Teiko and Another Vrs National Investment Bank Ltd. [2023] GHAHC 344 (31 July 2023)

IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT OF JUSTICE (LAND DIVISION) ACCRA HELD ON MONDAY THE 31ST DAY OF JULY, 2023 BEFORE HER LADYSHIP JUSTICE JENNIFER MYERS AHMED (MRS), JUSTICE OF THE HIGH COURT. 1. GEORGE AYI TEIKO Plaintiffs LDT/1383/2016 2. SAMUEL OKOE AFOTEY VRS NATIONAL INVESTMENT BANK LIMITED Defendant JUDGMENT This instant suit was initiated by the Plaintiffs by the issuance of a Writ of Summons with an accompanying Statement of Claim on the 21st October, 2016. The facts, as gathered from the Statement of Claim, are that, in the year 2010, the Government of the Republic of Ghana released portions of the Nungua land which had been compulsorily acquired as far back as 1940 to the Nungua Stool. Between the 2010 and 2011, the Plaintiffs approached the Paramount Chief of the Nungua Traditional Area, King Odaifo Welentsi II and his elders to sublease portions of the said released lands to them. According to the Plaintiffs, the necessary searches were conducted and the land was duly registered in their names. These searches, per paragraph eight (8) of the Statement of Claim indicated that the land was indeed in the name of the Stool before they purchased same. An indenture dated 20th February, 2015 was executed evidencing the transaction between the Plaintiffs and the Paramount Chief of the Nungua Traditional Area. The description of the land is as stated in paragraph seven (7) of the Statement of Claim. The Plaintiff avers that the land in dispute was leased for a term of Eighty-five (85) years. The Plaintiffs aver that they contracted workers to start building a fence wall around the land and about three (3) weeks, when the workers returned to continue work, officials from the Defendant Company came with policemen to arrest the workers. The Plaintiffs produced their documents of the land in dispute at the police station after which the said workers were granted bail. It is the case of the Plaintiffs that the Defendant never produced any document evidencing their alleged title to the land in dispute yet any time the Plaintiffs’ workers go onto the land to continue working, they are met with disturbances from the Defendant Company. On the basis of the above stated facts, the Plaintiffs claim against the Defendant the following reliefs: 1. A declaration of title to all that piece or parcel of land situate lying and being at Nungua Akononku, in the Lekma District in the Greater Accra Region of the Republic of Ghana and bounded on the North-West by proposed road measuring 450.9 feet more or less, on the North-East by Lessor’s land measuring 434.2 feet more or less, on the South-East by Lessor’s land measuring 438.1 feet more or less, on the South-West by the Lessor’s land measuring 443.0 feet more or less and containing an approximate Area of 4.464 acre or 1.806 Hectare more or less situate at Spintex. 2. An order for perpetual injunction against the Defendants, its agents, assigns or privies and each of them from entering or otherwise dealing with the possession of the subject matter of the suit in any way. 3. Damages for trespass. 4. Costs. The Defendant, by an Amended Statement of Defence and Counterclaim generally denied the claims of the Plaintiffs. The Defendant’s side of the story as gleaned from its amended Statement of Defence and Counterclaim is that, it traces its root of title to Olsworth Ltd, which at all material times, was a customer of the Defendant. The Indenture evidencing title or interest of the said Olsworth Ltd is dated 3rd February, 2000 and executed between Numo Borketey Laweh, Gborbu Wulomo and Nii Bortrabi II, Mankralo and Acting Nungua Mantse of the one part and the said Olsworth Ltd of the other part. The description of the subject matter of the indenture (which is the land in dispute) is as stated in paragraph 7 of the Amended Statement of Claim and Counterclaim. Olsworth Ltd took possession of the land and remained in effective possession of same from 2000 and constructed a building on the land where it operated its business. According to the Defendant, in or about September 2004, the Defendant granted Olsworth Ltd a loan facility which was secured with, inter alia, the property (which is the land in dispute). Upon default in repayment of the facility, the Defendant issued out a Writ of Summons against Olsworth Ltd and its Directors and obtained judgment against the latter. The land in dispute was subsequently attached by way of execution and sold at a public auction with the Defendant being the successful bidder. The Defendant says that on 31st July, 2007 a certificate of purchase was issued in favour of the Defendant by the Registrar of the Court and thus has been in possession of the property since 2007. The Defendant further states that in 2014, long after it had purchased the property, the Defendant’s interest in the land in dispute was affirmed by a judgment delivered in Suit No. BMISC. 159/2008 intituled Fovitor Kumordzie v National Investment Bank & 3 Others. It is the case of the Defendant that, the property in dispute having been purchased by the Defendant at a public auction, the Plaintiffs are estopped from challenging the Defendant’s ownership of the property and/or laying any claim to any portion of the property. The particulars of the above stated averments are reproduced as follows: a. Plaintiff did not file any notice to lay claim to the Property when it as attached. b. Plaintiff did not file any notice to lay claim to the property when it wa put up for sale. c. Plaintiff did not take any step to challenge the sale of the Property to the Defendant. d. Plaintiff did not take any step to challenge Defendant’s taking possession of the property. e. The sale has become absolute. The Defendant also pleaded limitation and contended that the Defendant and its predecessor in title have been in uninterrupted possession and control of the land since 2000 thus the Plaintiffs are barred from laying a claim to Defendant’s property. On account of the above stated facts, the Defendant counterclaimed against the Plaintiffs as follows: a. Declaration of title to all that piece of land situate, lying and being at Nungua-Accra containing an approximate area of 0.98 acre and bounded on the North by Lessors’ land measuring 212.3 feet more or less, on the East by Lessors’ land measuring 200.6 feet more or less, on the South by Lessors’ land measuring 210.5 feet more or less and on the West by Lessors’ land measuring 203 feet more or less was for a period of 99 years. b. An order of perpetual injunction restraining the Plaintiffs, their assigns, agents and workmen from interfering with the Defendant’s quite enjoyment of the property. c. Costs. The Plaintiffs’ Reply filed on 14th December, 2016 was not amended. The Plaintiffs generally joined issues with the Defendant on its defence. The Plaintiffs aver in paragraph 4 of their Reply that the Defendant’s property is not the same as the Plaintiffs. The Plaintiffs further aver that as at 2000 the land in dispute was under the possession and control of the Government of Ghana. The Plaintiffs contend that the Defendant is not entitled to its counterclaim. At the close of pleadings, the following issues set out in the Defendant’s Application for Directions were adopted as triable issues: 1. Whether or not the Plaintiffs have any legitimate interest in the Land in dispute. 2. Whether or not the Defendant has any interest in the Land in dispute. 3. Whether or not the Plaintiffs are estopped from challenging the Defendant’s ownership of the land. 4. Whether or not Plaintiffs’ action is statute barred. 5. Whether or not Plaintiffs are entitled to their claims. 6. Whether or not Defendant is entitled to its counterclaim. 7. Any other issue(s) arising from the pleading. Before proceeding to evaluate the evidence adduced by the parties and make an analysis of the applicable law, I shall briefly state the law on whom the bears the burden of proof in this instant case. A party in a civil suit must prove his case on the preponderance of probabilities. This has been defined as the degree of certainty of belief in the mind of the court by which it is convinced that the existence of the fact is more probable than its non-existence. See section 12 of the Evidence Act, 1975 (N. R. C. D. 323). The Supreme Court in the case of ACKAH V PERGAH TRANSPORT LTD (2010) SCGLR 728 at 736 held that: “It is a basic principle of the law on evidence that a party who bears the burden of proof is to produce the required evidence of the facts in issue that has the quality of credibility short of which his claim may fail… It is trite law that matters that are capable of proof must be proved by producing sufficient evidence so that on all the evidence a reasonable mind could conclude that the existence of the fact is more reasonable than its non-existence”. It was also held in the case of ZABRAMA V SEGBEDZI [1991] 2 GLR 221 at 224 that: “A person who makes an averment or assertion, which is denied by his opponent, has the burden to establish that his averment or assertion is true”. The above holding of the Supreme Court has clearly played out in this case. The Plaintiffs have made numerous averments in their Statement of Claim which have been denied by the Defendant. Applying the rule above, the Plaintiff bears the onus of proof in this case. However, it is trite that a Defendant bears the onus to prove his counterclaim. This stems from the principle of law that a counterclaimant is as good as a Plaintiff in respect of the counterclaim. Therefore, the Defendant herein assumes the same standard of proof as the Plaintiff. It is settled law that a person claiming a declaration of title to land puts his own title in issue and must prove the following essential facts: a) Root of title, (b) Mode of acquisition and (c) Various acts of possession exercised over the land. It is also worth noting a party relying on a derivative title must prove the title of his grantor. See YEHANS INTERNATIONAL LTD V MARTEY TSURU FAMILY AND ANOTHER (J4/34/2018) DATED 24TH OCTOBER, 2018 (DELIVERED BY THE SUPREME COURT) and AWUKU V TETTEH [2011] 1 SCGLR 366. It is only where the party has succeeded in establishing these facts on the balance of probabilities that the party would be entitled to the claim. This was emphasised by the Supreme Court in the case of MONDIAL VENEER (GH) LTD V AMUAH GYEBI XV [2011] 1 SCGLR 466 AT PAGE 476. The law also requires a party claiming a declaration of title to land to prove the identity and the limits of the land failing which, his claim must fail. This is because, any order or judgment made in respect of a land whose identity is uncertain is an order made in vain and the judgment also cannot operate as res judicata to prevent the parties from re-litigating the same issues in respect of the said land. See ANANE V DONKOR; KWARTENG V DONKOR (CONSOLIDATED), [1965] GLR 188; JASS CO. LTD AND ANOTHER V APPAU AND ANOTHER [2009] SCGLR 265 There are a plethora of cases establishing the fact that, even though the courts require the identity of the dispute land to be clearly established or established with certainty as a precondition for a grant of title, proof of the identity of land does not mean or connote proof with mathematical accuracy. See NORTEY (2) V AFRICAN INSTITUTE OF JOURNALISM AND COMMUNICATION AND OTHERS (NO.2) [2013-2014] SCGLR 703 at 714. The Witness Statement of the 1st Plaintiff is not very different from the Plaintiffs’ Statement of Claim. He states that the land in dispute forms part of a large tract of land belonging to the people of Nungua. Further, in the year 1940, the government acquired a large tract of land including the land in dispute for and on behalf of the University of Ghana. In 2010, the Government released part of the acquired land which included the subjected matter of this suit to the Nungua Stool. EXHIBIT A was attached as proof of this fact. He proceeds to state further that, in 2015, the Plaintiffs acquired the disputed land from the Nungua Stool. EXHIBIT B is an indenture evidencing the transaction between the Nungua Stool and the Plaintiffs. It is discernible from the above that the Plaintiffs trace their root of title to the Nungua Stool, a lessee of the Government of Ghana. However, there is no evidence on record satisfying this Honourable Court that in the year 1940, the State compulsorily acquired vast lands for and on behalf of the University of Ghana. There is also no evidence to the effect that, granted the State compulsorily acquired these lands, the said acquisition included the land in dispute and that the disputed land forms part of land leased to the Nungua Stool by virtue of EXHIBIT A. According to the schedule to the said Lease executed in favour of the Nungua Stool, the subject matter of the lease is situate at North of Nungua (Borteman) in the Tema Municipal Assembly. In a subsequent Sublease between the Nungua Stool and the Plaintiffs herein (EXHIBIT B), it is clear from its schedule that the subject matter of the sublease is situate at Nungua Akononku, in the Tema District of the Greater Accra Region of the Republic of Ghana. The said Schedule is reproduced below: THE SCHEDULE REFERRED TO: ALL THAT PIECE OR PARCEL OF LAND situate lying and being at NUNGUA AKONONKU in the Tema District of the Greater Accra Region of the Republic of Ghana and containing an approximate area of 0.500 Acres more or less and bounded on the North by a Proposed Road Measuring 94.0 feet more or less on the East by Sub-Lessors’ Land measuring 230.0 feet more or less on the West by Sub-Lessors’ Land measuring 232.3 feet more or less on the South by a Proposed Road measuring 94.7 feet more or less which said piece or parcel or land is more particularly described and delineated on the Plain attached hereto and thereon shown edged Pink:- The fact that the Plaintiffs’ description of the disputed land in paragraph 7 of their Statement of Claim is inconsistent with the above schedule could not have passed unnoticed. Paragraph 7 of the Plaintiffs’ Statement of Claim is also reproduced before for ease of reference: By a deed dated 20th day of February, 2015, the King Odaifio Welentsi III, the Paramount Chief of Nungua Traditional Area sub-let to the Plaintiffs all that piece or parcel of land situate lying and being at Nungua Akononku in the Lekma District in the Greater Accra Region of the Republic of Ghana and bounded on the North-West by Proposed Road measuring 450.9 feet more or less on the North-East by Lessor’s land measuring 434.2 feet more or less on the South-East by Lessor’s land measuring 438.1 feet more or less on the South-West by Lessor’s land measuring 443.0 feet more or less and containing an approximate Area of 4.464 Acre or 1.806 Hectare more or less. It is clear the Plaintiffs are claiming title to a land different from the subject matter of the sublease dated 20th February, 2015. I believe the description of the land (subject matter of the sublease) in paragraph 7 stems from the site plan attached to EXHIBIT B. This Court is of the considered view that the purpose of a site plan is to provide or introduce some degree of certainty in identifying a land, the subject matter of a conveyance. Section 281 of the Land Act, 2020 (Act 1036) defines a site plan as a plan that shows the boundaries of land with accuracy, and giving exact measurements by which the boundaries may be demarcated on the ground, and that is made in conformity with the result of a survey carried out by an official surveyor or licenced surveyor and that has been certified by that surveyor and approved by the Director of the Survey and Mapping Division. It can be inferred from the above definition that a site plan must relate to the conveyance. The boundaries or description on the site plan must correspond to that in the Schedule to the Conveyance. This is because, a site plan is drawn on the basis of the description of the land as stated in the conveyance. It is the duty of any person who acquires a piece of land to ensure that the documents or site plan attached to his/her document of title actually delineates the land acquired by him or her. This was upheld by the Court of Appeal in the case of TACKLE V LAMPTEY [2001-2002] 2 GLR 186. In the instant case, the site plan clearly does not delineate the land acquired by the Plaintiffs thus, the Plaintiffs cannot seek a declaration of title in respect of the land improperly described in the purported site plan. In Nii Tackie Amoah VI v Nii Armah Okaine & Others; Civil Appeal No. J4/59/2013, delivered on 15th January 2014, it was held that the established principle of law requires the plaintiff to lead clear evidence as to the identity of the land claimed with the land the subject matter of his suit. And where, as in the instant suit, he is unable to do so, then his claim for title fails. The Defendant, on the other hand, traces its root of title to Olsworth Limited. In the Witness Statement of Betsy Acquaah-Harrison for the Defendant (which is also not so different from the Defendant’s Amended Statement of Defence) the land in dispute was leased to the said Olsworth Ltd for 99 years by Numo Borketey Laweh, Gborbu and Nii Bortrabi Obroni II, Mankralo and acting Nungua Mantse. Olworth Ltd then took possession of the land from the year 2000 and constructed a building on the land. Olworth Ltd, in or about September 2004, took a loan from the Defendant herein wherein the former defaulted. Upon default, the Defendant herein obtained judgment for the sale of the property of Olsworth, the subject matter of this suit. A certificate of purchase was issued in favour of the Defendant, being the highest bidder, by the Registrar of the Court (EXHIBIT 1). Betsy Acquaah-Harrison further stated that the Defendant’s title was affirmed by a judgment (EXHIBIT 2). It can be said that exhibit 1 is evidence of a valid and absolute sale of the land in favour of the Defendant. A certificate of purchase issued under Order 45 rule 11(3) of the High Court (Civil Procedure) Rules, 2004 (C. I. 47), in my view, is prima facie evidence of title and thus the Defendant obtained good title by virtue of Exhibit 1. It is worth stating that Exhibit 1 was not in any way challenged by the Plaintiffs under cross-examination. The law is that, where a party gives evidence of a material fact and is not cross-examined on same, he needs not call further evidence to corroborate that fact. This is because such failure is deemed to be an admission of those matters. See KUSI AND KUSI V BONSU 2010 SCGLR at 60; FOLI V AYIREBI [1966] GLR 627. The evidence is also clear that the Defendant is in possession of the land in dispute. According to paragraph 13 of the Witness Statement of Betsy Acquaah-Harrison, the Defendant took possession of the property and has been in possession of same since 2007. This fact has also not been challenged by Counsel for the Plaintiff. In fact, during the cross-examination of the 1st Plaintiff, he admitted the Plaintiffs are not on the land. The following ensued during the cross-examination of the 1st Plaintiff: ‘Q: At the last adjourned date you told this court that you have been on the land since 1998 is that the case? A: That is the case. Q: Are you still on the land? A: That land has been granted since 2015. Q: My question is are you still on the land? A: No My Lord.’ The law is that possession is nine points of the law. Thus a person in possession has good title against the whole world except the one with a better title. See ELIZABETH OSEI V MADAM ALICE EFUA KORANG [2013] 50 GMJ 26. This point is further buttressed by section 48(1) of the Evidence Act which provides that the things which a person possesses are presumed to be owned by him. From this provision, possession clearly evinces a rebuttable presumption of ownership. This presumption is rebutted only by adducing evidence of a better title and a party against whom this presumption operates cannot oust the person in possession by setting up a bogus or fictitious title to the same land. See SUMMEY V YOHUNO & OTHERS [1962] 1 GLR 160. On the totality of the evidence before me, the Plaintiffs herein have not demonstrated a better title to the land in dispute. As stated supra, the identity of the land, in respect of which the Plaintiffs seek a declaration of title, is seriously in doubt. Further, the Plaintiffs failed to satisfy this Court that there was indeed an acquisition of lands by the State in 1940 which encompasses the land in dispute. Granting that the State acquired such lands in 1940 and only leased part of the said land to the Nungua Stool in 2010, there is no evidence to satisfy this Court that the disputed land forms part of the lands where were, in the 1st Plaintiff’s words, released to the Nungua Stool. There is nothing substantial in the Plaintiffs’ evidence which rebuts the presumption of ownership in favour of the Defendant. On the other hand, I am convinced the claims and assertions of the Defendant are more probable than that of the Plaintiffs. The Defendant successfully established or traced its root of title to Olsworth Ltd who in turn traces its root of title to Numo Borketey Laweh, Gborbu Wulomo and Nii Bortrabi II, Mankralo and Acting Nungua Mantse per a deed dated 3rd February, 2000. Also, there is more certainty to the identity of the land claimed by the Defendant than that of the Plaintiff. For all the foregoing reasons, the Plaintiffs’ action fails and they are thus not entitled to their reliefs. Judgment is hereby entered in favour of the Defendant in respect of its counterclaim. Cost of Gh¢ 10,000.00 awarded in favour of the Defendant. JENNIFER ANNE MYERS AHMED (MRS.) (JUSTICE OF THE HIGH COURT) 15