PREMPEH VRS. DARKEY AND ANOTHER (LD/0771/18) [2024] GHAHC 150 (10 May 2024)

IN THE SUPERIOR COURT OF JUDICATURE IN THE HIGH COURT OF JUSTICE LAND DIVISION HELD IN ACCRA ON FRIDAY, THE 10TH DAY OF MAY, 2024 BEFORE HIS LORDSHIP WILLIAM APPIAH TWUMASI (J) SUIT NO.: LD/0771/18 YAW BOADU PREMPEH - PLAINTIFF HOUSE NO. 25 ANEVON CRESCENT SPINTEX ROAD, COMMUNITY 18 JUNCTION ACCRA VRS 1. CHRISTOPHER KOMLA DARKEY - DEFENDANTS GIFFARD ROAD, TRADE FAIR LA-ACCRA 2. FRANK KWOFI PINTO PLOT 5, NYANKROM JUNCTION SHAMA JUNCTION, TAKORADI PARTIES: PLAINTIFF ABSENT 1ST DEFENDANT ABSENT 2ND DEFENDANT PRESENT JUDGMENT Page 1 of 17 The Plaintiff took out the present Writ of summons against the Defendants claiming the following reliefs; a. A declaration of title to all that piece or parcel of land situate, lying and being at North-West Teshie, Accra and known as Plot No. 3, Airport East Residential Area and bounded on the North by Plot No. 2 measuring 95 feet more or less, on the South by a road measuring 90 feet more or less, on the West by the Plaintiff’s land and a road measuring 90 feet more or less, on the East by Plot No. 5 measuring 85 feet more or less and comprising an approximate area of 0.19 acres more or less and more particularly delineated on the site plan edged pink. b. Recovery of possession of the land. c. Damages for trespass. d. An order for the demolition of the structures. e. An order of perpetual injunction restraining the Defendants either by themselves, their agents, assigns, thugs, hirelings, workmen, servants or howsoever described from interfering with the possession, use and or development of the land, the subject matter of this suit. f. Costs, including solicitor’s fees. g. Any further order(s) the Court may deem fit. The Defendants particularly the 2nd Defendant denied the claim of the Plaintiff and per their amended Statement of Defence and Counterclaim, the 2nd Defendant on the other hand counterclaimed against the Plaintiff for the following: i) A declaration that the 2nd Defendant is the rightful owner of that piece or parcel of land being situate and being at North West Teshie, Accra and known as Plot No. 3, Airport East Residential Area bounded on the North by Plot No. 2 measuring 95 feet more or less, on the South by a road measuring 95feet more Page 2 of 17 or less and on the West by a land and a road measuring 90 feet more or less on the East by Plot No. 5 measuring 95 feet more or less and comprising an approximate area of 0.19 of an acre more or less and more particularly delineated in the site plan and thereon edged pink. ii) Recovery of possession iii) An order of perpetual injunction restraining the Plaintiff, his agents,’ servants, assigns or any person claiming through him from or in any way interfering with the 2nd Defendant’s title to and quiet enjoyment of the land. iv) Costs. v) Any other relief(s) the Court may deem fit. It is noted that apart from a relief seeking an order for the demolition of the structure(s) on the land contained in the Plaintiff’s reliefs, the reliefs sought by the Plaintiff and those by the Defendants particularly by the 2nd Defendant were virtually the same even in words. FACTS The Plaintiff’s case is that he acquired his two (2) plots of land, Plot Nos. 1 and 3 from Sabah Estates Development Ltd. (SEDL) in 2006. Prior to purchasing the two (2) plots he caused a search to be conducted for him at the Lands Commission, Accra and the search revealed that the lands had been registered in the names of his vendor ‘SEDL’ which even has a Land Certificate over same. His searches further revealed that his vendor has actually acquired a large tract of land of which the disputed land only forms a portion. According to the Plaintiff, his vendor executed for him two Deeds of Assignment dated 16th May 2006 and 7th September 2006 in respect of the two (2) plots of land Page 3 of 17 aforementioned and both documents were duly executed by the MD of SEDL his vendor, Dr. Major (RTD) Dr. Mustapha Ahmed (now deceased). According to Plaintiff, because his grantor already had a land certificate over the land, he also commenced the process of transferring the land into his name and he was issued with yellow card by the Lands Commission, an indication that he has commenced his process of transfer of the land into his own name. Because the two (2) plots of land adjoined each other, the Plaintiff states that he went into immediate possession of the land by building a perimeter fence/wall around the properties. He also started developing Plot No. 1 and constructed a wooden kiosk on Plot No. 3 in which he kept his personal belongings. He also kept a caretaker on the lands. He remained in quiet and undisturbed possession of the land from its acquisition in 2006 until 2018 when he detected some acts of encroachment on the land and upon a visit to the land, he realized that it was the Defendants who had broken parts of the fence wall, entered Plot No. 3, the subject matter land and had deposited some sand and stones on same. He immediately lodged a complaint with the police and police investigations into the case revealed that it was the workmen of the Defendants who had encroached on the land. At the police station and since the Defendants also traced their grant to the same Major (Rtd) Dr. Mustapha Ahmed the police advised the parties to settle their dispute amicably with their common grantor. According to the Plaintiff the 2nd Defendant later claimed that he acquired the land from the Lenshie family but the Plaintiff stated that the Lenshie family after divesting itself of any interest in the land since 1996 cannot purport to grant same piece of land to the Defendants. Again, because SEDL had also granted the same parcel of land to the Plaintiff earlier it could not make another grant of the same land to the Defendants, particularly the 2nd Defendant. Page 4 of 17 On the other hand, it is the case of the 2nd Defendant that he approached Dr. Mustapha Ahmed, the MD of SEDL as aforementioned with the view of acquiring the disputed land from his company where upon Dr. Mustapha Ahmed advised him to seek a direct grant from the Lenshie family of Teshie, the allodial owners of the land since his own acquisition was facing some challenges from the said family. On this sound advice from Dr. Mustapha Ahmed, the 2nd Defendant approached the Lenshie family in the company of some officers of SEDL and for valuable consideration the Lenshie family granted the land to him and engrossed a lease over the land in his name. In or around 2018, the 1st Defendant came to inform the 2nd Defendant that the Plaintiff had entered the land with some men in military uniform and had destroyed the foundation of the building he had laid on the land. The matter ended up at the Teshie Police station and both parties were asked by the police to produce their documents over the land. It is the case of the 2nd Defendant that the Plaintiff has no title to the land as his title deed was fraudulently procured. ISSUES SET DOWN FOR TRIAL At the end of the pleadings, the following were the issues and additional issues that were set down by the Court (albeit differently constituted) for the trial. i) Whether the Plaintiff is the bona fide owner of the land in dispute. ii) Whether the Lenshie family having divested itself of their interest in the land to Sabah Estate Development Limited (SEDL) in 1996 could make another grant of the land to the 2nd Defendant in 2006. iii) Whether the 2nd Defendant is estopped by adverse possession from laying claim to the land in dispute. Page 5 of 17 iv) Whether the Defendant have trespassed onto the Plaintiff’s land. v) Whether Plaintiff is entitled to all the reliefs contained in his Writ of Summons. The Additional Issues were also the following; a) Whether the land in dispute belongs to the Lenshie family or Sabah Estates Development Limited. b) Whether the purported lease of the Plaintiff was fraudulently procured. c) Whether the 2nd Defendant is entitled to his counterclaim. RESOLUTION OF THE ISSUES Before I proceed to resolve the issues set down for trial, it is important to state that because of the decision of the Supreme Court in Dalex Finance and Leasing Co. Limited v Ebenezer Denzel Amanor (2021) 171 GMJ 740, especially going by the dictum Pwamang JSC (of course this decision came long after the pretrial in this case on 19th June 2019) it is no more necessary to set down whether a Plaintiff is entitled to the reliefs in his claim or the Defendant to the reliefs in his counterclaim as separate issues for determination because at the end of the judgment, these are the issues that would have been resolved anyway because of this position, I did not discuss issue 5 of the main issues and additional issue (c) as set down at the application for Directions stage. It is settled law that a Court is not bound to strictly determine all the issues that were set down at pre-trial as it may add on, discard or subtract from the said issues. See Fattal V. Wooley (2013-2014) SCGLR 1070 SC (particularly the dictum of Wood CJ) Again, the Court can also join issues and determine them together without treating them individually. Page 6 of 17 See Etajata V. Ologbo (2007) 6 SC (Part 111) pp 3-4, Nigerian SC which although is only persuasive yet I find the reasons to be very good and I therefore was persuaded by the principle laid down in the said case. In much the same way, I hold the humble view that a Court is not bound to discuss the issues as chronologically set down at pretrial but may do so in any order that will bring clarity to the judgment and help the Court to effectively determine the case. Having taken such a position, I discuss the issues in the following manner; Additional Issue (1); Whether the land in dispute belongs to the Lenshie family or to Sabah Estate Development Ltd. (SEDL). It is the principle of law that in a claim for declaration of title to land generally, it is the Plaintiff who bears the burden of proof and this was the decision in Jass Co. Ltd & Anor v. Appau & Anor (2009) SCGLR 265, cited to me by learned Counsel for the Plaintiff. The relevant portion of this decision can be seen in holding 1 of the headnotes where the Supreme Court among other things held as follow; “The burden of proof is always placed on the Plaintiff to satisfy the Court on the balance of the probabilities in an action for declaration of title to land where the Defendant has not counterclaimed and the Plaintiff has not been able to make out a sufficient case against the Defendant then the Plaintiff’s claim would be dismissed” (Emphasis Supplied) From the above, it is obvious that generally it is the Plaintiff who always bear the burden of proof in a claim for declaration of title as it is in this case. However, from the above quotation, where the Defendant counterclaims as in this case then as far as his counterclaim is concerned, he will then carry the burden to prove his counterclaim because it is the law that where a Defendant counterclaims, then he becomes a Plaintiff as far as his counterclaim is concerned. See Order 13 of CI 47. Page 7 of 17 So, in so far as a Defendant as in this case counterclaims then the burden of proof will automatically shift onto him as far as his counterclaim is concerned. This is also confirmed by the same holding 1 of Jass Co. Ltd & Anor v Appau and another supra, where the Court after the quotation supra went further to state as follows; “Whether a Defendant also files a counterclaim, then the same standard of burden of proof would be used to evaluate and assess the case of the Plaintiff against the Defendant” So, it is clear from the above that since it was the Defendant herein who claimed from the Lenshie family, then as far as that burden of proving whether the said family owed the disputed land such that they granted same to the 2nd Defendant, laid squarely on the 2nd Defendant. To discharge the burden that was placed on him, the 2nd Defendant testified that when he decided to acquire the land in dispute and in the mistaken belief that the land belonged to Dr. Mustapha Ahmed’s Sabah Estate Development Limited (SEDL), he approached the said Dr. Mustapha who was very candid and honest with him and told him that although SEDL had earlier purportedly got a grant of the land from the original owners, the Lenshie family of Teshie, his said company was having some challenges with the Lenshie family over the acquisition and therefore it would be prudent and advisable to approach the said family directly and get his grant from them. Dr. Mustapha was very gracious to him and asked some officers of his company aforementioned SEDL to accompany him to see the said family. The family agreed, made a grant to him and engrossed a lease in his name over the land. This lease was admitted in evidence at the trial without objection and marked as Exhibit “1”. On the other hand, the Plaintiff traces his root of title to the grant supposedly made to him by Dr. Mustapha Ahmed’s SEDL and he tendered the Lease Agreement between him and the said SEDL (supposedly signed by Dr. Mustapha Ahmed) as evidencing the said grant which was admitted in evidence without objection and marked as Exhibit ‘A’. Page 8 of 17 Interestingly, Dr. Mustapha Ahmed testified in the case for the 2nd Defendant as DW1. According to the evidence of DW1, although his company, SEDL had acquired a large tract of land from the Lenshie family of which the disputed land forms a small portion, at the time the 2nd Defendant approached him for a grant of the land in dispute the said family had sued his company aforementioned over the land his company had acquired from them and it was for this reason that he then advised the 2nd Defendant to rather see the said family and get his grant directly from them. From this piece of evidence given at the trial by Dr. Mustapha Ahmed, he largely corroborated the 2nd Defendant’s evidence that indeed it is the Lenshie family and not SEDL (Dr. Mustapha Ahmed’s Company) that owns the disputed land. I therefore rule Additional Issue (1) in favour of the Defendants particularly the 2nd Defendant against the Plaintiff. Issue (B); Whether or not the Lenshie family having divested itself of their interest in the land in dispute to SEDL in 1996 could make another grant of the same land to the 2nd Defendant in 2006. On this particular issue, it is obvious that the onus of proof laid squarely on the Plaintiff to show that the Lenshie family, the original owners of the disputed land actually divested itself of its interest in the land to SEDL, Dr. Mustapha’s company. In fact, since I have already come to the conclusion that Dr. Mustapha Ahmed, the MD of SEDL had himself testified that his company did not validly acquire the disputed land from Lenshie family, this issue of whether the Lenshie family had already divested itself of its interest in the disputed land naturally resolves itself in the negative. The Plaintiff’s claim is that the Lenshie family divested itself of its interest in the land to SEDL and on this issue, who better qualified to testify for the Plaintiff than the very MD of the said Company, Dr. Mustapha Ahmed? But the Plaintiff who was the first to testify did not call Dr. Ahmed Mustapha as his witness but he was nonetheless called by the Defendant to testify for them in the matter. His evidence as we have already stated was Page 9 of 17 that the said transaction between his company and the Lenshie family over the disputed land was inconclusive and therefore the said family did no transfer its interest in the disputed land to his company. I do not respectively think that the Court needs to go into any further evidence to establish anything other than to say that on the totality of the evidence before the Court, the Lenshie family did not divest itself of its interest in the land to SEDL in 1996 and therefore it could make a valid grant of same to the 2nd Defendant. I therefore rule Issue ‘B’ too in favour of the Defendants particularly the 2nd Defendant against the Plaintiff. I will discuss Issues (a) and (c) together. Issue (A); whether or not the Plaintiff is a bonafide owner of the land in dispute; (c) Whether the 2nd Defendant is estopped by adverse possession from laying a claim to the disputed land. From the discussions above, one would have simply answered the question in the negative and ended it there because assuming the Plaintiff even got a valid grant of the land from SEDL, with the evidence of Dr. Mustapha Ahmed that his company itself did not conclusively get a valid grant would have been a shady grounds because the principles of land law is that to be able to acquire a valid interest in land, the claimant must trace his root of title, the mode of acquisition and overt acts of possession as held in Mondial Veneer Ltd. (GH) vrs. Amua Gyebu XV (2011) 1 SCGLR 466 at 475 where the Supreme Court held as follows; “In land litigation, even where living witnesses who were directly involved in the transaction under reference are produced in Court as witnesses, the law require the person asserting title and on who the burden of persuasion falls, as in the instant case to prove his root of title, mode of acquisition and various acts of possession exercised over the subject matter of the litigation” (Emphasis added). Page 10 of 17 From the above quotation in Mondial Veneer GH Ltd. v Amua Gyebu XV, I respectfully state that in possession the land is a pre-requisite of a valid grant of land in Ghana, it is one’s root of title because as held by Lord Denning in Mcfoy v VAC. One cannot put something on nothing and expect it to stay there, it will collapse. Once a person’s grantor admits that he does not have a valid title himself (as in this case where SEDL itself is admitting that it did not acquire a valid grant from Lenshie family, it is only fair to conclude that the Plaintiff himself also could not get any valid grant from the said SEDL family as “nemo dat quod non habet” rule will operate against the Plaintiff. This rule simply translates that one cannot give what one does not have. See Tetteh v Hayford (2012) 1 GLR 412 SC. So, as it is in the case under review since SEDL itself through its own MD, Dr. Mustapha Ahmed aforementioned testified at the trial that it did not acquire a valid grant from the Lenshie family, then it is safe to conclude that it had no valid title in the land to transfer to the Plaintiff. The Plaintiff’s remedy if indeed he could prove that he also got a valid grant from Dr. Ahmed’s SEDL, could be an action against the said Company but the company rather accused the Plaintiff of having procured his title deeds fraudulently. According to the evidence of Dr. Mustapha Ahmed once again, the signature on the Plaintiff’s indenture could not be his signature and besides that according to Dr Mustapha Ahmed all indentures issued by his company were always signed by himself and witnessed by one Yakubu Briamah, the company’s secretary. But in this case of the Plaintiff’s indenture, Exhibit “A” Dr. Mustapha Ahmed testified that the signature on it which was purported to be his signature was indeed not his signature. Page 11 of 17 What is worse, whiles all other indentures issued by his company, Dr. Mustapha Ahmed also testified that Exhibit ‘A’ was not witnessed by Yakubu Briamah but by Charles Kwabena. The following ensued between Counsel for the Plaintiff and Dr. Mustapha Ahmed during cross examination (on the 19th day of July 2022 and captured on pages 2 and 3 of the record of proceedings. “Q: Take a look at page 5 of Exhibit A2 a deed of assignment, that is the signature page so the mark by your company’s name is your signature is that not your case? A: Yes, my lord. Q: Take a look at the Plaintiff’s witness statement filed on 26th April 2021, look at Exhibit A, can you ascertain to this court that your company issued this deed of assignment to the Plaintiff? A: No, my lord. Normally when I sign for the company my secretary signs as a witness whose name is Yakubu Braimah but this one is signed by Nana Ba Charles Kwabena whom I do not know.” As I stated earlier, it was Dr. Mustapha Ahmed from whose company SEDL that the Plaintiff claims to have acquired his interest who should have been called to testify for him but in this case, he testified for the Defendants and denied on oath that his company had not executed any indenture for the Plaintiff and I have no other option than to accept his evidence on this since this said evidence could not be discredited during cross examination. Now my humble view, learned Counsel for the Defendant was right when he submitted in his unnumbered written address after quoting copiously from the Plaintiff’s evidence in chief that the allegation of fraud becomes very clear from the said evidence and is more Page 12 of 17 fortified by looking at the dates the Plaintiff supposedly paid the consideration for the land and the date on which the indenture was executed. According to learned Counsel for the Defendants a view to which I subscribe to, Plaintiff’s indenture had inconsistent dates, 16th May 2006 and 23rd May 2006 as the dates of execution but payment for the consideration was effected, 7th August 2006 almost four months after the dates of execution. I take judicial notice of the fact that generally in Ghana no prudent lessor will issue a lessee with an indenture when he has not received his consideration and in this particular case under review, where the vendor, SEDL, through its MD, Dr. Mustapha Ahmed stated on oath that the Plaintiff fraudulently procured his indenture Exhibit A, I am persuaded to accept his version of the story and reject that of the Plaintiff’s and hold that any payment made by the Plaintiff to SEDL was in respect of Plot No. 1 which has no issues and not the disputed plot. The Plaintiff therefore perpetrated fraud on SEDL as far as the disputed plot was concerned. Now, although fraud per Order 11 r 8 of CI 47 and supported by Section 13(1) of the Evidence Act, 1975 (NRCD 323) must be specifically pleaded, particularized and then proved on oath as held in several cases such as Nti Vrs Anima (1984-86) 2 GLR 134 and Ayeh Akapo v Ayaa Iddrisu (2010) SCGLR 891 and some others, there now appears to be a shift from this strict procedural requirement that allegations of fraud must be specifically pleaded and particularized to a new position where the Courts are now saying that even if fraud has not been specifically pleaded and particularized but in the evidence before the Court (such as in this case) fraud can be said to have been proved, the Court must hold that indeed there is fraud in the matter. See for example Appeah V Asiamah (2003-2004) 1SCGLR where the Supreme Court speaking through the eminent Brobbey JSC, stated that though ordinarily fraud must be pleaded and particularized, yet notwithstanding the rules on pleadings, the law is that Page 13 of 17 where there is clear evidence of fraud on the face of the record the Court cannot ignore same. See the earlier case of Amuzu v Oklika (1998-99) SCGLR 191 where the Supreme Court came to the same conclusion as it did in Appeah V. Asamoah supra. Now having found that the Plaintiff perpetuated fraud on SEDL, I will rely on Okotoh Estates Ltd v Modern Sign Ltd. (1996-97) SCGLR 233 and hold that because fraud vitiates everything the Plaintiff’s attempt to rely on adverse possession (which I failed to find anyway), will not avail him. In conclusion I rule on issues (b) and (c) too in favour of the Defendant particularly the 2nd Defendant and against the Plaintiff. Additional Issue (2); Whether the purported lease of the Plaintiff over the disputed land was fraudulently procured. From my discussions of issues (b) and (c) as can be seen from the immediately preceding paragraphs, since I have already made a determination that the Plaintiff procured his lease over the disputed land fraudulently. I therefore rule Additional Issue (2) too in favour of the Defendants particularly the 2nd Defendant against the Plaintiff. Issue (a); Whether the Defendant have trespassed unto the Plaintiff’s land. From the judgment of this Court supra, the 2nd Defendant got a valid grant of his land from the true allodial owners of the land, the Lenshie family of Teshie. He Plaintiff’s claim totally collapsed in the face of the mountain of evidence led at the trial and therefore the Plaintiff cannot be held to be the owner of the disputed land to say that the Defendant has trespassed onto it. So once again I rule on issue (d) in favour of the Defendants against the Plaintiff. CONCLUSION Page 14 of 17 From the totality of the evidence led at the trial, I come to an irresistible conclusion that on the balance of the probabilities, the Plaintiff could not prove his case and accordingly same fails and it is hereby dismissed conversely the Defendants particularly the 2nd Defendant was able to prove his counterclaim on the preponderance of the probabilities and I therefore enter judgment in favour of the Defendants particularly the 2nd Defendant for all the reliefs he sought from the Court. I make the following orders: i) I decree title in favour of the 2nd Defendant in all that piece or parcel of land as described in his statement of claim. ii) I order the 2nd Defendant to recover the land mentioned in (i) supra from the Plaintiff or whosoever is in possession. iii) I grant perpetual injunction restraining the Plaintiff, his agents, assigns, workmen etc. and all those claiming through the Plaintiff from or in any way interfering with the Defendant’s quiet enjoyment of the land described in (i) supra. Having regard to the fact that the case did not stay very long in Court and it was also not all that complex, I award costs of GH¢20,000.00 inclusive legal fees to the 2nd Defendant and against the Plaintiff. I cannot conclude this judgment without stating that I did not find any scintilla of evidence against the 1st Defendant in this whole case and I think he was wrongfully sued. I therefore award costs of GH¢30,000.00 against the Plaintiff and in favour of the 1st Defendant for the waste of his precious time and resources. I noticed that the 2nd Defendant did not seek general damages from the Plaintiff and therefore ordinarily, he is not entitled to an award of general damages although in my humble view on the evidence he was entitled to general damages. Page 15 of 17 In Muller V. Home Finance Co. Ltd (2012) 2SCGLR 1234 where the Supreme Court was faced with a similar situation, the Court held as follows: “The Supreme Court will agree with the Court of Appeal to a large extent that the duty of the trial Court was to enter judgment for the party for what it asked for and not to give him what the Court thought he needed. However, it was fairly now established that on the principle of doing substantial justice, the Court might in some circumstances grant a party’s relief not asked for provided the grant of the relief(s) would help achieve substantial justice in the case and bring the litigation to an end. The Court further held that where reliefs that have not been sought are nonetheless may have to be awarded by the Court, the Court must ensure that the reliefs emanated from the pleadings and the evidence before it. See also Ampomah v. Nyamaah (2008-09) 2 GLR 284. From the evidence before the Court as well as the pleadings, the 2nd Defendant stated that he had a foundation on the land showing that he was about to build on same but that was supposedly destroyed by the Plaintiff and/or his agents. Again, I also take judicial notice of the sky-rocketing nature of building materials and that because of the Plaintiff’s unlawful claim to the land in dispute, the 2nd Defendant’s building project stalled and he may now have to spend much more money than he would have spent to construct his house and this would not have been the case if the Plaintiff had not laid his unlawful claim to the land. To that end therefore, I think an award of GH¢60,000.00 general damages to the 2nd Defendant is fair and just in all the circumstances of the case and I so award. (SGD) WILLIAM APPIAH TWUMASI (J) COUNSEL: Page 16 of 17 ISSAC ABURAM LARTEY FOR ERIC MENSAH FOR THE PLAINTIFF BAFFOUR ASARE KORANG FOR THE DEFENDANTS Page 17 of 17