedly  told so.

Exhibit A has no description of the land it is supposed to be  evidencing the sale thereof.  There is no obvious nexus between the receipt and the Madina land in dispute:  The Exhibit is not unequivocally referable to the disputed plot.

As well, Exhibit B was not registered as of the time it was put in evidence and it was by law therefore of no effect [Section 24(1) of Land Registry Act, 1962 (Act 122].  Indeed the non-registration of it rendered the transaction under it void {See ASARE VRS. BROBBEY (1971)  2 GLR 331 at 337 C.A. & AMEFINU VRS. ODAMETEY (1977)  2 GLR 135 C.A.].  Both instruments offered the appellant no succour.

Since the appellant made no valid acquisition either on 5 July 1967 or in 1962 as he claimed, the root of title traced to Alhaji Seidu an alleged common vendor for the appellant and 1st respondent could not avail the former any advantage and the court below was justified in not giving him judgment.  The appeal fails on the second ground of appeal.  (See ground (c) above).

The grounds of appeal: (c) (d)  and (f)  turn on the charge or allegation of fraud made by the appellant.  Having been adjuged to have failed to prove his claim of title to the disputed land, the appellant lost his capacity to make the allegation of fraud against anybody.  He must fail on all those grounds.

The ground (e) reads:  the trial judge erred in law in giving judgment for the 1st respondent on his counter-claim in view of the findings of fact made by her on the evidence of the 1st respondent.

The 1st respondent claimed to have bought the land in dispute from the same Alhaji as agent for the La  Stool; he had paid  above).

The grounds of appeal: (c) (d)  and (f)  turn on the charge or allegation of fraud made by the appellant.  Having been adjuged to have failed to prove his claim of title to the disputed land, the appellant lost his capacity to make the allegation of fraud against anybody.  He must fail on all those grounds.

The ground (c) reads:  the trial judge erred in law in giving judgment for the 1st respondent on his counter-claim in view of the findings of fact made by her on the evidence of the 1st respondent.

       The 1st respondent claimed to have bought the land in dispute from the same Alhaji as agent for the La Stool; he had paid ¢60 (Sixty Cedis) and had been given a receipt dated 7 August 1967 (Exhibit 1).The payment was made to cover the Surveyor’s fee for demarcation and for customary drink.

       Being more ambitious, the 1st respondent received a conveyance and by means of the instrument he had his title registered and he was issued with Land Certificate on 20 December 1975.

      The court below had found the 1st respondent to have failed to prove that the sale to him was valid:  that the formalities had been followed.

      On the evidence, the court below took the view that the 1st respondent failed to call a vital witness whose evidence” would have made the difference.”  He did not know the boundary owners around him.  Above all, the 1st respondent’s evidence bristled with contradictions which made most of what he said in the witness-box to appear unreliable.

The only  thing that probably favoured him and inured to him was to registration of title to the land and his obtention of a Land Certificate.  That was not without  problems.

Without the Land Certificate, the court below found this party to have made mess of his claim and he would have been adjudged to have lost on his counter-claim as the appellant did on his claim.

The 1st respondent had informed the Land Registrar he had been in possession and had had no interference from any quarters since he bought the land in 1967 until 1996 when the appellant appeared upon the scene.  He retracted his claim that he had been  raising crops like the appellant.  He did so under cross-examination in his characteristic prevarication in the witness-box and left his claim seriously dented and unreliable.

The 1st respondent gave wrong information to the Land Title Registrar.  He failed to disclose that there had been a foundation or a platform on the land as indication or constructive notice of adverse possession.  That should have put the Registrar on his guard.

Apaloo,  a Land Registrar who testified as PW4  swore that the appellant put a caveat  too late in the day.  The witness swore that the 1st respondent had gone to misinform the Registrar that he was in possession of the land.  The misinformation paved the way for the issuance of the Land Certificate to the 1st respondent.

This witness stopped short of adjudging the peddling of misinformation to secure the issue of Land Certificate as fraudulent.

To the question:  “Q:  As you said here you have not discovered and fraud in what                                  

                                                you did.

                        A:      With exception of the information about who was in  was in

                                   occupation of the land, everything else they (the respondents)

                                    said was true.

                         

             The witness said the complaint lodged by the appellant was under investigation which had not ended before the action in the Circuit Court. It is my respectful view that the complaint of fraud must be given a definitive attention and answer in order to meet the end of justice.

Similarly the trial in the court below, in my humble view left many questions unanswered; it appeared perfunctory.  The parties were not guided to put across the facts and evidence crucial and essential to the success of their competing claims.  The blame for the lapses in the trial leaving it in a stalemate, so to speak, must be apportioned to all the officers of the court in the case.I feel strongly that a second look must be given to the entire case, with particular reference to the fraud allegation against the issuance of the Land Certificate.

Nobody should feel intimidated by the flaunting of a Certificate to fail to do justice and equity.  The observation of Ampia JSC  in the case of AMUZU VRS. OKLIKAH [1998-99] SCGLR 141 at 170. may offer a guide.  His Lordship said:

“………..if justice is to prevail in the manner lands are disposed of, the courts must be bold to avoid too strict an application of the provision of the Land Registry Act 1962 which gives blessing to fraudulent land dealers. In other words, justice must not be sacrificed on the altar of strict Adherence to provisions of laws which at times create hardship and  Unfairness.”  I think the same could  be said about the Land Title Registration Law, 1986 (PNDCL 175) .                   

Against the guide above, I make bold to say the question against the Land Certificate must be attended to or addressed and the whole trial done again for the sake of justice.

Against that background I shall set aside the entire judgment on appeal herein and order a remittal of the case to the Court below for a retrial.

                                                                                          TWENEBOA-KODUA

                                                                   JUSTICE OF APPEAL

                           

 

OMARI-SASU,  JA       -    I agree.                                   OMARI-SASU                                                                                                                             JUSTICE OF APPEAL

 

 

QUAYE,  JA   -      I also agree.                                           G. M. QUAYE

                                                                                            JUSTICE OF APPEAL