IN THE SUPERIOR COURT OF JUDICATURE
IN THE SUPREME COURT
ACCRA
CORAM:
WOOD (MRS), C.J. (PRESIDING)
ANSAH, J.S.C.
DOTSE, J.S.C.
A. YEBOAH, J.S.C.
BAFFOE-BONNIE, J.S.C.
CIVIL APPEAL
J4/14/2009
4TH NOVEMBER, 2009
KWAME BONSU
Head of Nana Ama Serwah family
Nsuase, Adum
…
PLAINTIFF/RESPONDENT
…
DEFENDANTS/APPELLANTS
VRS
1. KWAME KUSI
2. GIFTY KUSI AMPOFOWAA
JUDGMENT
WOOD (MRS), C.J:
On the 4th of November 2009, by a majority decision of three to two,
Georgina Wood CJ, Ansah and Dotse JSC, dismissed the appeal against the
judgment of the Court of Appeal, and reserved our reasons. We now assign
our reasons for our decision to affirm the judgment of the court below.
This appeal from the judgment of the Court of Appeal dated 15th April 2005,
relates to a parcel of land on Guggisberg Road Adum, Kumasi, more
particularly described as Plot No. 10, Block V111. On the 23rd of August 1999,
the Plaintiff-Appellant-Respondent (Respondent), in his capacity as a principal
member and elder of the Nana Ama Family of Nsuase issued a writ of
summons against the 1st Defendant-Respondent-Appellant (Appellant) for a
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declaration that the land in question is the property of the Plaintiff’s Family,
general damages for trespass and perpetual injunction. 2nd Defendant
successfully joined the action through her next friend Vida Kusi.
The parties are ad idem as regards the identity of the land. The central issue
is who owns the land, the subject matter of this suit which was filed some ten
years ago.
The Plaintiff, who claimed that he was suing in protection and preservation of
family property due to divisions within the family and the inaction of the head
of family despite repeated calls on him to act decisively in defence of the
family’s rights, maintained that the disputed property was originally acquired
by his ancestors, Nana Ama Serwaah and Nana Kweku Bewuowu around
1906. He further alleges that in 1926, the Kumasi Public Health Board
acquired a site in the vicinity of his ancestor’s property for “sanitary
purposes”. He further alleged that in demolishing the structures on the site
the Board had acquired for the project, they inadvertently demolished the two
buildings which his ancestors had erected on their plot of land, some twenty
years earlier.
By the Plaintiff’s account, eventually after years of agitation, the government
of Ghana in 1968 returned their land to the family. This was expected to be
done through Mr. Michael Reginald Asante, the head of family at the time,
whom, understandably, by virtue of his position as such family head, and the
equally important fact that he was literate, was authorised by the family, to
conduct all negotiations with regard to the property for and on behalf of the
family as family property, and clearly not as his personal property.
The
plaintiff claimed that since then he had dealt with the property as family
property. The further contention is that however, in 1993, when they
discovered that Asante had on occasions dealt with the property without their
consent and concurrence in a manner which was totally inconsistent with their
right and interest in the property, they had persistently warded off a number
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of trespassers, culminating in this present action, when they found
defendants erecting a fence around the said property.
The defendants disputed the facts as pleaded by the plaintiff, counter
alleging that Asante, in his lifetime acquired the property in his own right as
his personal property and exercised various acts of ownership over it, citing
instances when he did so without interference from the family, including their
acquisition of the property from their grantor, La petite Chemists. From the
Defendant’s account, the Plaintiffs, having always had notice of Asante’s
activities on the land and yet had stood by and done nothing to assert their
right or interest, if any, in the land are estopped by laches, statute,
acquiescence and conduct from asserting any claim to the land. Expectedly,
the 1st defendant counterclaimed for virtually the same reliefs as the plaintiff.
From the state of the pleadings, the plaintiffs clearly bore the evidential
burden of establishing, on the balance of probabilities that the land was
family property. it was evident from the pleadings that theirs was an uphill
task, given that firstly the title deeds to the property bore the name of
Asante, and secondly that the claim to ownership to the property, together
with all the facts they stood on in support thereof, were all made at the time
he was dead. Consequently, all these assertions ought to stand up to judicial
scrutiny.
The evidence they supplied in support of their case was mainly historical;
family history. Additionally, they tendered a petition, Exhibit B, allegedly
written by the family and co-signed by Asante, which referred extensively to
the family character of the property. The trial court, unimpressed by the
plaintiff’s evidence dismissed the Plaintiffs’ action and gave judgment for the
defendants. Unperturbed, the Plaintiff successfully appealed the said decision.
It is the Defendant’s dissatisfaction with the reversal of the decision by the
Court of Appeal that has culminated in this instant appeal, which is founded
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on the oft –used omnibus ground of appeal, the judgment is against the
weight of evidence and four additional grounds. These are set out hereunder.
“1.The decision of the Court of Appeal setting aside the judgment of the
trial court for non-compliance with Section 27 (1) and (2) of Act 122 is
not supportable in law.
2. The Court of Appeal failed to pay due cognisance to the fact that the
Plaintiff’s claim disputes the right, title, and interest, of Asante, who had
died long before the institution of the action.
3. The Court of Appeal failed to recognise that the Defendants were bona
fide purchasers of the disputed property for value without notice.
4. The Court of Appeal erred in not invoking its power to amend the
declaration of title of the disputed property in favour of the 1st Defendant
to a declaration of title in favour of the 2nd as the trustee of Gifty Kusi
Ampofowaa, a minor.”
Undoubtedly, the respondents had difficult hurdles to clear at the trial. The
emphasis however is on the fact that the hurdles were quite difficult, not that
they were insurmountable. Three important legal principles loomed as barriers
against them. First, the title deed covering the property was in the name of
Michael Reginald Asante; raising a presumption in his favour, albeit a
rebuttable presumption, that by virtue of s. 35 of the Evidence Act 1975,
NRCD 323 that indeed he bore the full beneficial or legal title. This meant the
respondents bore the evidentiary burden of proving that contrary to the
disclosure on the Exhibit 4, they were the legal owners of the property.
Second, the respondents relied mainly on family history in proof of their case.
The legal principle as I observed in the case of In re Koranteng-Addow
(Decd); Koranteng –Addow v Koranteng [1995-96] GLR 252
that family
history, like traditional history, must be treated with great circumspection.
Third, the claims the respondents made against the deceased Asante in
respect of the property, were all critical assertions against the deceased, in
whose favour the presumption of ownership stood. These claims belong to
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the class of evidence that must at first be received with the greatest caution
and scrutinised carefully before being given the requisite weight. It is
however clear from the evidence that the respondents acquitted themselves
creditably, by discharging satisfactorily, the legal burdens placed on them.
At summons for directions, the trial court set down only two key issues for
determination. The court might have thought the other issues were tangential
or subsidiary to these two main issues. The trial court however thought the
respondents, as plaintiffs, had failed to establish their claim to title
conclusively, since all the registered leases tendered in evidence by the
respondents were in the name of Michael Reginald Asante, without any
reference to the family.
The Court of Appeal, as already noted, reversed the decision of the trial High
Court, on the ground, inter alia, that the appellant had failed to comply with
the statutory procedural requirements of ss.27 1 and 2 of the Land Registry
Act, 1962, Act 122 and consequently failed to prove registration and indeed
title to the subject matter.
Speaking unanimously through Asare Korang JA, their Lordships observed:
“For the appellant it was submitted that on additional ground one of
the grounds of appeal that admittedly the respondents tendered
Exhibits 1,3,4,5,6 and 7 without objection which exhibits on their faces
bore evidence of registration. But the mere tendering of the said
exhibits in court did not amount to proof of registration because the
land registry Act 1962, Act 122 clearly states the statutory procedure
to be followed in establishing proof of registration. These procedures
are to be found in Sections 19 and 27[1] and [2] of the Act which
enjoin a party first to apply to the Registrar of Lands for the relevant
copy or extract of certificate of registration and thereafter for the other
party to be served with notice of intention to tender the said copy or
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extract or certificate of registration together with delivery to him of the
relevant document. The Appellant submitted that failure to comply with
the procedure set out in the statute was fatal and the mere production
of the originals of Exhibits 1, 3,4,5,6 and 7 was not sufficient evidence
of registration. For this statement of law, the Appellant relied on the
case of Botchway vs. Okine [1987-88] 2 GLR C.A.
The answer made by the respondent to this argument was that the
fact of registration of the documents referred to was admitted by the
Appellant in his pleadings and in any case BOTCHWAY vrs.(sic) OKINE
was distinguishable from the facts of this case because the CoDefendant in that case by his defence specifically denied the fact of
registration of the Plaintiff’s document and put the plaintiff to strict
proof of same. My understanding of the holding in BOTCHWAY vs.
OKINE [Supra] is that the mere production in court of an original deed
which on the face shows a land registry number, is not sufficient
evidence of registration and that for such a deed to be receivable in
evidence, there must be a compliance with the procedures laid down in
Sections 19 and 27 [1] and [2] of Act 122. Botchway vrs. OKINE
[supra] also decided that the mere admission of a document did not
prove the truth of its contents against a person who was not a party to
it and as OSEI-HWERE, J.A (as he then was) observed in that case,
“It ought to be emphasised that the registration does not
prevent the court from ascertaining who has a valid title to a
piece of land, and it must also be borne in mind that registration
will not confer any legal right or title on any party who took his
grant from a person who had no legal title to convey… there is
nothing in the Land Registry Act, 1962 which states that the
validity of any deed of conveyance or any instrument should not
be questioned or challenged in any court of law after it has been
registered”
It seems to me therefore, having regard to the principle expressed in
Botchway vrs Okine, that even though the Appellant admitted the fact
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of registration, of the Respondents documents in this case, it was
incumbent on the Respondents to, as a matter of law, prove the
registration of their deeds or conveyances in the manner or according
to the procedures enshrined in Sections 19 and 27[1] and [2] of Act
122. The failure of the Respondents to comply with the statutory
requirement of the law therefore negated the verdict of the trial judge
that the Respondents had proved their title to the property in dispute
on the basis of the registered documents tendered by them”
A critical question emerging from the original ground 1, as well as the
additional grounds 1, 2, and 4 which I intend to take together, is what is the
scope of ss. 27 (1) & (2) of Act 122.
The main thrust of his argument is that since their title deed and related
instruments they tendered at the trial as exhibits 1-7, were all admitted into
evidence without a single objection, and no issue was raised as to their
validities or otherwise, the appellate court erred in its conclusion that the
appellants ought nevertheless to have complied with the procedure laid down
in ss. 19 and 27 of Act 122.
Indeed, counsel’s arguments in support of
the additional ground 1 in
particular, covered a wide range of issues including the scope of and the
policy reasoning behind the statutory provisions under consideration to other
legal principles thought to pertinently relate to the classification of
enactments and the fundamental differences between mandatory, absolute,
obligatory or strict legislation on the one hand as opposed to directory or
permissive provisions on the other hand, the consequences that flow from
non compliance or a breach of a mandatory or directory enactment and so
also the related common law principle of waiver which has found expression
in O. 11 r. 47 (4) of the High Court (Civil Procedure) rules CI 47. To this end,
extensive references were made to cases like Dahabieh v Turqui [2001-2002]
SCGLR498; Oman Ghana Trust Holdings v Acquah [1984-86] 198, among
others. I commend him for his industry and the in-depth analysis of the issues
7
involved in the controversy. Our simple answer to the issues he has so
carefully addressed is this. We first make reference to the relevant sections
19 and 27 of Act 122.
Sections 19 & 27 of Act 122
“S19- A Registrar shall, on application allow searches to be made at
reasonable times in a book, register, or a list in the Registrar’s custody and
shall on request give certified copies of, or of a duplicate or copy of a
registered instrument filed in a register.
27 (1)A copy of an extract or certificate of registry, purporting to be signed by
a registrar shall be receivable in evidence in a Court without further or any
other proof, unless it is proved to be a forgery.
S27(2)The party proposing to use the copy, extract or certificate in evidence
in a civil case shall give notice of that intention in writing to the opposite
party, and at the same time shall deliver to the appropriate party a copy of
the copy or extract and the certificate of the copy or the extract.
S27 (3) On proof of the service or an admission of the receipt of the notice
and the copy, the certified copy or extract shall be received in evidence if the
Court is of the opinion that the service has been in sufficient time before
hearing to enable the opposite party to apply for a search of the original book
or register from which the copy or extract was made.
(1) On proof of the service or on admission of the receipt of the notice and
the copy, the certified copy or extract shall be received in evidence if
the Court is of the opinion that the service has been made in sufficient
time before the hearing to enable the opposite party to apply for a
search of the original book or the register from which the copy or
extract was taken.
8
What is the import of these provisions? We are of the opinion that a fair
reading of these provisions as a whole would not, respectfully, result in the
decision reached by their Lordships of the Court of Appeal.
The whole
purpose of these provisions is to facilitate proof of registration of instruments.
Provision is therefore made under s19 for searches to be made in any of the
official documents in the registrar’s custody, namely, book, register, or list.
Additionally, under it, a request may be made for certified copies of or of a
duplicate or copy of a registered instrument filed in a registry, obviously for
use in civil proceedings. The procedural requirement of notice in writing, as
set out in s.27 arises only where a party seeks to tender any such copy, or
extract, or certificate in evidence. It allows a party to procure evidence of a
registered instrument from proper sources, that is the custody of the
registrar, while providing adequate opportunity to the opposing party to have
advanced knowledge of the fact so that the genuineness or otherwise of
those instruments could be ascertained before they are tendered at the trial.
This procedure enables justice to be served as the party against whom the
instrument is sought to be tendered, and who therefore could exercise his or
her right of waiver of notice in writing, is not caught by surprise or prejudiced
in any manner, while unnecessary delay is altogether avoided. The sections
19 and 23 of Act 122 exist for the mutual benefit of parties in civil litigation;
their primary purpose being to facilitate the smooth, fair and speedy conduct
of land litigation.
It stands to reason then that objections raised on appeal, relating to non
compliance with these statutory provisions could only properly be sustained
where, the record reveals, inter alia, that the document sought to be
tendered falls into any of the stipulated classifications, namely, that it was
either a certified copy or a duplicate or a copy of a registered document,
obtained on request from the registrar, following a search of the official
record, namely, a book, register or list as the case may be.
9
Was that the situation in this case? I do not think so. The appellant had
pleaded per his statement of defence, in paragraphs 4-7 the following:
“4. The said land was acquired by the said Michael Reginald Asante from the
President of the Republic of Ghana in trust for the Golden Stool and the
Kumasi State in 1961 under a deed of conveyance which was registered at
the Kumasi Lands Registry under Title No. 2686 and Serial No. 7007.
5. There is no evidence from the said deed of conveyance that the said land
was and is the property of the plaintiff’s alleged family.
6. The said Michael Reginald Asante remained in undisturbed possession of
the said land until in March 1969 he sold his interest therein to Kofi Aboagye
under a deed of conveyance which was registered at the said Registry under
Title No. 2686 and Serial No. 134/69.
7. The said Kofi Aboagye also sold his interest in the said land to Michael
Reginald Asante in September, 1978, under a deed of conveyance which was
registered at the said Lands Registry under Title No. 2686 and serial No.
853/78.”
The respondents have admitted these in unequivocal terms as per their
paragraphs 9, 10 and 11 of their reply. In reality therefore, no issue was
joined as to the authenticity of the documents sought to be tendered, more
particularly as to whether they were extracts, copies or duplicates of the
registered instruments. The real matter in controversy related to whether,
Asante executed these documents transferring title to the beneficiaries in his
own right as bona fide owner of the disputed property or as it was contended,
surreptitiously, without the knowledge and consent of the respondents who
allege that they are the true owners, since he was only holding the said land
in trust for the family.
It is an elementary principle of law that in civil litigation, where no issue was
joined as between parties on a specific question, issue or fact, no duty was
10
cast on the party asserting it to lead evidence in proof of that fact or issue.
Indeed, most of the delays associated with civil trials would be avoided, if this
simple elementary evidentiary rule were strictly adhered to. On the basis of
this time honoured principle, the appellants were not even under any
obligation to have tendered all of these documents complained of, documents
which bore evidence of registration ex facie, let alone be held accountable for
non compliance with the procedural requirements of notice under s. 27 of Act
122, let alone have their claim thrown out on that basis. In any event, the
evidence does not suggest in the remotest sense that these documents fall
into any of the stated classifications or even more importantly, that at the
time they sought to tender them; the respondents raised objections to the
non compliance with the statutory requirements. In Fori v Ayerebi 1966 2 GLR
627, a most direct and helpful authority on the point about undenied
averments, this court held:
“When a party had made an averment and that averment was not denied, no
issue was joined and no evidence be led on that averment. Similarly, when a
party had given evidence of a material fact and was not cross-examined upon
it, he need not call further evidence of that fact.”
See also Hammond v Amuah [1991] GLR 89 at 91, as well as Western
Hardwood Enterprises Ltd. v West African Enterprises Ltd. [1998-99] SCGLR
105. The appellants had no burden to discharge in terms of the procedural
requirements of the s. 27(2) and (3) of Act 123.
Indeed, on the clear facts of this case, Botchway v Okine supra, a case in
which the fact of the registration of the appellant’s title was challenged and
so lay at the heart of the dispute, is clearly distinguishable from and therefore
totally inapplicable to this case, in which registration is not an issue. The
fundamental difference between the two cases can distinctly be drawn from
this observation by Osei-Hwere JA:
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“One of the pillars on which the trial judge rested his judgment was that the
plaintiff had failed to prove that his deed of title had been registered. The
question of registration loomed ominously at the trial because of the telling
effect of non-registration provided be section 24(1) of the Lands Registry Act,
1962(Act 122). At the trial the plaintiff tendered his title deed as exhibit A
and, in his attempt to impugn the co-defendant’s title deed; he tendered it as
exhibit B.”
To have their claim dismissed on the grounds articulated by their Lordships is
not factually or legally justifiable.
This conclusion does not however spell the doom of the respondents’ case. Is
there sufficient evidence to justify an affirmation of the appellate court’s
findings, inferences and conclusions? The evidence led by the respondents
does support the concurrent finding of fact by both the trial and appellate
courts that the family did petition the Asantehene over the disputed land and
further that Asante was one of the signatories to the petition. Rather
remarkably, Appellant counsel submitted that the trial court never made a
definitive finding that Asante was indeed a signatory to the petition. The
arguments were variously expressed in the following terms:
“38 Notwithstanding the clear findings above, the Court of Appeal upset the
judgment of the trial court thus at page 5 of its judgment:
“The learned trial judge, it is also quite clear, failed to consider the legal
effect of Exhibit ‘B’, the petition which the trial judge said he was more than
adequately satisfied Michael Reginald Asante had signed himself on behalf of
the Appellant’s family. It was categorically stated in Exhibit ‘B’ that the land in
dispute was the property of the family to which Michael Reginald Asante
belonged.” Counsel’s emphasis”
39 …Their Lordships in the Court of Appeal fell into grievous error…”
12
41 It has been demonstrated that the judgment of the court of Appeal was
based on a grievous mistake of attributing to the trial judge what he never
said i. e. that the learned judge had held that “he was more than adequately
satisfied Michael Asante had signed” Exhibit B. The appellant therefore invites
this court to invoke its powers under article 129 (4) of the constitution 1992
and section 2 (4) of the courts Act 1993 (Act 459) to expunge the error and
preserve the decision of the trial judge…”
In view of these serious submissions I have had to scrutinise the judgment of
the trial court. Contrary to counsel’s contention the trial judge did make a
finding of fact as attributed to him, he only failed to draw an inference that
would have favoured the respondents cause. That part of the judgment
reads:
“It is also fact that while exhibit B more than adequately satisfies me that
PW2 NA Reginald Asante signed a petiton to the Asantehene on behalf of the
family, yet neither the plaintiff nor PW1 linked PW2 with the petition or any
negotiations towards the revesting of the land.”
We have no reason to question that finding, which as we shall demonstrate
shortly, is warranted by the record. Also, Appellant counsel has pointed to
what he describes as inconsistencies in the evidence of PW1 and PW2 to
demonstrate that no such events took place. I do not find any material
conflicts or inconsistencies of the like that would cast doubts in their version
of events. Speaking on behalf of this court, I concluded in the case of Efisah v
Ansah [2005-2006] SCGLR 943 that, it is only major discrepancies that go to
the root of testimonies that affect the weight that must be attached to
evidence given at a trial. We expressed ourselves in the following terms:
“In the real world, evidence led at any trial which turned principally on issues
of fact, and involving a fair number of witnesses, would not be entirely free
13
from inconsistencies, conflicts or contradictions and the like. In evaluating
evidence led at a trial, the presence of such matters per se, should not justify
a wholesale rejection of the evidence to which they might relate. Thus, in any
given case, minor, immaterial, insignificant, or non-critical inconsistencies
must not be dwelt upon to deny justice to a party who had substantially
discharged his or her burden of persuasion.”
We think that the account given by a man aged 87 years, many years after
the events happened, part of those years having been spent in political
detention, in our country’s non-friendly detention facilities, are bound to be
imperfect to some extent. Indeed, to demand that the evidence of such a
witness must fit in every particular or tally with that of his equally aged
illiterate relative, years after the event is the height of injustice. But does the
appellant counsel’s line of cross examination not belie any suggestion that a
petition was written. The appellants admit the existence of the petiton, their
real complaint being that the family contrived to forge Asante’s on realising
that the area had been rezoned.
We therefore proceed to examine the more serious complaint as to whether
or not Asante was a signatory to the said petition. It was contended that the
Court of Appeal failed to apply the relevant cogency test to two material
assertions by the plaintiffs against the deceased Asante, who had died some
11- 13 years before the institution of the action, namely, that he was a
signatory to the family petition, and further disputed his right to title and
interest to the land, assertions which clearly amounted to declarations against
his interest. The main argument is that the respondents failed to provide the
requisite corroboration to the claim that Asante signed the petition Exh A.
The sound principle that corroboration must be provided in support of claims
or charges made against dead persons, is expressed as follows in In re
Garnett; Gandy v Macauly (1885) 31 Ch D 1 :
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“The law is that when an attempt is made to charge a dead person in a
matter, in which if he were alive he might have answered the charge,
the evidence ought to be looked at with great care; the evidence ought
to be thoroughly sifted, and the mind of any Judge who hears it ought
to be, first of all in a state of suspicion; but if in the end the
truthfulness of the witnesses is made perfectly clear and apparent, and
the tribunal which has to act on their evidence believes them, the
suggested doctrine [of corroboration] becomes absurd. ”
Again I did not only apply this principle in the Koranteng –Addo case, but
proceeded a step further to explain who bears the burden of proof in such
cases.
Fundamentally, the authorities do not lay down any intractable rule of law
that charges or claims against a dead person cannot succeed without
corroboration. To the contrary, the discernible principle is that a court can
proceed on the uncorroborated evidence if satisfied about its truthfulness.
The only rider or caution is that the court must examine the evidence
critically, with utmost care, weighing or sifting it thoroughly, to ensure there
are no loopholes or that the charge or claim does not suffer from any
absurdities or the like. A judge in receipt of uncorroborated evidence
consisting in the main of charges against a deceased person does not swallow
the story lock, stock and barrel, but first views it from a suspicious standpoint.
If the story as presented is neither incongruous, preposterous, unreasonable,
illogical, nor incredible, then the judge may proceed to give it the weight it
deserves. The exercise relates to the cogency or the weight to be attached to
the evidence given. In this regard, the question of the credibility of a witness
is critical to a determination of the cogency issue. In our jurisprudence, the
criteria for determining the obviously difficult question of credibility, is
statutorily provided for under s.80 of the NRCD 323, ( now the Evidence Act,
1975). The law stipulates:
“Attacking or supporting credibility
15
(1)
Except as otherwise provided by this Act, the Court or jury may, in
determining the credibility of a witness, consider a matter which is
relevant to prove or disapprove the truthfulness of the testimony of the
witness at the trial.
(2)
Matters which may be relevant to the determination of the credibility of
the witness include, but are not limited to
(a)
the demeanour of the witness;
(b)
the substance of the testimony;
(c)
the existence or non-existence of a fact testified to by the witness;
(d)
the capacity and opportunity of the witness to perceive recollect or
relate a matter about which the witness testifies;
(e)
the existence or non-existence of bias, interest or any other motive;
(f)
the character of the witness as to traits of honesty or truthfulness or
their opposites;
(g)
a statement or conduct which is consistent or inconsistent with the
testimony of the witness at the trial;
(h)
the statement of the witness admitting untruthfulness or asserting
untruthfulness.”
For which reason, we believe a court would be justified, in addition to using
other relevant matters, to take some of the matters set out under s. 80 of the
Evidence Act, 1975, NRCD 323, into consideration to determine the vexed
question of whether or not to accept the claims against the deceased.
Again, we think it is important to underscore the point that the corroboration
that is required is independent evidence, oral or documentary, that would
confirm the truth of the assertions made. The S. (7) 1 of the Evidence Act,
(1975) NRCD 323, defines corroboration as consisting of:
16
“...evidence from which a reasonable inference can be drawn which confirms
in material particular the evidence to be corroborated and connects the
relevant person to the crime, claim or defence.”
So for example, expert evidence properly procured and admitted in terms of
the Evidence Decree NRCD 323 could suffice.
Applying all of these simple legal principles to the facts of this case, it became
clear to me that the respondents provided the requisite corroboration to the
oral claim, supported by the document Exhibit B, that Asante signed the
petition. In an attempt to satisfy the just requirements of the law, and test
the genuineness of the signature said to be that of Asante, I examined one of
the documents tendered by the appellant in proof of undisturbed acts of
ownership exercised by Asante, a deed of assignment between Asante and
one Opanin Kofi Aboagye Exhibit 5 and also exhibit 6. Asante’s signature on
these exhibits which were tendered by the appellants are obviously not
disputed. Contrariwise, these are his genuine signatures tendered by no less a
person than the party disputing the assertions made by the respondents
against the deceased Asante. An even cursory comparison of Asante’s
signature as appears on the Exhibits 5 & 6 with that of his alleged signature
on Exhibit B shows the two are the same. We find the same neat, smooth,
confident and nicely written signature; no tell tale signs of a forgery, as for
instance, a wobbly writing or smudginess characteristic of or suggestive of
forgery works.
We will have no justification to disturb the crucial finding by the trial and
appellate justices, which finding is supported by the record that Asante was a
signatory to the Exhibit B.
The correct inference that flows from this critical finding that Michael Reginald
Asante co-authored the petition with the PW2 for a return of this land which
was originally family land is that Asante was bound by the terms of the
17
declarations he made against himself and cannot resile from them. Indeed,
under the s.25 of the Evidence Act, 1975, NRCD 323, the facts recited in the
document were conclusively presumed to be true between the parties and all
persons claiming through them. In short, it created an estoppel by written
document, binding the appellant and his successors. Differently stated, the
legal effect of this declaration against interest is that Asante and persons
claiming through him are estopped from asserting otherwise. Appellant was
unable to establish that Asante’s case fell under any of the exceptions created
under s. 25 (2).
In any event, given these bare facts, this sound and well settled principle of
customary law, intended to protect family property from being converted into
private property, would imply that even if Asante used his own personal
resources, ingenuity and the best of his negotiating skills in acquiring the
property, he did so on behalf of the family and not for himself. The principle,
which has been accepted and applied in a number of cases, including the
relatively modern case of Ansah –Addo and Others v Addo and Another AND
Ansah- Addo and others v Asante (Consolidated) [1972] GLR 400, is that if
any member of a family uses his or her own funds to recover property lost to
the family, the property reverts to its family character; it does not become the
individual’s private property. On this principle also, the property cannot be
described as the appellants’ self acquired property.
Yet again, the trial judge erred in concluding that:
“No attempt whatsoever was made by the Plaintiff to support his
assertion that the family consented to a pledge of the land by Reginald
Asante to Kofi Aboagye. The same paucity of evidence relates to the
pledge as well as its redemption.”
The evidence on record does not support this finding. Exhibits 4 and 5 which
were tendered in by the Defendants are indentures made between Kofi
18
Aboagye and Michael Reginald Asante and between Michael Reginald Asante
and Kofi Aboagye respectively. The indenture between Michael Reginald
Asante and Kofi Aboagye was made on the 17th day of March 1969 and the
consideration for the assignment was N¢4000.00. Nine years later, precisely
in 1978, another indenture was executed between Opanyin Kofi Aboagye and
Reginald Asante, also for a consideration of the sum of Four Thousand cedis.
Remarkably, the transaction was made between the same parties and for the
same consideration after a period of nine years. The notoriously well known
fact in our jurisdiction is that land does not depreciate; to the contrary its
value appreciates significantly overtime. Had the trial Judge taken judicial
notice of this notorious fact, he would not only have found it a bit startling
that after nine years the land which had supposedly been assigned to
Opanyin Kofi Aboagye outright was re-assigned to the same party for the
same consideration. In other words, why would Kofi Aboagye feel compelled
to re- assign the property he had purchased to his vendor at the same price
some nine years later? Are these set of facts rather not consistent with
pledges? We are of the view that these simple facts lend credence to the
Plaintiff’s assertion that the transaction was not a sale as contended by the
appellants, but rather a pledge without the family’s authority, which was later
redeemed by the family as testified to by the respondents. Their Lordships in
the Court of Appeal rightly concluded that the judgment was indeed against
the weight of evidence.
There is no dearth of authority on the issue of the circumstances under which
an appellate court would interfere with the findings of a lower court. In the
case of Efisah v Ansah [2005-2006] SCGLR 943 @ 959, Georgina Wood
J.S.C (as she then was) identified the grounds as follows:
“The well-settled rule governing the circumstances under which an
appellate court may interfere with the findings of a trial tribunal, has
been examined times without number by this court in a number of
19
cases, as for example, Fofie v Zanyo [1992] 2 GLR 475; and Barclays
Bank Ghana Ltd v Sakari [1996-97] SCGLR 639. The dictum of Acquah
JSC (as he then was) in the Sakari case, is for our purposes, highly
relevant. His Lordship observed (at page 650 of the report) as follows:
“where the findings are based on undisputed facts and
documents…, the appellate court is in decidedly the same
position as the lower courts and can examine those facts and
materials to see whether the lower courts findings are justified
in terms of the relevant legal decisions and principles”
It is thus well-settled that specific findings of fact might properly be
said to be wrong because the tribunal had taken into account matters
which were relevant in law; or had excluded matters which were
crucially necessary for consideration; or had come to a conclusion
which no court, instructing itself on the law, would have reached; and
where the findings were not inferences drawn from specific facts, such
findings might properly be set aside…”
See also In re Koranteng (Decd); Addo v Koranteng [2005-2006]
SCGLR 1039
It was further submitted in relation to the omnibus ground of appeal, namely
the judgment is against the weight of evidence that as well as the additional
ground 3, the specific ground in relation thereto, that the evidence clearly
established that they were bona fide purchasers for value without notice of
the Plaintiff’s family interest if any, in the property. The court of Appeal had
concluded from the evidence that:
“There was, however, evidence led by the Appellant that as soon as his family
became aware of the assignment of the land to one Grace Nsiah, they took
steps to inform her that the land was family property and when shortly
thereafter Grace Nsiah died, they challenged her daughter and successor’s
20
use of the land. The family also filed a Caveat, Exhibit ‘A’ to warn people off
the land”.
We think the evidence justifies the finding that the respondents filed the
caveat Exhibit A in the Lands Department, Kumasi. This evidence which was
proffered by the plaintiff in clear unequivocal terms was not challenged in the
slightest manner by the appellants. True, the exhibit A was a duplicate, which
was admitted in evidence by the trial judge despite their objection. But, it is
equally true, that their line of cross-examination on this crucial document
would have informed the trial court as to the cogency or weight to attach to
it, or the witnesses if any, that the respondents should have called in further
proof of their claim that they had put the whole world on notice of their
interest in the property. Having failed to challenge the testimony along this
legally prescribed and well known procedure, they are disabled now from
raising issues relating to the wrong admission of evidence or the weight given
to the document, or even that the caveat did not conform to regulations 16,
Land Title Registration Regulations 1986 (LI 1341). Indeed, given the
explanation as to why the family filed the caveat and the broad purposes it
was intended to serve, the argument that caveats are not permitted under
Act 122 is most untenable. The whole purpose of a caveat under the PNDCL
152, ss111 and 112 is to prohibit the “registration of dispositions and the
making of entries in the register affecting the land or interest in question,
without the consent of the caveator”. A couple of well settled legal principles
therefore defeat this argument in its entirety. As rightly contended by the
respondent where a party seeks to rely on the doctrine of bona fide purchaser
for value, without notice, what they are enjoined to prove is that they had no
notice at all of their opponent’s interest in the property, not that they had the
notice but that they did not think or find that the notice conformed to law.
Equity looks to the intent rather than the substance and would clearly not
endorse any such technicality, intended to defeat the ends of justice given
that from the evidence, the respondents caveat was to warn the whole world
about their interest in the land.
21
It is trite learning that any person desirous of acquiring property ought to
properly investigate the root of title of his vendor. In this case there is no
evidence of such prudent search conducted by the Defendants. In their own
pleadings they asserted that they only inspected the title deeds of the
Assignor coupled with the permit for construction and were satisfied. The
record does not also show that they even sought professional advice before
entering into the transaction. In my view, the steps they claim they took are
not the adequate steps of a prudent purchaser of this particular property.
Indeed, had they extended their search to the Lands Department, Kumasi,
the statutory body that kept official records of lands in Kumasi, they would
have known that the land was encumbered.
In OSUMANU v OSUMANU AND ANOTHER [1995-96] 1 GLR 672-689
their Lordships held that
“Any intending purchaser of property is put on his inquiry to make such
investigations as to title as would enable him to rely on the plea of
bona fide purchaser for value without notice. If he failed to make such
inquiries, he acted at his own peril if subsequent events disclosed that
there was a valid challenge to the title he acquired.”
In any event, on the clear facts of this case, showing the prompt and
sustained efforts on the part of the family to protect their property, the
well known case of
MAHAMA HAUSA AND OTHERS v. BAAKO HAUSA AND ANOTHER
[1972] 2 GLR 469-487, defeats their plea of bona fide purchaser for value.
It was held in that case, that:
“Even if the second defendant was a bona fide purchaser from the first
defendant the law permits sales of family property to be avoided in
situations where prompt action is taken by the family concerned or its
22
representatives to prove that the sale had been made without the
consent of the principal members of the family. And in this case there
was no evidence that the plaintiffs had slept on their rights. Agbloe v.
Sappor (1947) 12 W.A.C.A. 187; Nelson v. Nelson (1951) 13 W.A.C.A.
248; Owiredu v. Moshie (1952) 14 W.A.C.A. 11; Bayaidee v. Mensah
(1878) Sar.F.C.L. 171; Insilea v. Simons (1899) Sar.F.L.R. 105 and
Manko v. Bonso (1936) 3 W.A.C.A. 62 cited.”
These are the reasons for disallowing the appeal.
G. T. WOOD (MRS)
CHIEF JUSTICE
J. ANSAH
JUSTICE OF THE SUPREME COURT
J. V. M. DOTSE
JUSTICE OF THE SUPREME COURT
ANIN-YEBOAH JSC :
The Respondent to this appeal brought an action at the High Court, Kumasi
against the appellants herein for declaration of title to a piece or parcel of
land known as plot No. 10 Block VIII Guggisberg Road, Adum, Kumasi. In his
statement of claim, the respondent pleaded that he was bringing the action
as a principal member of the Nana Ama Serwah family of Nsuase, Adum,
Kumasi.
Apart from the declaration, he also sought general damages for
23
trespass and an order for perpetual injunction against the appellants and their
privies.
Both in the statement of claim and the evidence led on behalf of the
respondent herein, the case for the respondent appears to be simple.
According to the respondent, his two ancestors, namely; Nana Kwaku
Bewuawu and Nana Ama Serwaa Nsuase acquired a larger piece of land of
which the disputed land forms part. The two ancestors of the respondent put
up dwelling houses and lived there since 1906. According to the respondent,
the Kumasi Health Board entered upon the land and demolished the two
houses to provide public place of convenience for the neighbourhood. The
Kumasi Health Board, however, never utilized the two plots and the family
which was not paid any compensation, petitioned the Asantehene for the plot
of land in dispute, described and known in these proceedings as Plot No. 10
Block VIII Guggisberg Road, Adum, Kumasi. It was part of the respondent’s
case that the family was granted a lease covering the land in dispute. One
Michael Reginald Asante, a member of the family acted as its representative.
It was part of the respondent’s case that the said Michael Reginald Asante’s
name was on the lease because he represented the family by virtue of being
the only educated person in the family. The said Michael Reginald Asante
due to financial problems used the lease as security for a loan from one Kofi
Aboagye .The property was redeemed in about eight or nine years of the
transaction.
The same Michael Reginald Asante, subsequent to the
redemption of the property, pledged the land to one Madam Grace Nsiah for a
loan.
According to the respondent, this was done without notice to the
family, so the family approached Madam Grace Nsiah who was then sick and
died later without any conclusive transaction with her. It was thereafter that
the family of the respondent filed a caveat at the Land’s Department, through
Messrs Mmieh and co. a firm of solicitors, to warn prospective purchasers or
lessees of the land.
Respondent concluded that the family heard nothing
from any official of the Lands Department till the appellants were found on
the land putting up a structure thereon.
24
The Appellants controverted most of the allegations, both in the pleadings
and evidence led at the trial.
Several documentary evidence were placed
before the trial court in the form of exhibits covering various transactions on
the land at different times. The appellants contended that they acquired the
property by purchase from the La petite Chemists. It was indeed pleaded in
the statement of defence that the original lessee was Michael Reginald Asante
who acquired the land from the Government of Ghana by a lease on behalf of
the Golden Stool. Michael Reginald Asante transacted with one Kofi Aboagye
by a deed in 1969 and later the said Kofi Aboagye sold his interest to Michael
Reginald Asante in 1978 by deed. In 1981, Michael Reginald Asante sold his
interest in the land to one Grace Nsiah who died intestate in 1995. Letters of
administration for her estate was successfully granted by the High Court,
Kumasi to her successor one Rose Kudolo in 1996. It was Rose Kudolo as
personal representative of Grace Nisah who executed a deed and transferred
her interest to La petite Chemists Limited. In April of 1999, the first appellant
herein acquired by deed the interest of La petite Chemists Limited and
directed
that
the
lease
be
made
in
the
name
of
the
second
defendant/appellant herein in trust for one Gifty Kusi, then a minor.
The root of title of the appellants led him to plead the defences of estoppel,
laches, conduct and acquiescence against the appellant. The defence of bona
fide purchaser for valuable consideration was not formally pleaded and same
would be addressed later in this opinion.
The parties at the trial court settled on few issues for determination given the
fact that most of the facts were not in controversy. The learned trial judge
entered judgment for the appellants on the 5/04/2001 dismissing the entire
claim and granting reliefs sought in the counterclaim. In his judgment the
trial judge, in my respectful view, evaluated the evidence in detail and gave
adequate reasons for not believing the respondent.
25
Indeed, he pointed out the inconsistencies in the evidence of the respondent
and his witnesses in the root of title of the family. The learned trial judge
delivered as follows:
“In law, a party seeking a declaration of title to land must equivocally show
his root of title of the land and acts of continuous possession thereof. The
plaintiff’s evidence alleging original acquisition of the subject land by his
ancestors was weak”
Indeed a trial judge after evaluating the evidence and coming out with such a
damning finding of weakness in a claim for declaration of title of land would
dismiss the claim. This he did. See AKOTO II & ORS V KAVEGE & ORS
[1984 – 86] 2 GLR 365 CA.
He, however, in his judgment held among other things that the first
defendant/appellant had established his root of title and granted the
counterclaim. He was satisfied that the lease originally granted in this case as
the“Parent lease” that is Exhibit 6 was “granted to Michael Reginald Asante
simpliciter, without any trappings of any family”. He proceeded to further hold
all subsequent transactions involving Michael Reginald Asante admitted in
evidence as Exhibits 5 and 6 made no reference to the family and therefore
the allegation that Akosua Mansah and Akosua Nyameba redeemed the
property was not true.
Upon appeal to the Court of Appeal several grounds were argued to persuade
the court to set aside the judgment of the trial court.
In its judgment dated the 15/04/2005, the Court of Appeal was of the opinion
that the property was family property and that the learned trial judge had
failed to consider Exhibits “B”, a petition sent to the Asantehene by the family
to reclaim the land. According to the Court of Appeal, any interest which
Michael Reginald Asante obtained or held in the property “did not oust the
26
rights and interests of his family” irrespective of his name appearing in
several documents of title tendered in evidence.
The appellants have appealed against the unanimous decision of the Court of
Appeal on several grounds.
The Court of Appeal relying on the case of
BOTCHWAY V OKINE [1987-88] 2 GLR 1 CA held, inter alia, that failure of
the appellants herein to comply with the mandatory provisions of sections 19
and 27 (1) and (2) of the Land Registry Act, Act 122 negated the title of the
appellants. Indeed the appellants were solely relying on the purchase from
La petite Chemists Limited and prior transactions to support their root of title
to the acquisition of the property in dispute. The argument before this court
on the above holding by the Court of Appeal was to the effect that the
learned justices of the court of appeal had misconceived the principle in the
BOTCHWAY’S case supra. This argument, ably presented, was to the effect
that there was no denial by the parties herein that the documents were not
registered or inadmissible. It was therefore not open to the Court of Appeal to
raise this statutory condition against them.
From the evidence, all the documents establishing the root of title of the
defendants were admitted without objection as Exhibits1, 3,4,5,6 and 7. The
Evidence Act, NRCD 323 of 1975 section 6 places a simple duty on a party in
a trial when evidence is being offered against him. He is enjoined by basic
rules of evidence under common law, statutory provisions notwithstanding, to
object to any evidence tendered against him if the grounds for objection
exists to enable the court to rule on.
I concede that if inadmissible evidence is not objected at the trial court, an
appellate court is duty bound to discard it on appeal and rely only on the
admissible evidence to give its judgment. See KOOM V AWORTWI [1929]
FC 26-29, 404 and POKU V FRIMPONG [1972] IGLR 230 CA.
However, in this case, it was not the case that the various exhibits referred to
above tendered on behalf of the appellants were inadmissible. The admission
of the documents without objection at the trial court and the fact that none of
27
the documents in issue suffered from any legal defects was sufficient for the
trial judge and the court of appeal to rely on the case of WESTERN
HARDWOOD ENTERPRISES LTD V WEST AFRICAN ENTERPRISED
LTD. [1998-99] SCGLR 105 to admit them in evidence.
In my respectful
opinion, if the learned judges of the court of appeal had considered the fact
that there was no need for further proof of the leases they would not have
relied on BOTCHWAY V OKINE (supra) to hold that the documents of title
duly registered were not properly in evidence as their tendering was counter
to the statutory provisions referred to above. In my opinion, it is when the
issue of registration of a document crops up in proceedings that would call for
compliance with sections 10, 11 and 12 of Act 122.
It does appear that throughout the proceedings of 5/12/2000 when the first
defendant/ appellant herein gave his evidence and tendered all the registered
documents
on
the
land
in
evidence
learned
counsel
for
the
plaintiff/respondent herein raised no objection about their admissibility or
registration. No wonder learned counsel for the appellant referred us to the
oft-quoted case of FORI V AYIREBI [1966] GLR 627 SC to support his
contention that failure on the part of counsel to object to the evidence
tendered against his client made it unnecessary for further proof of the
evidence not challenged. I think this is settled proposition of law and it would
be mere pedantry to cite several decided cases on it. The Court of Appeal,
however, held in this case as follows:
“My understanding of the holding in BOTCHWAY V OKINE (supra), is that
the mere production in court of an original deed which on Its face shows a
land registry number, is not sufficient evidence of registration and that for
such a deed to be receivable in evidence, there must be a compliance with
the procedure laid down in sections 19 and 27 [1] and [2] of Act 122”.
My understanding of Osei –Hwere JA [as he then was] in his pronouncement
on the effect of the above sections is that the court is enjoined to ascertain
28
who has a valid title irrespective of the production of a registered document
in evidence which per se does not confer statutory title on a holder. The
learned judge did not, in interpreting the above sections, declare that noncompliance with the sections of the statute defeated the title of the holder.
As learned counsel for the Appellant pointed out in his written statement of
case, the fact that the respondent did not call for further proof by raising
many question as to the admissibility or otherwise of the documents, the trial
court, and in my opinion the Court of Appeal for that matter, was bound to
consider the documents in evidence.
I am therefore of the opinion that the learned judges of the Court of Appeal
were in error in applying the BOTCHWAY case to enter judgment for the
respondent.
Another ground of appeal relates to the failure on the part of the court of
appeal to recognize that the appellants were bona fide purchasers of the
disputed property for value without notice. The evidence on record which to
me was not disputed was that the defendants/appellant bought the property
from La petite Chemists Limited for valuable consideration. The root of title
to the property shows that the property was in the name of Michael Reginald
Asante as the original lessee. Asante assigned the original lease to Grace
Nsiah with the consent of the Republic of Ghana and same was also
registered as Exhibit 3. Upon the death of Grace Nsiah one Rose Kudolo as
administrator assigned the property to La Petite Chemists Limited in Exhibit 1.
On 12/04/1999, La Petite Chemists Limited sold the property to the first
defendant which lease was tendered as Exhibit 7. The question that I may
respectfully ask is this: with this abstract of title what was expected of the
appellant as a prudent purchaser of a vacant land? If the property in dispute
was a tenantable one, the presence of the tenants would have alerted the
appellants to inquire from the tenants to know who put them there and to
whom rents were paid.
Such could constitute constructive notice to any
29
prudent
purchaser.
See
CRAYEM
V
CONSOLIDATED
AFRICAN
SELCETION TRUST LIMITED [1949] 12 WACA 443 and USSHER & ORS V
DARKO 1977 I GLR 476 CA. At the time of the assignment from La petite
Chemists Limited to the appellants there was a foundation with iron rods
which had been done by La Petite.
The appellants, through the first
appellant, spelt out the abstract of title to the land by recounting the various
transactions from the first lease between the Government of Ghana and the
original lessee Michael Reginald Asante, dated 1963 as Exhibit 6. All the
subsequent transactions to the last assignment were tendered to show that
over a period close to forty years the property was not encumbered in any
way.
The caveat which according to the respondent was allegedly placed on the
land was categorically denied by DW1, who as a representative of the Lands
Department gave a vivid abstract of title to the land in dispute.
In my
opinion, in the absence of the caveat, a prudent purchaser of the land in
dispute was not required to do more than inspection of the documents and
inspection of the land to ascertain whether it was not physically encumbered.
Section 36(2) of the Conveyancing Act, 1973 NRCD 175 fortified the
appellant’s position as they had the first lease dated 1963. In my respectful
view, there was evidence to establish a defence of bona fide purchaser for
valuable consideration without notice. It may be said that that defence was
not pleaded as required of a defendant under Order 19 rule 16 of the High
Court [civil Procedure] Rules 1954 LN 140 the rules of court as it then stood.
The repealed rules have been re-enacted as Order 8 Rule (1) of the High
Court (Civil Procedure) Rules, CI 47 of 2004. It has been said in cases like IN
RE ROBINSON’S SETTLEMENT, GRANT V HOBBS [1912 I CH 717, NATIONAL
OMNIBUS SERICES AUTHORITY & OR V. OWUO [1969] CC 158 CA that
the rule is not inflexible and could be applied if the other party would not be
taken by surprise. See also ASARE V BROBBEY [1971] 2 GLR 33 I CA in
which Archer JA [as he then was] explained the flexibility of the rule in
appropriate cases.
30
In this case, I am of the opinion that the High Court and the Court of Appeal
could have held without any inhibitions whatsoever that the appellants were
bona fide purchasers for valuable consideration without notice as the
evidence placed before both courts were more than adequate to sustain the
plea of such a purchaser. James LJ in PILCHER V RAWLINS [1871-72] 7 LR
CH APP 259 said of the plea at page 269-269 as follows:
“I propose simply to apply myself to the case of a purchaser for valuable
consideration without notice, obtaining upon the occasion of his purchase and
by means of his purchase deed some legal estate, some right, some legal
advantage and according to my view of the established law of this court, such
a purchaser’s plea of a purchase for valuable consideration without notice is
an absolute unqualified unanswerable defence and an unanswerable plea to
the jurisdiction of this court. Such a purchaser when he has once put in that
plea may be interrogated and tested to any extent as to the valuable
consideration which he has given in order to show the bona fides or mala
fides of his purchase and also the presence or the absence of notice; but
when he has gone through that ordeal and has satisfied the terms of the plea
of purchase for valuable consideration without notice then according to my
judgment this court has no jurisdiction whatever to do anything more than to
let him depart in possession of that legal estate, that legal right that legal
advantage which he has obtained whatever it may be.
In such a case a
purchaser is entitled to hold that which without breach of duty he has
conveyed to him. [Emphasis mine]
I proceed to hold that the appellants were clearly bona fide purchasers of the
property for valuable consideration without notice of any encumbrances
whatsoever.
The other grounds of appeal argued together relate to the evidence led and
the reversal of same by the Court of Appeal. In my respected opinion, the
trial judge was dealing with the property of one Michael Reginald Asante who
had died. The family contended that it was a family property. However, the
trial judge in an effort to come to the right conclusion subjected the evidence
31
to evaluation. He pointed out the apparent inconsistencies in the evidence of
the respondent and his witnesses and he gave adequate reasons for
disbelieving them.
The respondents’ maintained throughout the trial that the property is a family
property and for that matter, the said Michael Reginald Asante had no
authority to pass title without their knowledge and consent. The learned trial
judge found against them that it was not so. On the facts, the reason why
Michael Reginald Asante’s name was used to procure the lease was
incomprehensible. It has never been the law or practice in this country that
only literates could represent the family when a family property is to be
documented for and on behalf of a family.
After the family had allegedly
redeemed the property from Kofi Aboagye as they claim, Michael Reginald
Asante dealt with the property by assigning the same property to one Grace
Nsiah for valuable consideration.
One may respectfully ask a simple question: Why did the family not demand
from Michael Reginald Asante the surrender of the lease to prevent similar
incidents in the future?
No reason was forthcoming from the family
explaining why after allegedly paying money to redeem the property they
never found it prudent to ask for the lease from Michael Reginald Asante.
They never in the course of the evidence explained why they never took any
step at all to prevent future occurrence of paying money to redeem their own
property. This probably led the appellants to plead estopel by conduct, laches
and acquiescence against the respondent as they did not act to prevent
Michael Reginald Asante from exercising ownership over the property when at
the same time he held the legal title to it.
It is not the law that once a family owns a property it can not divest itself of
same. The family like any entity or individual is equally capable of losing its
property by sale, gift and other means like even lawful acquisition by the
government under any existing law. A successful plea of laches, estopel by
32
acquiescence etc could also deny the family of their property in legal
proceedings. In this case, however, the learned trial judge in coming to the
conclusion that the property was not a family property assigned sufficient
reasons for it. It was his duty as a trial judge to apply the law to the facts
presented. I have perused the evidence and found that he was right in his
conclusions on the law and the facts. I think, with due respect to the learned
Justices of the Court of Appeal, they were in error in coming to a different
conclusion as the reasons for doing so was not convincing enough in law.
It was clear from the evidence that the respondent, PW1 and PW2 are
members of the same family. They all came to repeat the pleadings on oath
without more. In my opinion, they could have called further evidence from
Kofi Aboagye’s family or Madam Grace Nsiah’s family to show how the family
had taken steps to reclaim the property if indeed these were actually done.
The law frowns upon this as same is settled in cases like MAJOLAGBE V.
LARBI 1959 GLR 190 and Zambrama V Segbedzi [1991-2] GLR 221 CA.
The duty of the Court of Appeal when reviewing the evidence was to look at
the findings made to ensure that those findings were supported by the
evidence on record. To reverse findings of facts made by the trial judge for
the reasons given in the judgment, with respect, was unsatisfactory. Apaloo
JSC [as he then was] in his dissenting opinion in the case of R.T. BRISCOE
[GHANA] LTD V PREKO [1964] GLR 322 said at page 330 as follows:
“Proof as I understand it, is the conviction that evidence of certain facts carry
in the mind of the judge or jury. It is not pre-ordained and has no objective
existence, capable of discovery either by logic or analysis.
I think what
suffices in each case must vary depending on the nature of the case, and the
person to whom the evidence is addressed. I believe that is the reason
behind the golden rule, that an appeal Court should not disturb a
finding of fact made by trial court if there be evidence to support
it”(emphasis mine)
33
As the reasons canvassed for reversing the findings made by the learned trial
judge do not appear convincing enough in a case which the trial court was
dealing with a property which the deceased had in his lifetime exercised
virtual control over by pledging and assigning etc without any apparent and
clear interruption by the family, his findings under such circumstances could
not be faulted.
Several decided cases like BISI V TABIRI alias ASARE
[1987-88] IGLR 360, MOSES V ANANE [1989-90] 2 GLR 694 and
AMANKWAH V NSIAH [1994-95] GLR 758 established the principle that
evidence against a deceased person must be scrutinized with the utmost
suspicion. The trial judge in my opinion was right and arrived at his findings
by considering the evidence on both sides in detail.
In my opinion, the appeal succeeds and the judgment of the court of appeal
is hereby set aside and in its place I restore the judgment of the High Court,
Kumasi dismissing the original claim and granting the reliefs on the
counterclaim.
ANIN YEBOAH
JUSTICE OF THE SUPREME COURT
BAFFOE-BONNIE JSC:The plaintiff/respondent sued in the High Court. He lost. He appealed to the
Court of Appeal. He won. This appeal before this court therefore is by the
defendant/appellant seeking a reversal of the judgment of the court of appeal
and for the decision of the trial High Court Judge to be re-instated. The facts
of this case are simple.
The President of Ghana per the Lands Commission, acting as trustees for the
Golden Stool of Ashanti, gave a 99 year lease-hold interest in the parcel of
land in issue to one Michael Reginald Asante on the 1st of April 1961. The
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lease was registered as Title No. 2686, Serial No. 7007 on 28th December
1963. This was tendered at the trial as exhibit 6. Thereafter, Asante
exercised various acts of ownership over the property. By a deed of
assignment dated 17th March 1969, Asante assigned the property to one
Opanin Kofi Aboagye. The Assignment was again duly registered as Serial No.
853/ 78.At the trial it was admitted without objection and marked as exhibit
5.
By a deed of Assignment Kofi Aboagye re-assigned the property to Asante,
the original Assignor. This was also registered and at the trial this deed was
also admitted without objection and marked as exhibit 4. Asante reassigned
the property by a deed dated 12th June 1981 to Grace Nsiah which was also
registered and admitted in evidence without objection as exhibit 3. Nsiah
died in 1995 and by a registered deed dated 4th February 1999, Rose Kudolo,
her daughter and administrator of her estate, assigned the land to Lapetite
Chemist Ltd this deed was also registered and tendered as exhibit 1. By a
deed dated 12th April 1999, Lapetite sold, for valuable consideration, the
property to 1st Defendant’s wife, Vida Kusi, who holds the property in trust for
their daughter, Gifty Kusi Ampofowaa, a minor. The registered deed was
admitted without objection as exhibit 7.
All the assignments listed above, it must be noted, were sanctioned by the
state
It is the case of the Respondent herein that the land in dispute is actually
their family property. At a certain point in time, together with other lands, it
was acquired by the government for public use. That when the government
failed to make use of the land so acquired, Asante and some other members
of the family were mandated to take steps to have the land in issue restored
to Asante’s family as family land. In furtherance of this objective, a Petition
was drafted and allegedly signed by Asante and another member of his
Family, Osei Asibey Mensah, who gave evidence as PW2. It is the
Respondent’s case that eventually the land was restored to the family and
35
Asante who was leading the restoration bid took a lease in his name. It is
their case therefore that since Asante acted on behalf of the family, as
evidenced by the petition in exhibit B, he ought to be taken as a trustee for
the family and so the property belongs to the family.
At the High Court, Kumasi the respondents who were plaintiffs sought the
following reliefs:
1. A declaration that the parcel of land designated as Plot No. 10, Block
VIII Guggisberg Road, Adum Kumasi is the Property of the Plaintiff’s
Family.
2. General Damages for trespass
3. An order of Perpetual Injunction to restrain the Defendants, their
Assigns, Workmen and all other person’s claiming through or under
them from any manner interfering with the Plaintiff’s Family Possession
and enjoyment of the said property.
The High Court gave judgment in favour of the Defendant therein who is the
Appellant in this Court. Respondents in this Court appealed to the Court of
Appeal which overturned the decision the High Court Kumasi. Dissatisfied with
the Judgement, the Defendant- Respondent has appealed to the Supreme
Court on the following grounds:
1. The decision of the Court of Appeal setting aside the judgment of the
trial Court for non-compliance with section 27 (1) and (2) of Act 122 is
not supportable in law.
2. The Court of Appeal failed to pay due cognisance to the fact that the
Plaintiff’s claim disputes the right, title and interest of Asante, who died
long before the institution of the action.
3. The Court of Appeal failed to recognise that the defendants were bona
fide purchasers of the disputed property for value without notice
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4. The Court of Appeal erred in not invoking its power to amend the
declaration of title to the disputed property in favour of the 1st
defendant to a declaration of title in favour of the second Defendant as
the trustee of Gifty Kusi Ampofowaa, a minor.
5. The Judgment of the Court of Appeal is against the weight of evidence
I propose to deal with only two grounds which in my opinion will dispose of
the appeal.
1
The decision of the Court of Appeal setting aside the judgment of the
trial Court for non-compliance with section 27 (1) and (2) of Act 122 is not
supportable in law.
2 The Court of Appeal failed to recognise that the defendants were bona
fide purchasers of the disputed property for value without notice.
GROUND ONE
Even though the fact of registration of the various conveyances was never an
issue at the trial High Court, on appeal the respondent raised for the first time
Act 122 sections 19 and 27(1) and (2) and submitted that the failure of the
appellant to strictly comply with its provisions was fatal to the admissibility of
the said documents in evidence. Counsel cited the case of Botchway v.
Okine 1987-882 GLR 1 CA
This submission seemed to have found favour with the Learned Justice of
the court of appeal. In their judgment the court of appeal held as follows:
“.......It seems to me therefore having regard to the principle expressed in
Botchway vs Okine that even though the appellant admitted the fact of
registration of the respondents documents in this case it was incumbent
on the respondents to, as a matter of law, prove the registration of their
37
documents or conveyances in the manner or according to the procedures
enshrined in sections 19 and 27 [1] and [2] of act 122.
The failure of the respondents to comply with the requirements of the Act
therefore negated the verdict of the trial judge that the respondents had
proved their title to the property in dispute on the basis of the registered
documents by them”
Section 19 of Act 122 provides as follows:
A registrar shall, upon application, allow searches to be made at all
reasonable times in any book, register or list in his custody, and shall upon
request give certified copies of, or extracts from, any entry in any such
book, register or list or of any duplicate or copy of a registered instrument
filed in his register
27 (1) and (2)
27 (1) “Every copy or extract or certificate of registry purporting to be signed
by a registrar shall be receivable in evidence in any Court without further or
other proof thereof, unless it is proved to be a forgery.
(2) The party proposing to use it in evidence in a civil case shall give notice
of his intention in writing to the opposite party, and at the same time shall
deliver to him a copy of the copy or extract and of the certificate thereon; and
on proof of the service or on
admission of the receipt of such notice and copy, the certified copy or extract
shall be received in evidence if the Court is of opinion that the service has
been made in sufficient time before the hearing to enable the opposite party
to apply for a search of the original book or the register from which the copy
or extract has been taken.”
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The Court of Appeal interpreted these provisions, citing the Botchway case,
to say the documents were not properly tendered in court. In my respectful
view the Court of Appeal misconstrued the provisions of the act.
The evidence before the Court of Appeal was that at the trial when the
Appellant
sought
to
tender
the
various
registered
documents,
the
Respondents did not raise any objection to them at all in any form and they
were all admitted in evidence by the trial Judge. So what was the appellant to
prove again?
It is a basic principle in evidence that no evidence is necessary to prove an
admitted fact. This is so basic as to admit of no dispute. In fact at the
summons for directions stage it is only unadmitted or denied facts that are in
issue and need to be proved. This principle has found expression in several
decided cases.
Ollennu JSC said this in the case of Fori v Ayirebi 1966 GLR 627 SC at Pg
647
“ When a party makes an averment and that averment is not denied no
issue is joined on that averment and no evidence need be led. Again when a
party gives evidence of a material fact and is not cross-examined upon it, he
needs not call further evidence of that fact.”
Aikins JSC said, “Where the pleadings of the parties were ad idem that there
was a valid lease between the Apowa stool and TBL, the plaintiff was not
bound to lead evidence to emphasise the validity of such lease.” See
Western Hardwood Enterprises Ltd V. West African Enteprises Ltd
1998-99 SCGLR 105
It was the respondent who first introduced the registered documents into the
fray in his statement of claim. The appellants then raised in their respective
statements of defence the fact of the existence of the various documents and
39
their intention to rely on them. This fact was acknowledged in the replies to
the respective statements. Two of such acknowledgements will suffice here;
In the reply to the 1st appellant’s statement of defence he said in paragraphs
4 and 5
“4 The plaintiff admits paragraph 6, 7, and 8 of the statement of defence but
states that the said transactions were without the knowledge consent and
occurrence of his family and therefore did not operate to transfer any interest
to the persons mentioned therein.
5 The plaintiff admits paragraph 9, 10, 11, and 12 of the statement of
defence of the 1st defendant and state that the transactions stated therein
could not operate to transfer any interest to the persons mentioned therein.
There were similar acknowledgements in the reply to the defence of the 2nd
appellant. From these admissions, clearly, the appellant had been relieved of
the burden of proving the existence or fact of registration! What the
respondent at this stage was challenging was not the fact of registration but
the value of the registered document saying that they were signed without
the consent and concurrence of the family. The court of appeal obviously misappreciated the import of the Botchway case in relation to sections 19 and
27(1) and (2) of act. In the Botchway case the fact of registration was in
dispute. At the Court of Appeal Counsel submitted that the trial judge had
raised the registration issue suo motu but the Court of Appeal held in holding
1,
“it was certainly a misconception to argue that the trial judge suo motu raised
the point of registration of the plaintiff’s document as the co-defendant in his
defence specifically denied the said registration and put the plaintiff to strict
proof thereof.”
In holding 2a the court said,
40
“The plaintiff’s document exhibit A, could not be held to be a registered
document which was effective to pass any title to the plaintiff under the Land
Registry Act,1962 (Act122) s.24(1)because:
The mere production in court of the plaintiff’s original title deed exhibit A,
which showed on its face the land registry number was not sufficient evidence
of registration
It was clear from sections 10 11 and 12 of act 122 that the fact of
registration of a document on land must be ascertained from the copy or
duplicate of the instrument filed. Sections 19 and 27 (1) and (2) provided two
procedural stages to establish proof of registration.
a.
an application to the registrar for the relevant copy or extract or
certificate of registration and
b. the service on the other party of notice of intention together with delivery
to him of the relevant document. And it was only when the document
presented in court had on its face emanated from the registrar and there was
proof of such notice that it was receivable in evidence without further proof”
I do not see how this quote taken from Botchway V Okine could be
construed to mean that for a deed to be receivable in evidence there must be
compliance with the procedures laid down in sections 19 and 27 1 and 2 of
Act 122, as the Court of Appeal emphatically said.
My understanding of this quote is that when there is a dispute as to the fact
of registration then the procedure laid down in the act could be used to prove
such fact. If there is no such dispute the issue did not call for any proof to
resort to section 27(1) and (2). And it is also not true that a document that
has not gone through such verification is not receivable in evidence. What the
section says is that when the document goes through such verification it is
admissible without further proof. So that, it is possible to prove the fact of
41
registration by other means other than through the procedure laid down in
section 27 (1) and (2).
Tied to my position of no need to prove admitted facts is the provision on
when objections to the admissibility of a document should be taken.
Section 6 of the Evidence Act 1975, NRCD 323 provides as follows:
1) In every action, and at every stage thereof, any objection to the
admissibility of evidence by a party affected thereby shall be made at the
time the evidence is offered.
(2) Every objection to the admissibility of evidence shall be recorded and
ruled upon by the court as a matter of course.
(3) Where a document is produced and tendered in evidence, and rejected
by the court, it shall be marked by the court as having been so tendered and
rejected
The provision reproduced above provides the rules for admissibility of
evidence generally. Act 122 is specific to the tendering of registered title
deeds. So that if the specific procedure in Act 122 was not complied with
section 6 of the evidence decree guides the Respondent on what to do and
the time to do same. Not raising the objection at that point must be
considered a waiver of the right. One therefore cannot be heard on appeal to
be raising the objection he ought to have raised at the trial, more so when
the Respondent is not disputing the fact of registration.
It appears that the Respondent is seeking to use the Appeal process to cure
defects in his case as conducted at the trial. It will be an abuse of the Court
process to allow them to do so.
It is my respectful view that the Court of Appeal got it wrong on this point.
42
The other issue that I will like to consider is whether or not the Appellant in
this Court was a bona fide purchaser for valuable consideration without
notice.
It is the Respondents contention that the Appellant should be fixed with
notice of the Respondents family’s rival equitable interest so as to nullify the
transfer of the property from Rose Kudolo, daughter of Nsiah to Lapetite
Chemist Ltd, a transaction which was also registered and tendered as exhibit
1. It is their case that once La petite is fixed with notice of the respondent’s
interest any subsequent transfer will be affected by the notice. The notice to
Rose Kudolo is the caveat they allegedly filed in respect of the estate of Grace
Nsiah.
It is worth noting that it was after the said caveat they seek to fix the
Appellants with that Lapetite registered their title, which subsequently
conveyed title to the Appellant. In any case it was the same Lands
Commission in whose records the caveat was allegedly filed which registered
Lapetite’s title. If the Respondents were unable to successfully prevent
Lapetite from registering the alleged title passed on to them by Rose Kudolo,
then why now?
DW1, Mr Asante Manu Evans from the lands commission secretariat, told the
court in his evidence-in-chief that there was no evidence of a caveat filed by
Mmieh and Co on file. During cross examination the following took place:
“Q
I put it to you that a copy of exhibit A (the caveat) was delivered to
Lands Commission Secretariat, Kumasi.
A No. I have studied the file when the subpoena was received and I was
asked to attend court. If it had been delivered, it would have been on the file.
Q
If exhibit A were on your file you would have drawn the attention of
anyone who wanted to deal in respect of the land.
43
A The caveat is an injunction that would stop us from any transaction unless
a court order was received.”
So from this wherein lies the notice that the present lessee could be fixed
with?
Again from the series of transactions carried out in respect of this land even if
the court accepts the respondent’s family’s interest in the property there is no
denying who actually held the legal title and who held the equitable title if
any. In fact from their own pleadings the plaintiffs admit that Michael Asante
held the legal title while the Family held the equitable title. From the narration
of the root of title on the various registered documents on this land the said
Michael Asante dealt with the property as if it was his own and the family held
him out by their inaction as the legal owner of the property. This is borne out
by the rather half-hearted attempts they allegedly made to assert their
interest in the property.
For example, the family sat by and allowed Michael Asante to take the
property in his name even though he was allegedly pursuing the property on
behalf of the family. Their reason was that Asante was the only educated
member of the family. This turned out to be a lie as PWI was found to be
equally, if not better, educated.
Again, when Asante sold the property to
Aboagye, the respondent said it was some members of the family that
allegedly paid off the debt and redeemed the property. Yet after the alleged
redemption the property was re-assigned to Asante. Again, they sat by as
Asante assigned the property to Nsiah in 1981 and never did anything until
Nsiah died in 1995, fourteen years after the assignment, when they allegedly
filed a caveat to show their interest in the property!
In the case of Ussher v Darko 1977 1GLR 476 at p 489, Apaloo JA (as
he then was) said of legal and equitable titles in relation to the principle of
innocent purchaser for value without notice:
44
“If the plaintiff can show that he obtained the legal estate for value without
notice of Sir Edward’s equitable title he takes free from it. As was said in
Pilcher v.Rawlins (1872) 7 Ch App. 259 at p.269, the plea of a purchaser for
value without notice is an absolute, unqualified, unanswerable defence
against the claims of any prior equitable owner.”
Interestingly all these claims of the family are being made against the
backdrop that Michael Asante is dead and unable to defend himself. It has
always been advice to judges to look with suspicion when claims are made
against deceased persons. In the case of In Re Agyepong(deceased),
Poku v. Abosi (1982-83) GLR 254 the Court of Appeal noted,
“The well established rule of law is that a person making a claim against the
estate of a dead man cannot sustain that claim by his or her own deposition
and unless there be some corroboration of it, something to satisfy the court
that the assertion is literally true, the court cannot take notice of it.”
It is my view that if the Court of Appeal had adverted its mind fully to this and
also the principle of ‘innocent purchaser for valuable consideration without
notice’, it would have decreed title in the appellant.
It for these reasons that I will also allow the appeal, reverse the decision of
the Court of Appeal and reinstate the judgment of the trial High Court.
P. BAFFOE-BONNIE
JUSTICE OF THE SUPREME COURT
COUNSEL
S. KWAMI TETTEH FOR THE APPELLANTS
MICHAEL GYANG OWUSU FOR THE RESPONDENT
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