BLANKSON-HEMANS VRS ENTI (H1/97/2023) [2023] GHACA 176 (23 November 2023)

IN THE SUPERIOR COURT OF JUDICATURE IN THE COURT OF APPEAL ACCRA CORAM: ANTHONY OPPONG, JA (PRESIDING) JEROME NOBLE NKRUMAH, JA AFIA SERWAH ASARE BOTWE, (MRS) JA SUIT NO: H1/97/2023 DATE: 23RD NOVEMBER, 2023 1. CHARLES BLANKSON-HEMANS 2. JOSEPHINA BLANKSON-HEMANS ... PLAINTIFF/RESP. VRS. PETER ENTI ... DEFT./APPELLANT J U D G M E N T ANTHONY OPPONG, JA This is an appeal against the judgment of the High Court, Land Division, Accra. The said judgment is dated 18th November, 2021. By the said judgment, the trial judge dismissed the counterclaim of defendant/appellant (hereinafter to be called simply as appellant) and granted the plaintiffs/respondents (to be referred to hereafter simply as respondents) the following reliefs: 1. Title to the disputed land situate in the Mantey Tsuru vicinity at East Airport, Accra from the Mantey Tsuru family of the Teshie per their head of family Laryea Marteye is therefore decreed in favor of the plaintiffs 2. Per the evidence before the Court, the court hereby declares that the lease dated 7th September, 2000 was procured through fraud 3. Plaintiffs to recover possession of the disputed land from the defendant 4. The Defendant, his agents, servants, privies, assigns are hereby perpetually injuncted from having anything to do with the land that has been declared in favor of the plaintiffs 5. The court assesses general damages at GHC10,000.00 in favor of the plaintiffs 6. Costs including litigation expenses is awarded against the Defendant in the sum of GHC10,000 and in favor of the Plaintiffs The appellant’s dissatisfaction of the judgment was premised on, firstly, the issue of fraud by which the appellant contended that, to the extent that plaintiff failed to properly plead and particularize and prove fraud beyond reasonable doubt, the trial judge erred in holding that the grant of the land to defendant’s grantor was procured by fraud. The appellant, secondly, contended that the trial judge erred in her judgment in decreeing title to the land in respondents when the land had already been granted to appellant’s grantor and that there was no valid site plan in the respondents’ indenture at the time of its execution. The appellant thirdly accused respondents of not being prudent purchasers as respondents ignored the structures and the presence of appellant’s caretaker on the land at the time respondents purported to acquire the land. Fourthly, the appellant finds fault with the trial court; criticizing the trial court of not applying the bar against the case as enshrined in the Limitation Decree, 1972 (Act 54); contending that his grantor had been in possession of the land for over 15 years before the commencement of the action at the trial court. The appellant lastly relied on the not unusual omnibus ground that the judgment of the trial court is against the weight of evidence. By way of preliminary comment, it is observed that grounds a, b, c and d asseverate that the trial judge erred in law on various matters in her judgment without the appellant stating the particulars of the so-called errors. That omission on the part of appellant renders those grounds offensive of Rule 8(4) of the Court of Appeal Rules, C. I.19 which states that where the grounds of appeal allege misdirection or error in law, particulars of the misdirection or error shall be clearly stated. Indeed, there are several cases in which this Court and the Supreme Court had impressed it upon legal practitioners as to the dire need to provide particulars of error of law alleged in grounds of appeal. For instance, in the case of Dahabieh v. S. A. Tuiqui & Brothers (2001-2002) SCGLR 498, when striking out non-particularized allegations of error of law in the grounds of appeal, Adzoe JSC had this to say at page 504 of the Report: “Clearly, the intention behind rule 6 of C.16 (which is the same as rule 8 of C. I.19) is to narrow the issues on appeal and shorten the hearing; by specifying the error made by the lower court or by disclosing whether or not a point at issue had earlier been raised. By that way, both the court and counsel for the respondent would be enabled to concentrate on the relevant parts of the evidence in the record of [proceedings (or the kind of law misapplied or not applied or distinguished) and not waste time on irrelevant parts of the evidence. With respect to questions of law, it is necessary that the respondent and his lawyers know well in advance what points of law are being raised so that they may prepare their case and marshal their authorities, while an indication that the point of law was or was not raised in the court below may help the court to resolve the issue faster” As a matter of the law, where an appellant alleges misdirection or error of law in the grounds of appeal without specifying the particulars thereof, all such grounds become inadmissible and would be struck out and so in this case where the grounds alleging error of law fall foul of rule 8(4) of C. I. 19, they are rendered deserving of being struck out. Nonetheless, in view of the fact that the matters mentioned in those inadmissible grounds of appeal touch and concern the evaluation of evidence, coupled with the fact that they could all be conveniently subsumed and considered under the omnibus ground as alleged by the appellant that the judgment of the trial court is against the weight of evidence which throws the case up for re-hearing, all the matters raised would be duly considered against the background that the respondents in their written submission took up the opportunity and addressed all the matters involved. In other words, in the interest of doing substantial justice, in this delivery, this court will rehear the matter in terms of all the matters addressed by both parties in their respective written submissions in this appeal. The first issue to be tackled is the question of fraud that was raised. The question is whether the respondents who pleaded fraud satisfied the law in terms of stating proper particulars of the so-called fraud. The respondents alleged fraud and in paragraph 19 of the Further Amended Statement of Claim filed on the 20th February, 2018 found at page 175 Vol. One of the Record of Appeal (ROA) it was averred that: “19. The Plaintiffs say that the defendant’s act of trespass on their land is premised upon a lease agreement dated 7th September, 2000 which the Defendant’s grantor purportedly acquired from the Martey Tsuru family. The Martey Tsuru family per their head of family Laryea Martei has informed the plaintiffs that the said lease dated 7th September, 2000 was fraudulently procured and as such the purported lease could not have emanated from the family. PARTICULARS OF FRAUD a. That the purported lease dated 7th September, 2000 issued to the defendant’s grantor was issued when the disputed land was earmarked for electricity station b. That the surveyor who purportedly prepared the defendant’s indenture dated 7th September, 2000 is unknown to the Martey Tsuru family c. That the plaintiffs’ grantors family’s surveyor within that period was known as M. K. Ayeko d. That the site plan attached to the defendant’s purported lease dated 7th September, 2000 does not conform to the Martey Tsuru family planning scheme”. It may be observed that the major premise upon which respondents thought the lease dated 7th September, 2000 was obtained fraudulently was even based on a hearsay; what Laryea Martei, the head of Martey Tsuru family had purportedly told respondents. How could the respondents be in a position to vouch for the truthfulness of what Laryea Martei told them? Could it also be that the ungodly desire of Laryea Martei for money to be obtained from the disposal of the land motivated Laryea Martei to deliberately entice respondents to buying the land? On the particulars of the fraud, the learned trial judge found that the respondents could not discharge the burden of leading cogent evidence to establish that the site plan attached to the defendant’s grantor’s lease dated 7th September, 2000 does not conform to the Martey Tsuru family planning scheme. I wonder whether the family, not being a public land administrator, has ever had a planning scheme on their land at all! I cannot help but agree with the finding of the trial court on that issue. Besides, the other particulars of fraud as stated above fell short of the minimum threshold of the requirement regarding particulars of fraud that ought to be stated as espoused by Anin Yeboah JSC in the case of Adumuah Okwei v Ashieteye Laryea (2011) 1 SCGLR 317 to the effect that in stating particulars of fraud, it is imperative to aver that there is a misrepresentation of a certain fact which defendant has made dishonestly by word or conduct with knowledge that same is false and intended for the defendant to rely on to his detriment. The learned Supreme court judge who later became the Chief Justice cautioned that since fraud qua fraud is a serious allegation in legal proceedings to be made, it should not be made when counsel cannot, from available instructions, form a strong opinion in favor of it. It appears to me that learned counsel for respondents, with all due deference, did not pay heed to this valuable advice. In my considered view, the particulars of fraud as pleaded by respondents were woefully inadequate and could not constitute proper plea of fraud that would require any serious enquiry by a court of law. In other words, the particulars of fraud as found in the pleading of respondents are insufficient to amount to an averment of fraud. As a result, the trial court would have acted well within the law if it had paid no notice of the sort of fraud as pleaded. See (Odgers Principles of Pleading and Practice, 18th edition. At page 202). There is one remarkable observation about the particulars of fraud as pleaded by respondents that cannot escape the attention of this Court. The alleged particulars did not relate to any conduct by word or action or inaction of defendant. They rather related to defendant’s grantor and the lease he obtained from Martey Tsuru family. How could defendant be fixed with liability of a perceived fraud purportedly committed by a third party by which he (the defendant) did not assist in any way? It is trite law that the kind of fraud which must bind a party must be his own fraud and not that of a third party. No liability attaches for fraud which is not committed, conceived or assisted in its establishment by a party. (See Staffordshire Financial Co. v. Hill (1909) 35 S. J. 446 and Lake v. Simmons (1927) AC 487). The respondents tendered Exhibit A series to show that the land the defendant’s grantor (DW1) acquired was an open space and that it had been earmarked for electricity substation. This evidence was adduced to support the allegation of fraud. The question to be asked is if a family, knowing the status of their land, would grant that piece of their land to someone for good consideration whereby the area concerned is an open space earmarked for electricity substation and we are talking of fraud, the perpetrator of such a fraud, if any, would unquestionably be that family and the victim would be the purchaser. And so, under such circumstance, how can such a family be heard to accuse the grantee of the victim of the fraud on the score that the land acquired was an open space earmarked as substation for electricity? In any event, the respondents’ attack on the grant of the land to DW1, appellant’s grantor, on the ground that the subject matter of the grant at the material time happened to be zoned for open space and for electric substation is of no moment. This is because even if it were true that the subject matter land had been zoned as an open space or electricity substation, that fact did not detract from Martey Tsuru family’s ownership of the land as the planning for land use of an area has nothing to do with title or interest in the land; the ownership of the land, especially in this case where there is no evidence suggesting that the area concerned is public land by virtue of its acquisition by statute for any public use. Furthermore, what is worthy of note is the fact that the probative value of Exhibit A series is questionable as long as these Exhibits were obtained by respondents in the year 2017 when this litigation was raging on in the trial court. It is trite that a party who unilaterally goes out of his way to obtain a document in the course of a pendency of a legal dispute will invariably be motivated to so obtain the document to either cure a deficiency in his case or take an undue advantage and to the detriment of the other party to shore up his case, hence the unattractiveness of attaching any probative value to such evidence. In other words, a document obtained unilaterally by one party during the pendency of a dispute without seeking nor obtaining the direction of the court ought to be viewed with utmost suspicion and such a document ought not to weigh on a court of law so as to determine an issue in favor of the party who brings in such document in that manner. In Gyawu v. Adu Gyamfi (2018-2019) 1 GLR 365 Aduama Osei JA commenting on a situation where one party went out of his way to undertake boundary fixing exercise while a suit was pending had this to say at page 380 of the Report: “Also, the boundary-fixing exercise was undertaken at a time when this suit was pending and therefore, there was an incentive to manipulate the exercise to cure deficiencies in the case of one party or the other. In this circumstance, hardly any probative value could be attached to evidence of the exercise and its outcome” Learned counsel for appellant submitted that “even assuming without admitting that the land was an open space earmarked as electricity substation at the time appellant’s grantor acquired same and it was later re-zoned by the Planning Authorities for residential purpose, same did not affect the title or interest of the appellant and his grantor by virtue of the doctrine of feeding the grant by estoppel”. I totally agree with the said submission. What is being expressed is that even if the Martey Tsuru family had no interest or title in the land granted to the appellant’s grantor at the time the family granted the land because the land was an open space earmarked for electricity substation, but later the family acquired the requisite interest or title earlier granted that title automatically would go to the earlier grantee. Aduama Osei JA in the case of Gyawu v. Adu-Gyamfi (supra) expressed succinctly the doctrine of feeding the grant by estoppel in the following words: “Where a person not being the owner of the property, had fraudulently or erroneously represented himself as the owner of the property or as having authority to transfer to a transferee who had purchased in good faith and for consideration, the right of the transferee did not diminish. In that situation, the transferee had the option of rescinding the contract or keeping it alive. If he opted to keep alive the contract and subsequently the transferor acquired the interest he purported to transfer but which he did not have at the time of the sale, the interest will automatically go to the transferee” See also the case of Serwah v. Adjen II alias Nkrumah (1992) 1GLR 296, CA It must be stressed that even if the land under consideration was zoned as an open space earmarked as electricity substation, that would have been so for planning purposes only and that that would have nothing to do with title or interest in that land, especially so when there is no showing that the land had been acquired by the state or had become public land under any law, statute or instrument. In paragraph 19(b) of the Further Amended Statement of Claim of the respondents, it was stated that the indenture dated 7th September, 2000 which was given to appellant’s grantor by Martey Tsuru family was procured by fraud because that indenture was not prepared by the Martey Tsuru’s surveyor. There was actually a finding by the learned trial judge to this effect. In my considered view that finding is not supported by the preponderance of the probabilities of the facts in this case in the face of Exhibit 1 found at page 33 of Vol 2 of the ROA. A critical examination of the back of Exhibit 1 at page 41 of Vol. 2 of the ROA, that is, the indenture dated 7th September, 2000 shows that it was prepared by one lawyer S. K. klayson, Esq. but never a surveyor. Indeed, an indenture could only be and invariably prepared by a lawyer but not a surveyor. So, for the respondents to seek to impugn the grant of the land to appellant’s grantor on grounds of fraud on the basis that the conveyance executed in favor of appellant’s grantor by the Martey Tsuru family was not prepared by a surveyor sounds very incongruous and foul in the mouth of respondents. Exhibit 1 shows clearly that on the 7th September, 2000, the Martey Tsuru family then represented by Emmanuel Mama Larbi, Mama Martei and Kwao Martey acting as lessors granted the disputed land to Kwow Richardson (DW1), appellant’s grantor, as lessee. In contrast, Exhibit C shows that the same Martey Tsuru family, this time represented by Laryea Marteye acting as lessor on the 24th September, 2015 granted the disputed land to respondents as lessees. (Exhibit C is found at page 50 of Vol 1 of the ROA). In the circumstance, the principle of nemo dat quod non habet kicks in ruthlessly against the grant of the land to respondents. The point to be noted is that the 2000 conveyance of the land to Ekow Richardson (DW1), appellant’s grantor by Martey Tsuru family divested the said family any further right, title or interest in the land such that the same land could therefore not be subsequently conveyed or granted to respondents in 2015 Professor Kludze JSC explained the principle of nemo dat quod non habet in Brown v. Quarshigah (2003-2004) SCGLR 930 in the following succinct words: “If an interest is validly created in favor of one party…, a subsequent attempt to grant the same land to a different person will be a nullity because the grantor, having divested himself of his interest in the property, would have nothing to grant or convey to a different person. In that circumstance, the earlier grant prevails…. because the purported subsequent grant is null and void” The appellant pointed out serious matters relating to the validity of the site plans attached to the title document of respondents, that is, Exhibit C. The defects in the site plans impugn the integrity or should I say the validity of Exhibit C. Exhibit C has two site plans, one is dated 23rd September, 2015 and the other one is dated 8th December, 2016. The one dated 23rd September, 2015 was not signed by the Director of Surveys contrary to regulation 3(1) of the Survey (Supervision and Approval of Plans) Regulations, 1989 (L. I.1444) which states that “No plan of any parcel of land attached to any instrument for the registration of such instrument shall be accepted by the Chief Registrar of Lands or the Registrar appointed pursuant to the provisions of the Land Registry Act, 1962 (Act 122) unless the plan has been approved by the Director of Surveys or any official surveyor authorized in that behalf in accordance with regulation 2 of these Regulations”(Emphasis Mine) In holding 4 of the case of Nortey (No 2) v. AIJC & Ors.(No. 2) (2013-2014) 1 SCGLR 703 at 707, the Supreme Court had this to say of a site plan that had been tendered in court to prove title but that had not been duly signed by Director of Surveys: “ The Court of Appeal had rightly held that Exhibit A (a site plan), tendered in evidence by the plaintiff in apparent proof of his claim of title to the disputed land, i.e. as his root of title, had no probative value because it was not signed by the Director of Surveys or his representative, contrary to regulation 3(1) of the Survey (Supervision and Approval of Plans), 1989 (L. I. 1444), The said regulation 3(1) made it mandatory for plans of any parcel of land attached to any instrument for the registration of such instrument to be approved by the Director of Surveys or any official surveyor authorized in that behalf. Notwithstanding that Exhibit A had been accepted in evidence without any objection, it could not constitute evidence for the purpose for which it had been attached. The courts had a duty to ensure compliance with statutes including subsidiary legislation like LI 1444” Regarding the other site plan dated 3rd November, 2016 attached to Exhibit C, it is observed that it was duly signed by the Director of Surveys on the 8th December, 2016 but the intractable problem with it is that it could not have been in existence at the time the instrument conveying interest in the land was executed on 23rd September, 2015. The effect of all these is that Exhibit C lacks validity as to convey interest in the land to respondents. That is to say that Exhibit C can be said to be without a valid site plan and so it cannot vest title in the respondents. Indeed, the Supreme Court has held in the case of Buildaf v. Catholic Church (2017-2020) 1 SCGLR 1143 at 1164 to the effect that a deed of assignment of land cannot be complete without a site plan and it is legally invalid. Having regard to the existence of these invalidating matters affecting Exhibit C, the title document respondents relied on, it is my considered view that, the trial court ought not to have relied on it to decree title in the land in favor of respondents. The preponderance of the probabilities shows that the appellant acquired the dispute land from Ekow Richardson (DW1) through one Jacob Johnny Bluko-Allotey. It is also not in dispute that the land in question originally belonged to the Martey Tsuru family who granted it to Ekow Richardson (DW1). Indeed, respondents admitted that at all material times they were aware of the presence of Jacob Bluko-Allotey on the land and that there was a structure and a fence wall developed on the land. Nonetheless, the respondents ignored the structures on the land and even the caretaker the appellant had put in possession of the land and purported to purchase the same land from the Martey Tsuru family. In this circumstance where the respondents can be accused of purchasing the land in absolute bad faith, they bereft themselves of any protection by the law. As can be observed, earlier on in this delivery, I referred to the fact that the trial judge decreed “title to the disputed land situate in the Martey Tsuru vicinity at East Airport, Accra….” in favor of respondents. The description of the land as stated in the judgment undoubtedly is nebulous and woefully insufficient. There is no indication as to the acreage or the size of the land. There is also no indication as to the size and length of any boundary land or feature. It is most improper and unacceptable for a court to decree title in land in favor of a party where all that the judgment indicates is the vicinity of a locality where the land concerned is located. By the principle of law stated in cases like Anane v. Donkor (1965) GLR 188, Kwabena v. Atuahene (1981). GLR 136 and Ayei Osae & Ors. V. Adjeifio (2001-2002) SCGLR 499, the challenges that might be associated with the execution of such a judgment render it most inappropriate for any court to decree title in any land in that manner. It cannot be over emphasized that one has to avoid a situation whereby execution of a judgment or order of the court relating to unidentifiable or unidentified land could be in vain. As a matter of fact, the legal dispensation under the relatively new Lands Act, 2020 (Act 1036) makes it even more imperative for boundaries of land to be clearly delineated and described in judgments of courts of competent jurisdiction, not to mention that such descriptions should be accompanied with approved and signed site plans by the Director of Surveys. I am by this drawing attention of judges in land matters to section 179 of Act 1036. The law now requires that a judgment of a court of competent jurisdiction affecting land must be very clear as to the delineations and boundaries of the land, the subject matter of the judgment. The law now even requires that a judgment affecting land must be accompanied by a duly signed and approved site plan which delineates in clear terms the boundaries of the land concerned. Where a judgment affecting land is done in accordance with section 179 of Act 1036, the land concerned can then be conveniently registered. Section 179 of Act 1036 provides: “Judges Certificate and decision of a court 179. (1) A judgment from a court of competent jurisdiction relating to land shall be accompanied with a site plan which delineates the boundaries. (2) A judgment from a court of competent jurisdiction declaring title to land shall state the specific interest in land granted by the court (3) The site plan under subsection (1) shall be approved and signed by the Director of the Survey and Mapping Division or a representative of the Director and further signed or thumb printed at the back by the parties and authenticated by the judge or registrar of the court. (4) A judge’s Certificate or a decision of a court which satisfies subsections (1) and (2) may, on the production to the Land Registrar, be registered (5) A judge’s Certificate or a decision of a court which does not satisfy the requirement for registration under this section shall be noted by the Land Registrar”. The law and the practice should now be that claimants to land must have to do some homework before they go to court to seek declaration of title to their land where there is a challenge to their title or interest in the land. Not only should they describe and prove boundaries, but they are also required to include a site plan capturing the delineations of their acclaimed land. Such site plans must be approved and signed by the Director of Survey and Mapping Division or the Director’s representative. This appeal has been considered in terms of the omnibus ground that the judgment of the trial court is against the weight of evidence, whereby this court was invited to comb through the entire record that was before the trial court and then decide whether having regard to such entire oral and documentary evidence, as well as the relevant law for the determination of the case, the inferences and conclusions of the trial court were supportable by the preponderance of the probabilities of the evidence. Having applied myself assiduously to the task required of me for the purposes of rehearing this appeal, I am of the considered view that the trial court was wrong in its findings on the issue of fraud as alleged against the appellant’s grantor and so the inferences and conclusions of the trial court cannot be sustained in the face of the record. In In Re Okine (deceased) v. Okine (2003-2004) SCGLR 582 and Effisah v. Ansah (2005-2006) SCGLR 943, the point was emphasized that a decision of a trial court can be interfered with by an appellate court where such a decision of the trial court is not supportable by the preponderance of the probabilities of the entire evidence on record. In other words, by the instant appeal, the lapses in the judgment of the trial court have clearly been made out. The appeal therefore succeeds. In conclusion, the judgment of the trial court entered in favor of respondents dated 18th November, 2021 is set aside. Judgment is hereby entered in favor of appellant. Accordingly, this court declares that: Title over all that piece or parcel of land situate lying and being at Mate Tsuru, Accra and bounded on the North by Lessor’s land measuring 70.0ft more or less on the East by lessor’s land measuring 120.0ft more or less on the South by a road measuring 70.0ft more or less on the West by lessor’s land measuring 120.0ft more or less and containing an approximate area of 0.19 acres is in appellant Furthermore, this court makes the following orders: a. Perpetual injunction is hereby issued restraining the respondents herein, their assigns, agents, workers, servants or any person(s) claiming through them or authorized by them from interfering in whatever manner the land described above. b. Recovery of possession of the said land and general damages of GHC30,000.00 in view of the structures demolished at the instance of respondents on the land as well as the trespass that has prevented appellant from completing the development on the land. The costs awarded by the trial court if paid must be refunded. This court awards appellant costs of GHC5, 000.00 SGD ........................... JUSTICE ANTHONY OPPONG JUSTICE OF THE COURT OF APPEAL SGD I AGREE ............................. JUSTICE JEROME NOBLE NKRUMAH (JUSTICE OF THE COURT OF APPEAL) SGD I ALSO AGREE ............................. JUSTICE AFIA SERWAH ASARE-BOTWE (JUSTICE OF THE COURT OF APPEAL) COUNSEL: JULIUS AMANKU FOR PLAINTIFF/RESPONDENT KWAME FOSU GYEABOUR ABSENT FOR DEFENDANT/APPELLANT 17