ADU-AMANKWAH VRS. KASSIM AND ANOTHER (LDA/0002/2023) [2024] GHAHC 145 (18 January 2024)

IN THE SUPERIOR COURT OF JUDICATURE IN THE HIGH COURT OF JUSTICE, LAND DIVISION HELD IN ACCRA ON THURSDAY, THE 18TH DAY OF JANUARY, 2024 BEFORE HIS LORDSHIP WILLIAM APPIAH TWUMASI JUSTICE OF THE HIGH COURT JUDGE SUIT NO. LDA/0002/2023 FELIX ADU-AMANKWAH … PLAINTIFF/APPELLANT VRS 1. 2. HAWAKU KASSIM … DEFENDANTS/RESPONDENTS OSEI KWAME BONSU PARTIES: ABSENT ========================================================== JUDGMENT This is an appeal against the Ruling of the District Court, Weija, Accra, dated the 22nd of June, 2022, Coram: Her Worship, Ruby Ntiri Opoku (Mrs.) contained at pages 59 to 64 of the record of appeal. The said ruling went in favour of the Defendant/Respondent (hereinafter called the “Defendant) against the Plaintiff/Appellant (hereinafter called the “Plaintiff) Page 1 of 13 A brief background leading to this appeal was that the Plaintiff caused the instant writ of summons and statement of claim to be issued out against the defendant claiming as follows: a) Declaration of title to the land in dispute. b) An order for recovery of possession of the disputed land or in the alternative; c) An order directed at the Defendants to pay to the Plaintiff the full cost of the land in dispute. d) An order directed at the Defendants to construct a drainage system to resolve the current problem of flood that the Plaintiff suffers at his residence anytime it rains and which has been occasioned by the Defendants 4-storey building project. e) Perpetual injunction restraining the Defendants, their assigns, workmen from interfering with the disputed land in any whatsoever. e) General damages against the Defendants for trespass. f) Legal cost at full indemnity. In the accompanying statement of claim, the Plaintiff averred that he acquired a piece of land situate at Sampa Valley, a suburb of Accra in or about March, 1993 from Mrs. Harriet Quaye. He further proceeded to register his interest in the land at the Lands Commission with a Land Certificate No. GA1281 Vol. 09, Folio No. 31 of 31st May, 1996. The Plaintiff averred that he went into possession of the said land and developed same for a residential facility and fenced a portion thereof leaving some portions unfenced due to the swampy nature of the land. Page 2 of 13 The Plaintiff stated sometime in 2015, the 2nd Defendant approached the Plaintiff’s wife and informed her that he had been awarded a contract for the construction of drainage facilities in the area where the land in dispute is and requested from her an amount of One Thousand Ghana Cedis (GH₵1,000.00) to fill up and improve the nature of the unfenced portion. The Plaintiff further stated that to his surprise, the 2nd Defendant started developing the unfenced portion and has since constructed a four-storey building despite resistance from the Plaintiff, hence the Plaintiff’s said writ of summons and statement of claim for the reliefs endorsed thereon and first above stated. Upon service of the Plaintiff’s writ of summons and statement of claim on the Defendants, the Defendants per their lawyer, filed their statement of defence on 7th September, 2021 (see pages 7 to 11 of the record of appeal), wherein they essentially denied all the averments contained in the Plaintiff’s statement of claim and stated that the land being claimed by the Plaintiff has not been adequately described for a declaration of title by the Plaintiff. The Defendants stated that the land in dispute was acquired sometime in 1993 by the 1st Defendant from one Daniel Amartey Sampah by way of a lease for 99 years and the purchase price provided by the 2nd Defendant. The Defendants further stated that the result of a search conducted on the land in dispute at the Lands Commission disclosed that the land is a compulsorily acquired State land which was earmarked for an irrigation project in 1979 and as a result the Plaintiff lacks capacity to initiate the instant action for a declaration of title as any title, if any, acquired by the Plaintiff is extinguished and it is only the State that can seek recovery of the land in dispute. The Defendants further stated that Land Certificate cannot be issued to cover a State acquired land unless there is a valid lease from the State and that the Land Certificate and/or registration per se does not confer title on a person and that the equitable doctrines of notice and fraud still applied to set aside a Land Certificate wrongly issued to a person. The Defendants averred that the Land Page 3 of 13 Certificate in the possession of the Plaintiff was obtained by fraud. The particulars of fraud were stated as follows: (a) Plaintiff failed to inform the Lands Commission that the Defendants were in possession of the land at all material times to the issuance of the Land Title Certificate to the Plaintiff. (b) Applying for Land Title Certificate of a compulsorily state acquired land to the knowledge of Plaintiff. (c ) Failing to inform the Lands Commission that he had no title to the land at the material times to the issuance of the Writ of Summons and Statement of Claim. (d) Failing to inform the Lands Commission that he is not the legal owner of the land in dispute The Defendants further averred that having been in possession of the disputed land since 1993 without any hindrance or any challenge from anybody including the Plaintiff, this instant action is statute barred under the Limitation Act, 1972 (NRCD 54). On the 15th of September, 2021, the Plaintiff filed a reply to the Defendants’ defence, wherein he, in substance, denied the averments contained in the Defendants’ Statement of Defence, thereby joining issues with the Defendants. Subsequent to the Defendants’ Statement of Defence, the Defendants filed a “Motion on Notice to Dismiss Suit Pursuant to Order 16 of the District Court Rules, 2009 (C.I 59)”. [See pages 14-19 of the Record of Appeal]. The said motion was accompanied by an Affidavit in Opposition deposed to by the 2nd Defendant, who had stated his full name in their said Statement of Defence as “OSEI BONSU AMPARBENG” and not Osei Kwame Bonsu. The gravamen of the said motion was that the Plaintiff did not have capacity to institute the instant action because per the result of a search conducted at the Page 4 of 13 Lands Commission and as stated above in this judgment the disputed land is a compulsorily acquired land by the State. Upon service of the said motion on the Plaintiff, the Plaintiff also filed an affidavit in opposition on 30th March, 2022, (see pages 20-25 of the Record of Appeal) wherein the Plaintiff vehemently opposed the Defendants’ said motion and deposed that he was clothed with capacity to institute the instant legal action against the Defendants and particularly stated at paragraph 7 reproduced hereunder as follows: “7. That the Plaintiff/Respondent has title over a portion of the land in dispute with the remaining portion of the land compulsorily acquired by the State under an Executive Instrument dated 10th May, 1979 for irrigation purposes. Exhibit A attached to the Applicants’ Affidavit in Support. (Emphasis the Plaintiff’s).” When the case was called on the 31st of March, 2022, Her Worship, the Magistrate, ordered the parties to file written submissions simultaneously and serve same on each other. Both parties complied with the order of the court in respect of the filing of their respective written submissions by the date of the ruling complained about. On the 22nd of June, the Magistrate delivered her ruling in favour of the Defendants and struck out the Plaintiff’s action for want of capacity. The ruling can be found at pages 59-64 of the Record of Appeal. Dissatisfied with the decision of the trial Court, the Plaintiff filed an appeal to this Court Appeal in a Notice of Appeal contained at pages 65-66 of the Record of Appeal based on the following grounds: (a) That the District Magistrate erred in law when despite the huge nuisance suffered in the hands of the Respondent (through a storey building constructed by the Respondents. Page 5 of 13 (b) That the District Magistrate occasioned for the Plaintiff/Appellant a grave miscarriage of justice when despite the positive evidence on record (documentation from the Lands Commission) held that the Plaintiff did not have capacity to institute the action against the Respondents. (c) That the judgment of the Court is against the weight of evidence on record. Additional grounds of appeal were not filed and they are deemed abandoned. A cursory look at the grounds of appeal shows that all the grounds of appeal can be subsumed and addressed under the omnibus ground of appeal, that is “the judgment is against the weight of evidence on record”. Accordingly, grounds (a) and (b) would be addressed under ground (c) which states that the judgment of the court is against the weight of evidence on record. The authorities abound that where an appellant contends that the Judgment is against the weight of evidence, it is incumbent on the appellate court to analyze the entire record of appeal, take into account the testimonies and all documentary evidence adduced to satisfy itself on the balance of probabilities on whether the conclusions reached by the trial court and for that matter the Court below are supported by the evidence on record. See Tuakwa v. Bosom [2001-2002] SCGLR 61. In Akuffo Addo v Catheline (1992) 1 G.L.R. 377, the Supreme Court observed that whenever an appeal is based on the omnibus ground that the Judgment is against the weight of the evidence, the Appellate Court has jurisdiction to examine the totality of the evidence on record properly before it and come to its own conclusions. Page 6 of 13 Thus when an appellant complains that the Judgment is against the weight of evidence, he is implying that there are pieces of evidence on record which if applied properly or correctly, could have changed the decision in his favour or certain pieces of evidence have been wrongly applied against him. It behoves on the appellant to demonstrate the lapses in the Judgment being appealed against. See Djin v. Musah Baako [2007-2008] 1 SCGLR 686 at 687 per holding 1. Again, with regard to the omnibus ground of appeal, in Owusu-Domena v Amoa [2015-2016] 1 SCGLR 790 at 799 Benin J.S.C. succinctly stated the principle as follows: “… The sole ground of appeal that the judgment is against the weight of evidence, throws up the case for a fresh consideration of all the facts and law by the appellate court. We are aware of this court’s decision in Tuakwa v Bosom [2001-2002] SCGLR 61 on what the court is expected to do when the ground of appeal is that the judgment is against the weight of evidence. The decision in Tuakwa v Bosom, has erroneously been cited as laying down the law that, when an appeal is based on the ground that the judgment is against the weight of evidence, then, only matters of fact may be addressed upon. Sometimes, a decision on facts depends on what the law is on the point or issue. And even the process of finding out whether a party has discharged the burden of persuasion or producing evidence is a matter of law. Thus when the appeal is based on the omnibus ground that the judgment is against the weight of evidence, both factual and legal arguments could be made where the legal arguments would help advance or facilitate a determination of the factual matters. This court’s decision in Attorney-General v Faroe Atlantic Co. Ltd. [2005-2006] SCGLR 271 at 306 per Georgina Wood JSC (as she then was) cited by counsel for the respondent, is apt on this point.” Page 7 of 13 See also Korang J.A citing Boateng & Ors v Boateng (1987/88) 2 GLR 142 in the case of John Pobee v Kofi Sarpong & 2 Ors (2009) 6 G.M.J. 133@137 on where an Appellant contends that a judgment is against the weight of evidence, stated as follows; “where the Appellant contended that a judgment was against the weight of evidence, he assumed the burden of showing from the evidence that, that was so”. Again in the case of Anthony Mensah v Nana Kofi Owusu Fosuhene, Captain (Rtd) Nana Asiamah (2013) 55 GMJ 153@159 Holding 3, the Court of Appeal on the issue whether or not the judgment of the trial court was against the weight of evidence held that: “It is trite that the Supreme Court has held in a number of cases that where an Appellant appeals on the ground that the judgment is against the weight of evidence, he is implying that certain pieces of evidence on record have been wrongly applied against him … that there were certain pieces of evidence on record which if applied in his favour would have changed the decision in his favour”. Now what is that the Plaintiff complains that the trial court did not either apply it or not properly apply in his favour, the trial Magistrate would not have ruled against him? In his statement of claim, the Plaintiff stated that on or about March, 1993, he acquired a piece or parcel of land measuring 160 x 100 feet situated at Sampa-valley, Weija, a suburb of Accra for residential purpose form one Mrs. Harriet Quaye who was a beneficial owner of the land by virtue of a deed of gift dated 15th February, 1993 stamped as No. 1437622/96 and registered as No. LVB 6836/96. According to the Plaintiff he subsequently registered the said land at the Lands Commission and was issued with the said Land Certificate No. GA1281 Vol. 09, Folio No. 31 of 31st May, 1996. By virtue of the said Land Certificate, the Plaintiff, prima facie, has capacity to mount Page 8 of 13 his action. If the trial Court had properly evaluated this piece of evidence including the Plaintiff’s Land Certificate, she could have come to a different conclusion about the capacity of the Plaintiff to mount his action. The trial court page 4 of her ruling (see page 62 of the record of appeal) stated as follows: “Interestingly, Counsel for the respondent admits at paragraph 7 of the affidavit in opposition that the respondent has title over a portion of the land in dispute with the remaining portion of the land compulsorily acquired by the state under an Executive Instrument dated 10th May, 1979 for irrigation purposes. Counsel refers the court to applicant’s Exhibit A (emphasis is mine).” According to the learned Magistrate, “… it is unclear which portions of the land the respondent is referring to he did not lead any evidence on to establish the portions of land that belonged to him and the portion that compulsorily acquired by the state …”. From the above quote, it is clear that paragraph 7 of the Plaintiff’s said affidavit in opposition weighed heavily on the mind of the court. However, capacity is both a question of law and of fact and therefore when he stated that he has title over a portion of the land in dispute with the remaining portion of the land compulsorily acquired by the state under an Executive Instrument dated 10th May, 1979 for irrigation purposes, evidence ought to have been taken to ascertain the portion of the disputed land covered by the Plaintiff’s Land Certificate. Not having done that caused injustice to the Plaintiff’s case. On capacity as a question of fact see the Republic vrs. High Court, Accra; Ex parte Aryeetey (Ankrah Interested Party) [2003-2004] SCGLR 398 @ 399 holding (2), where the Supreme Court held, inter alia, that: Page 9 of 13 “… Whether a person who has sued … indeed, has the capacity he claims to have or not is a question of fact; and if challenged, he must prove same to avoid his suit being dismissed since it is analogous to taking an action against a non-existent defendant …”. Accordingly, if the trial court had set it down for trial and taken viva voce evidence, rather than determining same on affidavit evidence and written submissions by counsel for the parties, perhaps, she would have come to a different conclusion in respect of the Plaintiff’s capacity. The basis of the Defendant’s application to dismiss the Plaintiff’s case on the ground that the result of a search conducted at the Lands Commission shows that the land is a compulsorily acquired land by the State ought to have been treated carefully more so as the Plaintiff also claimed to have been issued with a Land Certificate from the Lands Commission. The learned trial judge’s conclusion that counsel for the Plaintiff had conceded that the Plaintiff is seeking for an order against the defendants to construct a drainage system to resolve the current problem of flood that the Plaintiff suffers at his residence any time it rains means that the Plaintiff had abandoned his claim for declaration of title to the disputed land is not supportable. A look at the reliefs being sought by the Plaintiff would reveal that the reliefs included an order for the Defendant to construct the drainage, among others. See relief (d) of the Plaintiff’s writ of summons and statement of claim contained at pages 3 and 6 of the Record of Appeal respectively. In any case, a person’s capacity to sue must be found to be present and valid before the issuance of the writ of summons, else the writ will be declared a nullity. See Standard Bank Offshore Trust Co. Ltd. vrs. National Investment Bank Limited & 2 Ors. [2017- 2018] SCGLR 707, Benin JSC. Page 10 of 13 Again, per their Statement of Defence as stated above, the Defendants denied the existence of the Plaintiff’s said Land Certificate and further indicated that the said Land Certificate was obtained by fraud. Interestingly, it is this Land Certificate that clothes the Plaintiff with capacity to institute his action (the authority of the Plaintiff to mount his action; call it the Plaintiff’s capacity). When fraud is alleged, you cannot determine it summarily unless evidence is taken. See Mence Mensah vrs. E. Asiamah [2011] 38 GMJ 174, where Supreme Court held that: “In common Law Courts, no rule was more clearly settled than that fraud must be distinctly alleged and as distinctly proved, and that it was not allowable to leave fraud to be inferred from the facts”. See also the case of Saanbaye Basilde Kangberee vrs Alhaji Seidu Mohammed (J4/44/2012) [2012] Unreported SC (04 July 2012), Dotse JSC (as he then was) stated thus: “In our opinion, the conduct of the defendant is not deserving of the sentiments extended to him by the trial judge. Even though the defendant made attempt to challenge the plaintiff by alleging that his Land Title Certificate was procured fraudulently, the said attempt was a lame one since no particulars of the said fraud were particularized. In any case no evidence whatsoever was given which either directly or indirectly gave inkling of any allegation of fraud in the procuration of the plaintiff’s Land Title Certificate. It is trite learning that for anyone to succeed with a serious allegation like fraud which has the tendency to vitiate acts done regularly, the particulars, which must be pleaded, must also be proven. In the instant case, not only were the allegations of fraud not particularized, but they were also not proven.” Page 11 of 13 Again, in the Supreme Court case of Muddy Adam vrs. Frank Nuamah (J4/68/2019 [2020] Unreported SC (05 February, 2020), Gbadegbe JSC delivered himself as follows: “As the defendant’s application also raised issues concerning the allegations of, for example fraud contained in the plaintiff’s statement of claim, the proper procedure as was determined by the learned trial judge was for the matter to go to full scale trial. At page 264 of his ruling, the trial judge said: “In sum I hold that it is the duty of this court to go into the merits of the allegation of fraud vis-à-vis the issue canvassed in this application after evidence has been taken and not to dismiss the action …” In conclusion the appeal succeeds and the ruling of the trial court dated 22nd June, 2022 is hereby set aside and the case remitted to the Court below to be heard to its final conclusion. I award Costs of GH₵5,000.00 against the Defendants. (SGD) WILLIAM APPIAH TWUMASI (J) COUNSEL: NANA BRAGO BOATENG FOR DR. EUGENE ASIAMAH- BOADI FOR THE PLAINITFF/APPELLANT GEORGE AGBEKO FOR THE DEFENDANTS/ RESPONDENTS Page 12 of 13 Page 13 of 13