HENRY ERIC TETTEH ADJAOTTOR-VRS- KOFI ANNAN [2024] GHACA 7 (18 April 2024)

IN THE SUPERIOR COURT OF JUDICATURE IN THE COURT OF APPEAL ACCRA – GHANA AD -2024 CORAM: - JENNIFER DODOO, J. A (PRESIDING) STEPHEN OPPONG, J. A PROF. OLIVIA ANKU-TSEDE (MRS.), J. A SUIT. NO. H1/251/2022 DATE: 18TH APRIL 2024 HENRY ERIC TETTEH ADJAOTTOR = PLAINTIFF/APPELLANT VRS. KOFI ANNAN = DEFENFANT/RESPONDENT ============================================================================== ============================================================================== JUDGMENT STEPHEN OPPONG, JA This is an appeal against the judgment of the High Court sitting at Tema dated the 12th day of October 2021. Dissatisfied with the judgment, the Plaintiff/Appellant herein launched an appeal against the aforesaid judgment on the 6th day of January 2022 on the following grounds: a. The judgment is against the weight of evidence before Her Ladyship the High Court Judge. 1 | P a g e b. Her Ladyship the High Court Judge erred when she posited that Theresa Annan was just a legal tenant and therefore could not have transferred her interest in H/No. AF 13 Community 7 to Plaintiff when it was overwhelmingly clear that it was TDC the owners of Tema Acquisition area which made the transfer into the name of the Plaintiff upon the instruction of the said Theresa Annan. c. Her Ladyship the judge erred in law and in fact when she found that the alleged conveyance is wrongful. PARTICULARS OF ERRORS IN LAW i. Fraud was not pleaded (please see Order 11 R 8 of the High Court (Civil Procedure) Rules, 2004 (C. I. 47). ii. Rule against Natural Justice when Administrative decision of TDC opportunity to defend itself. d. Her Ladyship the judge fell into a grievous error occasioning a grave miscarriage of justice when she failed to order the ejectment of Defendant from H/No. 13 C7 Tema when she found out that Defendant had no interest in the said house. e. Further grounds of appeal may be filed upon receipt of the Appeal records. For the purposes of this appeal, the parties herein shall maintain their respective designations used at the trial court. That is to say, the Plaintiff/Appellant herein shall be referred to as the Plaintiff and the Defendant/Respondent herein shall be referred to as the Defendant. 2 | P a g e The Plaintiff instituted the action which has culminated in this appeal against the Defendant at the Court below claiming the following reliefs: 1. An order for immediate ejectment of Defendant from H/No AF/13 Community 7, Tema. 2. Recovery of Possession. 3. Mesne profit of Five Hundred Ghana Cedis (GHȼ500.00) per month from March 2015 to date of final judgment. 4. General damages for preventing Plaintiff from taking possession of his legitimately acquired property. The basis of this claim as can be gathered from the Statement of Claim which accompanied the Writ of Summons is that he (Plaintiff) acquired the house in dispute from one Theresa Annan who was the lawful lessee of the property for a consideration of Eighty Thousand Cedis after having examined her receipts and personal enquiries from Tema Development Company Limited (TDC). It was the case of the Plaintiff that her vendor, the aforesaid Theresa Annan applied to TDC to have the disputed property transferred to him which was duly done after having gone through the due processes and that he has been paying ground rent in respect of the disputed property since 2016. The Plaintiff averred that the Defendant has vowed not to yield vacant possession of the disputed property to him on the ground that the property belonged to his late father as such his (Plaintiff’s) vendor did not seek his (Defendant) consent as well as that of his siblings before selling the disputed property to him (Plaintiff). The Plaintiff contended that he was a purchaser for value without notice hence the action. 3 | P a g e The Defendant upon service of the Writ of Summons entered appearance and mounted a strong defence to the action on the grounds that the Plaintiff’s vendor was not the lawful lessee of the property in dispute and that at the time of his father’s death, the property was a rented premises under an institutional tenancy between Ghana Ports & Harbour Authority (GPHA) and TDC and that the property was a duty post residence for his late father in respect of which his father paid rent to GPHA. The Defendant averred that upon the death of his father, GPHA took over the property in dispute and was in the process of allocating it to another employee when upon intervention, the property was posthumously released to the children of his late father including himself and that the Plaintiff’s vendor has never lived in the disputed property since the release. The Defendant contended that the aforesaid Theresa Annan did not have the requisite capacity to dispose of the disputed property as she was a trustee of the disputed property whose beneficiaries were himself and his siblings and that the consent of each of the beneficiaries being the children of the late Kwesi Annan ought to have been sought for such a sale to be regular. The Defendant further contended that the transfer from Theresa Annan into Plaintiff’s name by TDC was administrative error and could therefore not create legal ownership of the property in the Plaintiff. It was based on these rival claims that the trial High Court after hearing the parties rendered its judgment which is the subject of this appeal before us. In this judgment, we shall determine the appeal in accordance with the submissions filed by the parties herein. The first ground which was argued by Counsel for the Plaintiff is as follows; THE JUDGMENT IS AGAINST THE WEIGHT OF EVIDENCE BEFORE HER LADYSHIP THE HIGH COURT JUDGE 4 | P a g e In arguing this ground of appeal, Learned Counsel for Plaintiff submitted that having had Exhibit B tendered without objection, had the trial court placed the needed premium on same, it would not have come to the conclusion that it came to which said conclusions according to Counsel, can be found at pages 170 and 171 of the record of proceedings. It was further submitted by Counsel for the Plaintiff that Exhibit B is binding on Theresa Annan, the Plaintiff and TDC and cites Section 37(1) of the Evidence Act. NRCD 323 and argued forcefully that had the trial Court considered the effects of this section, it would not have reached the conclusions it reached. In response to these submissions by Counsel for the Plaintiff, Learned Counsel for the Defendant countered as follows: Even though the Defendant did not cross appeal on the finding by the trial court that the Defendant did not have interest in the property in dispute, which said finding he contends is wrong, he is praying in aid Rule 8(8) of C. I. 19 which provides that: “the court in deciding an appeal shall not be confined to the grounds set out by the appellant, but the court shall not rest its decision on any ground not set by the appellant unless the respondent has had sufficient opportunity of contesting the case on that ground.” Counsel for the Defendant on this submission is urging us to consider that finding by the trial court that the Defendant did not have interest in the disputed property under Rule 8(8) of C. I. 19. Counsel submits that with the exception of that finding, the trial court was right in its findings and therefore the first ground of appeal should fail. Counsel further submits that the trial court was right in not finding for the Plaintiff as the Plaintiff failed to prove his claim in accordance with the law relative to the burden which laid on the Plaintiff in line with authorities in that regard. In furtherance on this point, it is the contention of the Defendant that the Plaintiff failed to lead evidence on the 5 | P a g e acquisition of the disputed property as he did not tender any receipt, no evidence of cheque payments etc. Finally, Counsel for the Defendant submitted that in view of the evidence proffered especially, Exhibits 1, 2 and 3, the Defendant had interest in the property by virtue of the trust which was created in the disputed property which in essence supports the finding of the trial court. In accordance with Rule 8(1) of the Court of Appeal Rules, 1997 (C. I 19) and the host of authorities, an appeal is by way of rehearing and an appellate Court in determining an appeal must evaluate the entire record of appeal of the trial Court including testimonies and documentary evidence adduced at the trial. This is to ensure that on a preponderance of the probabilities the conclusions of the trial Court could be judiciously or sufficiently sustained having regard to the evidence. See Tuakwa v. Bosom [2001-2002] SC GLR 61; Djin v. Musah Baako [2007-2008] SC. In the case of Akufo-Addo v. Catheline [1992] 1 GLR 377 at page 391, the apex Court explained what it means to say that an appeal is by way of rehearing when it stated that: “It must be pointed out that the phrase does not mean that the parties address the court in the same order as in the court below, or that the witnesses are heard afresh. What it does however indicate is that the appeal is not limited to a consideration whether the misdirection, misreception of evidence, or other alleged defect in the trial has taken place, so that a new trial should be ordered. It does also mean, as was pointed out by Jessel M. R. in Purnell v. Great Western Rail Co. (1876) 1 Q. B. D. 636 at 640, C. A. that the Court of Appeal is not to be confined only to the points mentioned in the notice of appeal but will 6 | P a g e consider (so far as may be relevant) the whole of the evidence given in the trial court, and also the whole course of the trial.” The Supreme Court in the case of Asamoah & Another v. Offei [2018-2019] 1 GLR 655 speaking through Appau JSC reiterated the law at p.660 thus: “The authorities are legion that an appeal is by way of rehearing, particularly where the appellant alleges in his notice of appeal that the decision of the trial court was against the weight of evidence. In such a case, it is the duty of the appellate court to analyse the entire record of appeal, take into account the testimonies and all documentary evidence adduced at the trial before arriving at its decision, so as to satisfy itself that, on a preponderance of the probabilities, the conclusions of the trial judge are reasonably or amply supported by the evidence on record. And it is immaterial whether the appeal is a second one from the Court of Appeal to the Supreme Court.” The above position of the law has been affirmed by the Supreme Court in the recent case of Kofi Kyei Yamoah-Ponkoh, Andrews Okyere, Amoako Blankson and All Shop Owners Of Anomanye Stores Complex v. Asomdwe House Co. Ltd (2021) DLSC 10686. Consequently, an appellate court in hearing an appeal must consider all the evidence on record in reaching a conclusion as to whether the decision of the trial court can reasonably be supported by the evidence so considered on the preponderance of probabilities. Further, as espoused in the Supreme Court case of Naa Lamiley Amoah v. Gloria Quartey, The Chief Registrar (Land Title Registry, Accra) v. Sensations Limited (Unreported) Civil Appeal No. J4/20/2010, 10th February 2011, “the appellate court can only 7 | P a g e interfere with the findings of the trial court if they are wrong because (a) the court has taken into account matters which were irrelevant in law, (b) the court excluded matters which were critically necessary for consideration, (c) the court has come to a conclusion which no court properly instructing itself would have reached and (d) the court’s findings were not proper inferences drawn from the facts. ….” Before delving into the first ground of appeal as argued, the Defendant in his response to the Written submission filed by the Plaintiff has prayed in aid Rule 8(8) of C. I. 19 and has urged on us to consider the finding by the trial court to the effect that the Defendant has no interest in the disputed property in the judgment the subject matter of this appeal. Even though The Defendant did not cross appeal against that portion of the judgment, he wants this court to consider that issue under Rule 8(8). The Defendant cited a Nigerian case of Lagos City Council v. Ajayi [1970] 1 All NLR 291. From the reading of this authority, it is it clear that it bothers on variation of judgments and not on the analogous provision of our Rule 8(8) as Counsel is urging on us. It is instructive to note that C. I. 19 makes provision for Variation of judgments in Rule 15. The cumulative effect of these two rules i.e Rule 8(8) and Rule 15 of C. I. 19 makes it abundantly clear that the prayer cannot be acceded to by this Court on the grounds that when one considers the prayer under Rule 8(8), there is nothing on record to show that the condition precedent for the invocation of our jurisdiction as an appellate court, to activate our resort to this rule to enable us consider that issue of whether or not the Defendant lacks interest in the disputed property under the procedure being employed by Counsel for the Defendant. Again, when one wants to consider that issue under the umbrella of variation jurisdiction, clearly, the requisite notice which ought to have been given by the Defendant in terms of 8 | P a g e Rule 15 is lacking. This is what we will say for now on this prayer suffice it to say that we shall revisit the issue of whether or not the Defendant has any interest in the property in dispute later in this judgment as the Plaintiff has argued under one of his grounds of appeal that the trial court erred in not ordering the ejectment of the Defendant. We shall now launch into the determination of the first ground of appeal. On this ground, the Plaintiff submitted that had the trial court placed the needed premium on Exhibit B , it would not have come to the conclusion that the Plaintiff’s vendor being a legal tenant does not confer any rights as to ownership in that property to be able to transfer same to the Plaintiff. The relevant portions of Exhibit B which is the bedrock of this submission is as follows: “TMA DEVELOPMENT CORPORATION TRANSFER DECLARATION Tenant’s Name:…………Theresa Annan…………. Present Address……… C/o P. O. Box CO 1603, Tema………… House/Plot/Shop No.:………. C7TE/AF.13…….. Lying and Being at:…….. Tema……………. VOLUNTARY VACATION OF TENANCY I/We………… Theresa Annan……….. of…….. Tema……….. being the legal tenant/lessee/licensee of House/Plot/Shop No. C7/AF.13………..situate, lying and being at………. TEMA……. do hereby freely and voluntary given up the tenancy/possession/licenses of the said House/Plot/Shop No. C&/AF.13 with effect from the 24th………day of………. JULY……….2015…………on grounds that: I/We have relinquished our/my right title and interest in the said House/Plot/Shop to HENRY ERIC 9 | P a g e TETTEH ADJAOTTOR and by this, I/We do hereby give the Tema Development Corporation the liberty to re-allocate the said House/Plot/Shop to the transferee: HENRY ERIC TETTEH ADJAOTTOR and I/We do hereby agree to be bound by the Corporation’s policy that by voluntarily surrendering the above-name House/Plot/Shop, I/We forfeit the right to apply for or to be allocated any of the Corporation’s House/Plot/Shop within the acquisition area”. A scrutiny of Exhibit B shows that it is a document which seeks to transfer tenancy/possession/license of the disputed house from Theresa Annan the Plaintiff’s vendor to the Plaintiff. It is this transfer that the Defendant objects to on the grounds that the Plaintiff’s vendor lacks the requisite capacity to effect in view of the interest that he and his siblings being the children of the late Kwesi Annan have in the disputed property. Our remit as the appellate court, being called upon to determine this appeal on this omnibus ground of the judgment being against the weight of evidence, as the authorities go, is a call on us to evaluate the evidence on record to ascertain whether the judgment is supported by the evidence on record. On this score, we are to evaluate the pieces of evidence to determine if the judgment is supported by the evidence adduced at the trial. It is on record that the disputed property was sold to the Plaintiff by Theresa Annan. Since the basic principle in land transfer and/or sale is hinged on the doctrine of nemo dat quo non habet, we shall begin to inquire into the root of title of the Plaintiff’s vendor to enable us to determine whether the vendor possessed the requisite interest to be able to transfer same to the Plaintiff. This is especially so in view of the contention of the Defendant that the property was offered to the said Theresa Annan as Trustee for the children of the late Annan who were below 18 years. The Plaintiff has not challenged this fact by the Defendant. Indeed the Plaintiff did not proffer any evidence of the root of title 10 | P a g e of his vendor. The only document which provide any evidence to prove the Plaintiff’s vendors root of title was tendered by the Defendant. The Defendant tendered in evidence Exhibits 1, 2 and 3 in support of his contention that the disputed property was offered to Theresa Annan as trustee. From the evaluation of the evidence on record , it is clear that Theresa Annan, the Plaintiff’s vendor derives her interest in the disputed property from exhibit 3 and therefore it will be appropriate to reproduce the aforesaid exhibit for proper evaluation. 7-10-2002 Exhibit 3 is as follows: “TEMA DEVELOPMENT CORPORATION Our Ref: C7/AF.13 MR. R. R. AMPONSDAH P. O. BOX S/L 903 SAKUMONO-ESTATES TEMA Dear Sir, PETITION ON HOUSE NO. AF/13 COMMUNITY 7, TEMA We write in reference to you letter dated June 26, 2002. By the release of letter issued by GPHA, the beneficiary of this unit was KWESI ANNAN who unfortunately had died earlier. 11 | P a g e By the Corporation’s rental policy the person to be considered for tenancy is the widow who as in occupation with the deceased at the time of death. If there is no widow, then the eldest child who is capable of paying the rent will carry the tenancy on behalf of this other brothers and sisters. The rental house does not form part of the self-acquired property of the deceased for its beneficiaries to be determined by the family. The Corporation will therefore recognize the widow as the new legal tenant on behalf of all the children of the deceased who are below 18 years. If for some reasons a set of children fell aggrieved, then they can seek redress at the Human Right Commission (CHRAJ). Thanks for your understanding. Yours faithfully, ……………………………………….. AG. DIRECTOR OF ESTATES (F. R. ADJABENG) FOR AG. MANAGING DIRECTOR CC: AG. MANAGING DIRECTOR” 12 | P a g e As stated earlier in this judgment, the submission of Counsel for the Plaintiff on this ground is that if the trial court had placed the needed premium on Exhibit B, it would not have come to the conclusion that it did and that irrespective of the interest transferred, the bottom line is that an interest has been transferred by Theresa Annan to the Plaintiff as such the trial court ought to have ensured that Defendant gives effect to it by giving vacant possession. The question begging for resolution is that looking at root of title of the Plaintiff’s vendor, is she clothed with the requisite locus to have transferred the disputed property to the Plaintiff? We have evaluated the pieces of evidence on record particularly Exhibits 3 which clearly creates a trust by which the aforesaid Theresa Annan, the Plaintiff’s vendor was the Trustee and the children of the late Kwesi Annan who were under the age of 18, the beneficiaries. This is further buttressed by what transpired at the trial when the Defendant was being cross examined by Counsel for the Plaintiff. See page 72 and 75 of the record of proceedings. This discourse will be referred to later in this judgment. In the case of Green v. Russel [1952] 2 Q. B 226, Trust was defined as: “an equitable obligation, binding a person (who is called trustee) to deal with property over which he has control (which is called a trust property) for the benefit of persons (who are called beneficiaries or cestui que trust) of whom he may himself be one, and any of whom may enforce the obligations”. See also the cases of: Ussher v. Darko [1977] 1 GLR 476 Soon Boon Seo v. Gateway Worship Center [2009] SCGLR 278 13 | P a g e Having established by the evidence on record that the disputed property is a trust property which was being held in trust by Theresa Annan for the benefit of the children of the late Kwesi Annan who were below the age of 18 at the time the trust was constituted, can Theresa Annan, the Plaintiff’s vendor being the trustee transfer the disputed property over and above the beneficiaries? Before attempting to answer the above question, a little incursion into the law on trust particularly when a trust can be terminated will illuminate the path for us to see the way clear in deciding the main issue this appeal presents particularly, on this omnibus ground of appeal. The instances where trust can be terminated are: a) By the terms of the trust i.e when the instrument creating the trust makes provision for the termination upon certain conditions being met. For example if there is a provision in the instrument that the trust terminates when the beneficiaries come of age, exhaustion of the trust assets, etc. b) By the beneficiaries. The beneficiaries of a trust may together put an end to the trust in whole or in part or discharge the trustee. See Halsbury’s Laws of England, Fourth edition, Volume 48 at paragraph 637 and also the case of Saunders v. Vautier (1841) 4 Beav 115. c) By a Court order. See Halsbury’s Laws of England the same edition and volume but this time at paragraph 914. That is if the court deems it fit so to dissolve a trust, it may be an order do so. d) See also Section 18 of the Courts Act where infants are involved. 14 | P a g e e) From the principles above, a trustee’s right to terminate a trust is very clearly minimal if not absent. We now turn our attention to the issue of whether Theresa Annan, the Plaintiff’s vendor being a trustee of the disputed property can transfer same to the Plaintiff. This question was succinctly answered by Apaloo JA (as he then was) in the case of Ussher v. Darko (1977) 1GLR 476 as follows: “The question that must be answered is: What consequences will follow if since the judgment in the court below the plaintiff had registered his title? In my opinion, he will become the owner of the legal title as Matilda's title would then have been completely divested in his favour.” Should this fact affect the prior equitable title which I have held to have been vested in Sir Edward? I think not. The plaintiff will then step [p.494] into Matilda's shoes as the bare owner of the legal title with the right to beneficial enjoyment still vested in Sir Edward. This is because I have already held that plaintiff bought the property with constructive notice of Sir Edward's title and took subject to it. Matilda's title was registered under the Land Registry Ordinance, Cap. 133 (1951 Rev.), and section 24 of that Ordinance expressly provides that registration: “shall not cure any defect in any instrument....or confer upon it any effect or validity which it would not otherwise have had." Section 30 of the Land Registry Act, 1962, keeps alive instruments registered under that Ordinance with the same legal consequences which the Ordinance accords to instruments registered under that legislation. Indeed if the plaintiff registered his title subsequent to the judgment of the court below, he would then have acquired his legal title with actual knowledge of Sir Edward's equitable interest. This will in no way avail 15 | P a g e him. So whatever way one looks at it, the plaintiff cannot acquire title to this property superior to Sir Edward's.” In that case, the Plaintiff therein had bought the property from the trustee who was held to be holding it in trust for the beneficiary therein. Applying the principle in the Ussher v. Darko case to the present appeal before us, it is clear that what the Plaintiff got from the transaction which is evidenced by Exhibit B is the bare legal title which is subject to the beneficial interest of the children of the late Kwesi Annan who were below 18 years. From the evidence on record, all the 5 children of the late Kwesi Annan including the Defendant were below 18 years and are all beneficiaries of the disputed property. See page 72 of the Record of Appeal when the Defendant was being cross examined by Counsel for the Plaintiff. This is what ensued: Q: When did your father die? A: He died on 1st January 2000. Q: So at the time of his death, you were fourteen (14) years old is that right? A: Yes. Again at page 75 of the Record of Appeal, the cross examination continued as follows: Q: So Mrs. Theresa Annan the vendor of the property in dispute was the lawful tenant of TDC. A: Mrs. Theresa Annan was the lawful tenant on behalf of all the children below 18 years. 16 | P a g e Q: Initially, she was recognized as the lawful Tenant on behalf of all the children below 18 years. A: That is so and as at that time none of the children had attained the age of 18years. This answers were not challenged by the Plaintiff which therefore means that all the children of the late Kwesi Annan are beneficiaries of the trust created. We have examined the totality of evidence on record in line with our duty as an appellate court and have come to the conclusion that the Plaintiff’s vendor, being the trustee of the disputed property as a bare trustee, is vested with the legal title which is subject to the equitable interest of the beneficiaries including the Defendant. This therefore means that the Plaintiff’s vendor could only transfer her legal interest of being a bare trustee to the Plaintiff. To that extent, what the Plaintiff obtained from his vendor is the bare legal title which is subject to the rights of the beneficiaries. In other words, the Plaintiff steps into the shoes of his vendor and therefore becomes the legal owner of the disputed property as a bare trustee subject to the interest of the beneficiaries. Also on record is the evidence that the Defendant being one of the beneficiaries is and has been in possession of the disputed property since the trust was constituted. In that regard, the appeal on this ground partially succeeds to the extent that the Plaintiff’s vendor being the Trustee can only pass on the bare legal title to the Plaintiff. The next ground of appeal which the Plaintiff argued in his written submission is as follows: “HER LADYSHIP THE JUDGE ERRED IN LAW AND IN FACT WHEN SHE FOUND THAT THE ALLEGED CONVEYANCE IS FRAUDULENT AND THE TRANSFER OF SAME BY TDC WRONGFUL”. 17 | P a g e Under this ground, Counsel for the plaintiff submitted that since fraud was not pleaded in line with Order 11 Rule 8 of High Court (Civil Procedure) Rules, 2004 (C. I.47) it was wrong for the trial court to have made that finding. Counsel further submitted that the trial High court breached the rule against natural justice when the administrative decision of TDC was questioned without giving it the opportunity to defend itself. Counsel cited the cases of Akuffo Addo v. Quarshie Idun (1968) GLR 667 and Mence Mensah v. E. Asiamah (2011) 38 GMJ 174 in support of his argument. In countering the above submissions by Counsel for the Plaintiff, Counsel for the Defendant submitted that notwithstanding failure on the part of the Defendant to plead fraud, where there is clear evidence on the face of the record which points to fraud, the court cannot ignore it. In other words, failure to plead fraud at the trial did not prevent the court from endorsing it when it is raised as fraud vitiates everything. Counsel cited the cases of Apea & anor v. Asamoah (2003-2004) 1SCGLR 229, Amuzu v. Oklikah (1998-1999) SCGLR 141 and Edward Kwasi Santeng v. Dr. Edward Acquah (2020) GHASC 57. We have examined the evidence on record and we are of the considered view that there is no basis for the trial court to have made a finding of fraud against the Plaintiff as from the evidence on record, the issue of fraud did not feature in the whole scheme of things in the trial which could have provided the basis for the trial court to have made that finding of fraud against the Plaintiff in line with the authorities cited by both Counsel. In the result, there is merit in this ground of appeal and same is accordingly granted. 18 | P a g e The last ground of appeal which was argued by Counsel for the Plaintiff is as follows: “HER LADYSHIP THE TRIAL JUDGE FELL INTO GRIEVOUS ERROR OCCASIONING A GRAVE MISCARRIAGE OF JUSTICE WHEN SHE FAILED TO ORDER THE EJECTMENT OF DEFENDANT FROM H/NO. F13 C7 TEMA WHEN SHE FOUND OUT THAT DEFENDANT HAD NO INTEREST IN THE SAID HOUSE”. Under this ground, Counsel for the Plaintiff submitted that since the trial court had found that the Defendant had no interest whatsoever in the property in dispute and also found that the house in dispute had Theresa Annan as the legal tenant, then the trial court should have granted the relief of recovery of possession which had been sought for by the Plaintiff. As not granting implies that Theresa Annan has been deprived of her interest as the legal tenant. Counsel for the Defendant did not respond to this submission by Counsel for the Plaintiff. I find this strange since this ground of appeal provided Counsel for Defendant the golden opportunity to press home the argument about this court revisiting the finding of the trial court on the issue of the Defendant’s lack of interest in the disputed property. As said earlier in this judgment, the Defendant did not respond to the submissions by Counsel for the Defendant on this issue. As an appellate court, since the appeal has been heard and the parties have been afforded the opportunity to present their cases as required by statute, we are duty bound to consider this ground notwithstanding the absence of response from Counsel for the Defendant on this ground of appeal. 19 | P a g e The pith of this ground of appeal is that since the Plaintiff has acquired the disputed property from Theresa Annan and has been regularized by the TDC, the trial court erred by failing to order the Defendant to vacate the disputed property as according to the Plaintiff the court had found that the Defendant had no interest in the disputed property. As found earlier in this judgment, the Plaintiff could only step into the shoes of his vendor being Theresa Annan the trustee who is the bare trustee which said interest is subject to the interest of the children of the late Kwesi Annan including the Defendant. There is ample evidence on record that the Defendant is one of the beneficiaries of the trust created by TDC and has since the creation of the trust been living in the disputed property. See page 58 of the record of proceedings. This is the discourse that ensued when the Plaintiff was under cross examination by Counsel for the Defendant: Q: You had discussion on the property with the Defendant. A: Yes, that was the first time I got to the house. Q: And through these discussions, you became aware that the property was occupied by the Defendant. A: Yes From this this piece of evidence, the Defendant who is one of the beneficiaries and clearly enjoying the property as such beneficiary, cannot be ejected by the Plaintiff who has been held to have acquired the interest of the trustee thereby becoming a bare trustee, whose interest is subject to that of the beneficiaries including the Plaintiff. The Defendant’s right to the disputed property is superior to that of the Plaintiff. As such, the Defendant 20 | P a g e exercising his right as a beneficiary of the trust cannot be ejected by the Plaintiff who is a bare trustee. In the result, the appeal fails on this ground of appeal and same is dismissed. In conclusion, it is the judgment of this court that the appeal succeeds in part as follows: in respect of grounds one and two, the appeal succeed to the extent that the Plaintiff’s vendor being the trustee of the disputed property could only pass on the bare legal title to the Plaintiff which is subject to the interest of the beneficiaries of the trust which in this case includes the Defendant. Subject to this, the appeal fails on these two grounds. Ground three succeeds in whole as there was no basis for the finding of fraud by the trial court as such that part of the judgment is hereby set aside. Ground four fails and same is dismissed. Accordingly, the appeal succeeds in part and fails substantially in what I may term as pass no way. (SGD) STEPHEN OPPONG (JUSTICE OF APPEAL) (SGD) JENNIFER A. DODOO (JUSTICE OF APPEAL) I AGREE ============================================================================== CONCURRING OPINION 21 | P a g e ============================================================================== PROF. ANKU-TSEDE, (MRS.) JA INTRODUCTION I have had the privilege of reading the judgment of my esteemed brother, Oppong, JA, and I agree that the appeal succeeds partially but fails in part on grounds discussed below. It is my view that the reliance by the Appellant (Plaintiff) on the fact that he examined the ownership documents of the Vendor, made personal enquiries, and purchased the house as an innocent purchaser for value without prior notice of any encumbrance must be isolated and dealt with to erase any shadow of doubt as to their relevance in resolving the issues raised in this appeal. The facts of this appeal and the arguments made by both parties have been largely set out in the lead judgment. I would, however, set out portions of the facts that are relevant for this concurrent opinion. The Plaintiff in paragraphs 3, 4, 5, 6, 7 and 10 of his Statement of Claim asserts that, the Vendor (Theresa Annan) a lawful lessee (emphasis mine) of H/No. AF 13, Community 7, Tema, sold the said house to Plaintiff after Plaintiff had confirmed the Vendor’s legal status and interest in the house by examining the Vendor’s receipts and upon making personal enquiries from the Tema Development Corporation (TDC). And after the Vendor had applied to TDC and upon paying all statutory fees and going through all due processes TDC eventually transferred the house into Plaintiff’s name. Plaintiff further 22 | P a g e states that he was an innocent purchaser for value without a prior notice of any encumbrances. These claims were essentially repeated in the Plaintiff’s witness statement where he expanded his claim/testimony in paragraph 9 of his witness statement to include the fact that the Vendor showed Plaintiff evidence of her ownership by producing receipts from TDC bearing her name. Plaintiff further stated that he and his grantor (Vendor) signed a Transfer Declaration and Voluntary Vacation Form and that the transfer of the property from the vendor’s name to his name was in order and within the mandate of TDC (paragraph 10 and 13 of Plaintiff’s witness statement). Upon being dissatisfied with the judgment of the Court below the Plaintiff filed a notice of appeal with the following grounds of appeal and reliefs being sought: Grounds of Appeal: a) The judgment is against the weight of evidence before Her Ladyship the High Court Judge. b) Her Ladyship the High Court judge erred when she posited that Theresa Annan was just a legal tenant and therefore could not have transferred her interest in H/No. AF 13 Community 7 to Plaintiff when it was overwhelmingly clear that it was TDC the owners of Tema Acquisition area which made the transfer into the name of the Plaintiff upon the instruction of the said Theresa Annan. c) Her Ladyship the judge erred in law and in fact when she found that the alleged conveyance is fraudulent and the transfer of same by TDC is wrongful. Reliefs Sought: 23 | P a g e That the judgment of the trial judge be set aside and entered for the Plaintiff/Appellant. OPINION It has been established and there is no iota of doubt that an appeal is by way of rehearing and an appellate court is entitled to examine the record of appeal and arrive at its own conclusions on both factual and legal issues arising from the record of appeal. The onus is therefore on an appellant to clearly and properly demonstrate to the appellate court the lapses in the Judgment being appealed against. See Agyeiwaa vs. P & T Corporation [2007-2008] 2 SCGLR 985 at 989; Charity vs. EMS 2007/2008 SCGLR, 985; Owusu Domena v. Amoah [2015 -2016] SC GLR, 790 and Djan v. Musah Baako [2007/2008] 1 SCGLR 686. It is a general principle of law that he who asserts must prove. Since the Plaintiff sued for an order of immediate ejectment, recovery of possession of the property in question, together with mesne profits and general damages, he must prove his claims by discharging the burden of proof by the preponderance of the probabilities as required by law. The Plaintiff must therefore produce sufficient and credible evidence to support his claims. See Sections 11 and 12 of the Evidence Act, 1975 (NRCD 323) and Yaa Kwesi v. Arhin Davis & Anor. [2007-2008] SCGLR 580 at 584. Both Plaintiff and Respondent (Defendant) tendered a number of exhibits during the trial in support of their claim and defence, respectively. Whilst Plaintiff tendered Exhibits A, A1, B and B1, Defendant and Defendant’s witness (Richard Rexford Amponsah) tendered Exhibits 1, 2, 3, 4 5 and 6, 7 series and 8, respectively. 24 | P a g e Exhibits A and A1 are the documents referred to in paragraph 9 of the Plaintiff’s Witness Statement which supports Plaintiff’s claim that he inspected the Vendor’s documents and was shown evidence of the Vendor’s ownership of the house in question when the Vendor produced receipts from TDC bearing the Vendor’s name. It is worth noting that exhibits “A” and “A1” are unstamped and unregistered instruments showing that the Vendor made a payment in respect of Estates Transfer Form to TDC, and a payment in respect of Transfer Fee, respectively. These exhibits relied upon by the Plaintiff do not suggest or prove ownership in any form. Defendant and his witness’s exhibits (1 through to 8) are mainly correspondence from TDC and Ghana Ports & Harbours Authority (GPHA) relating to the posthumous release of the house to the Vendor (as widow) as the legal tenant on behalf of all the children of the deceased (Kwesi Annan) who were below the age of 18 years at the time, as well as receipts of payment of penalty and rent issued by TDC. It is worth noting that the only document in writing signed by the Plaintiff, Vendor and TDC is the TDC Transfer Declaration and Voluntary Vacation of Tenancy form (Exhibit B) which Plaintiff relied on in paragraph 10 of his witness statement, together with Exhibit B, as evidencing a transfer of ownership of the house to him. An examination of Exhibits B and B1 shows that exhibit B contains information on the Vendor’s declaration that she voluntarily relinquished her tenancy to the Plaintiff and gave TDC the liberty to re-allocate the house to the Plaintiff, and Exhibit B1 is a rent demand notice. These exhibits contain no words suggesting that the Vendor transferred any interest in the house to the Plaintiff or that TDC transferred the property to the Plaintiff. Besides, even if they did, which is not the case, these exhibits were not stamped and can therefore not be offered in evidence to support a claim of transfer of ownership of the said house. 25 | P a g e In accordance with the wording of the Voluntary Vacation of Tenancy Form (VVTF), the Vendor purported to have relinquished her right, title and interest in the said house to the Plaintiff and at the same time gave TDC the liberty to re-allocate (emphasis mine) the house to the Plaintiff. The wording of the VVTF does not suggest that the Vendor had the ultimate power or was vested with the requisite title to transfer any interest whatsoever to the Plaintiff. And she gave TDC who may have the ultimate right to do so the liberty to reallocate to the Plaintiff. Beyond this Plaintiff has not provided any credible evidence to support his claim that the Vendor was a Lessee and had the right or was vested with the requisite title to sell the house to Plaintiff. Plaintiff also failed to provide any evidence in support of his claim that TDC eventually transferred the house into his name. According to Plaintiff the Vendor showed him evidence of her ownership by producing receipts (Exhibit A and A1) from TDC bearing her name (See paragraph 9 of Plaintiff’s witness Statement). Plaintiff under cross examination also admitted that he is an estate developer and understands the customs and practices of the estate development business (See page 56 of the Record of Appeal (RoA). Having seen exhibits A and B series, it is reasonable to conclude that Plaintiff as an estate developer who understood the customs and practices of the estate development business knew or ought to have known that the Vendor had no title or interest in the house capable of being a subject of any sale or transfer of ownership. It is important to reiterate that the ROA contains no evidence that Exhibits A and B series were stamped. In accordance with section 32 of the Stamp Duty Act, 2005 (Act 689), Plaintiff’s alleged transfer documents and receipts in respect of the said house, ought to have been stamped as required by law, failing which they cannot be offered in evidence to support a claim of transfer of ownership in land. See Nii Aflah v. Benjamin Kwaku 26 | P a g e Boateng [2023] DLSC16141; Lizori Ltd v. Boye & School of Domestic Science & Catering [2013-2014] 2 SCGLR 889; Woodhouse Ltd vs. Airtel Ghana Ltd. [2017-2018] 2 SCLRG 615 at 623 and Theophilus Teiko Tagoe, The Nungua Stool v. Dr. Prempeh, Benjamin Amartey Mensah, J4/29/2022 dated 26 April 2023 The apex Court in Nii Aflah vs. Benjamin Kwaku Boateng, supra, was of the considered opinion that “the law on the admissibility or otherwise of unstamped documents or instruments as enunciated in the cases of Lizori and Woodhouse are more accurate precedents of the proper construction of Section 32 of the Stamp Duty Act, 2005 (Act 689).” It is also worth noting that the exclusion of Exhibits A and B series does not relieve this Court of the duty to examine the ROA and come to its own conclusion, considering other evidence contained in the ROA, by determining whether the Plaintiff has established his case on a balance of probabilities. See Woodhouse Ltd v. Airtel Ghana Ltd, supra. I would therefore proceed to deal with whether Plaintiff produced sufficient and credible evidence to support his claims. Notwithstanding whose version of events that occurred is credible, the relevant question is whether Plaintiff purchased any interest whatsoever in the said house and if so, did he purchase it in good faith, for value and without notice of any encumbrance? A bona fide purchaser has been defined as “One who buys something for value without notice of another's claim to the property and without actual or constructive notice of any defects in or infirmities, claims, or equities against the seller's title; one who has in good faith paid valuable consideration for property without notice of prior adverse claims……..” See Black’s Law Dictionary 1355 (9th Ed. 2009). 27 | P a g e A plea or defense of bona fide purchaser for value without notice must be supported with credible evidence to the satisfaction of the Court. The Supreme Court in Mensah v. Kwanko II (J4 17 of 2016) [2017] GHASC 22 (14 June 2017) reasoned that: “… the plea of bona fide purchaser for valuable consideration if even applicable is a defence which calls for supporting evidence to prove it. In this case the Appellant as plaintiff was pleading it as a shield to assert title which was obviously void by the nature of the grant. The defence even if pleaded should have been proved to the satisfaction of the court on the evidence. This Court in the recent case of Hydrofoam Estates (GH) Ltd v. Owusu [2013-14] 2 GLR 1117 in discussing this plea held as follows: “Where a party had put up the plea of bona fide purchaser for value without notice of any adverse title, the onus would squarely be on that party who had pleaded the same. Since the plea was to be considered as an absolute, unqualified and unanswerable defence if upheld by a court of law, the law would require that evidence in support of the plea must satisfy the court.” The Supreme Court in Kusi and Kusi v. Bonsu [2010] SCGLR 60 per the majority, said at page 88 as follows: “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 was 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 show that they even sought professional advice before entering into the transaction. In our view the steps they took are not the adequate steps of a prudent purchaser of this particular property. Indeed, had they extended their search to 28 | P a g e 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 Bank of Africa Ltd v. Gracefield Merchants Ltd. & Ors. (2020) JELR, 80041 (SC) Supreme Court, Civil Appeal Suit No. J4/35/2016, the facts showed that the Appellant did not register its interest until 2010, by which time the Defendants had alienated their interest to the Claimant. Thus, although the Claimants did not conduct searches at the Lands Commission to determine if the property was encumbered, there was no adverse interest to their title since the Deed of Mortgage had not been registered at the time they acquired interest in the property. Thus, even if they had conducted any search at the Lands Commission it would not have shown an encumbrance on the property. Therefore, in the absence of fraud, the Claimants were bona fide purchasers for value without notice of the Appellant’s interest. The Supreme Court per Marful-Sau, JSC (as he then was) held that “the law thus required the Claimants to lead evidence that they had no notice of any title adverse to the 2nd defendant, who assigned the properties to them. Indeed, the Claimants had to establish that throughout the transaction leading to the assignment of the properties to them they acted prudently and in good faith.” In arriving at its decision, the Court further stated that: “We are of the opinion that “in the circumstance of this case even if the Claimants had conducted official searches in 2008 and 2009, at the Lands Commission, as the law expected of prospective purchasers of landed properties, the search would not have revealed any encumbrance, as none had been registered as required under the law. In assessing whether a purchaser of land had acted prudently, and for that matter entitled to seek comfort under the plea of bona fide purchaser for value without notice, we think that each case must be determined based on its peculiar circumstances. In this appeal the 29 | P a g e evidence is clear that the Claimants could not have had notice of any interest adverse to that of the 2nd defendant, since evidence on record showed that the mortgage was not registered. There was also no evidence to demonstrate that the Claimants were aware of the mortgage transaction between the 2nd defendant and the Appellant. Further, there was no evidence that the Claimants were parties to any fraud against the Appellant.” In Kwanko II v. Lebanon Society [2014] 70 GMJ 118, Dzamefe J. A. stated that “it is trite law that the buyer must always beware. The law is clear, caveat emptor. It is the duty of any diligent and serious purchaser of landed property to conduct a search on ownership and title of the property before entering into any contract for purchase. We are not oblivious of the law about the bonafide purchaser of property of value without notice. The difference however is that if after all diligent search, the buyer had no knowledge about any encumbrances, then he can seek refuge before equity as a buyer for value without notice” In Re Morgan (1881) 18 Ch. D 93 at page 371, Fry J opined that a purchaser is deemed to have had notice unless he can show that “he took all reasonable care and made inquiries, and that, having taken that care and made inquiry, he received no notice….”. Consequently, a bona fide purchaser for value without notice of an encumbrance must have purchased the property without knowledge, actual or constructive, and must have no reason to know of any existing encumbrances against it. He must act in good faith and given consideration in exchange for the property. To seek refuge before equity, such a purchaser must be diligent, prudent and conduct searches, as well as take all reasonable care and properly investigate the root of title of his vendor before entering into any purchase agreement. The Plaintiff during cross examination admitted meeting the Defendant a couple of times at the location of the house, as well as had discussions with Defendant on the property. Plaintiff also admitted that he became aware that the property was occupied by the 30 | P a g e Defendant (See pages 56 and 58 of the ROA). Having become aware that the property was occupied by the Defendant, prior to the said purchase, Plaintiff cannot deny that he knew or ought to have known that the property was somewhat encumbered. In the circumstance Plaintiff is deemed to have had notice that the property was encumbered. I agree with Defendant’s Counsel when he argued in his written submission filed on behalf of the Defendant that “Per the position in Brown v. Quashigah (2003-2004) SCGLR 930, that mere inspection of receipts of payment of ground rents was not enough a search to catapult the Appellant to a position where the Appellant can seek shelter under the doctrine of a bona fide purchaser when it was so clear and obvious that the Respondent was an occupier of the house whom the Appellant had acquiesced that the Respondent was in possession but ignored the signs and proceeded to engage the Vendor, Theresa Annan for the sale transaction.” Contrary to the Plaintiff’s claim that he was an innocent purchaser for value without notice of an encumbrance, the evidence before the Court is rather that Plaintiff failed to take all reasonable care and conducted no diligent search, especially when it came to his notice that Defendant occupied the property prior to the alleged purchase. Having failed to act prudently, upon having notice that the Defendant occupied the property, Plaintiff does not qualify as a diligent buyer and is not entitled to seek comfort under the plea of bona fide purchaser for value without notice. He therefore cannot be protected as he took the risk of buying such a property at his own peril. See Brown v. Quarshigah, supra at 966, where the Court per Date-Bah, JSC, in agreeing to the dismissal of the appeal as being unmeritorious opined that, “ ….. Purchasers of land who ignore signs of possession by a party other than their vendor on the land, do so at their own risk and are likely to come to grief.” In this instant suit the Plaintiff says he was shown receipts from TDC bearing the Vendor’s name as evidence of the Vendor’s ownership of the house. He also made personal enquiries at TDC. TDC is a public body and an official search could have disclosed the interest, if any, of the Vendor. When a purchaser, who describes himself as 31 | P a g e an estate developer and understands the customs and practices of the estate development business disregards such basic requirements as conducting searches on land ownership and proceeds with the purchase, the Court should not extend its arm of protection to such a purchaser. Upholding the principle of equity requires courts to consider the actions and knowledge of all parties involved in a transaction. When a purchaser knowingly acquires property with encumbrances, they should bear the consequences of their decision rather than seeking protection from the courts. Granting protection in such cases would unjustly shift the burden onto innocent parties with valid claims. Purchasers have a responsibility to conduct thorough due diligence before purchasing a property. This includes reviewing property records, conducting surveys, and seeking legal advice if necessary. Refusing to protect purchasers who ignore known encumbrances incentivizes diligence and discourages reckless behaviour in property transactions. Allowing purchasers to disregard these encumbrances undermines the rights of third parties and can lead to unnecessary and protracted legal disputes and injustices. Allowing purchasers to benefit from their own wilful ignorance or reckless conduct sets a dangerous precedent and opens the door to potential fraud and misrepresentation in property transactions. The justice system plays a key role in safeguarding the integrity of the legal system and this is often achieved by ensuring that parties are held accountable for their conduct. To ensure justice, fairness and equity, Courts should prioritize protecting the legitimate interests of all parties involved in property transactions. By refusing to protect a 32 | P a g e purchaser who disregarded a known encumbrance, this Court sends a clear message that the courts would not protect purchasers who acts recklessly and disregard red flags during property transactions. This is non-negotiable as it fosters trust and confidence among buyers, sellers, and other stakeholders in the property market. Accordingly, even though the facts of each case may determine how prudent a purchaser of land must act under such circumstances, the facts of this present suit and the evidence before the Court conclusively establish that Plaintiff had actual notice of an encumbrance but made no effort to conduct proper investigations. He acted recklessly and without reasonable care, hence the plea cannot avail him. Whilst Plaintiff argues that the Court below erred when it found that the alleged conveyance is fraudulent as it was not pleaded, the Defendant is of the view that a Court cannot gloss over the perpetration of fraud when there is evidence from the records to support it. Upon a careful examination of the ROA, I find no evidence establishing the perpetration of fraud. I therefore agree that the Court below erred when it found that “…. the alleged conveyance is fraudulent…..” Save that ground (c) contained in the Plaintiff’s notice of appeal succeeds in whole and the part of the judgments concerning and regarding the commission of fraud on the part of the Plaintiff is hereby set aside, the appeal fails. The evidence adduced before the Court below provides no basis for this Court to grant the reliefs being sought by the Plaintiff. CONCLUSION 33 | P a g e Upon a careful consideration of the grounds of appeal, the evidence adduced before the Court below, and the applicable law, I am of the considered opinion that this appeal as it relates to grounds (a) and (b) is unmeritorious and ought to fail. The appeal therefore fails in part and succeeds in part. In the premise, save that the portion of the judgment that imputed fraud in the procurement of the alleged conveyance is set aside, the reliefs being sought by the Plaintiff are denied. (SGD) PROF. OLIVIA ANKU-TSEDE (MRS.) (JUSTICE OF APPEAL) COUNSEL FOR PLAINTIFF/APPELLANT – ERIC ASUMAN-ADU WITH SAMUEL ENYDUAH COUNSEL FOR DEFENDANT/RESPONDENT – JUDE ATAKORA TUFFOUR WITH LORREN BOATENG 34 | P a g e