Quayson Vrs Ananfio And Others ( H1/80/06) [2008] GHACA 13 (19 March 2008);
IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL - A C C R A
CORAM - PIESARE, JA [PRESIDING]
DOTSE, JA
DUOSE, JA
H1/80/06
19TH MARCH, 2008
PARKER K. QUAYSON … PLAINTIFF/APPELLANT
V E R S U S
(1) KWEI DORNU ANANFIO
(2) BETTY ANNAN … DEFENDANTS/RESPONDENTS
(3) JOE ANNAN
(4) EMMANUEL APLERH DOKU
-------------------------------------------------------------------
J U D G M E N T
-------------------------------------------------------------------
I.D. DUOSE, JA:- The Plaintiff/Appellant hereafter referred to as the Plaintiff on the 13th of March 2001 issued out a Writ of Summons in the high Court Tema claiming against the Defendants the following reliefs:
(i) Declaration of title and ownership.
(ii) Recovery of possession and damages for trespass.
(iii) An order of perpetual injunction against the defendants, their agents,
servants, workmen and other relations and privies from entering the
land and interfering with the Plaintiff’s right to the same.
On 12th April 2001 the 1st, 2nd and 3rd Defendants entered appearance and eventually filed statement of defence on 28-05-02 denying the claim of the Plaintiff and setting up the defence of first settlement and possession from time immemorial. Subsequently the 4th Defendant joined the action first as Co-defendant and later on after setting up a Defence and counter claim against the Plaintiff and the 1st, 2nd and 3rd defendants became a Defendant counter claimant. In his Statement of Defence the Defendant pleaded fraud on the part of the Plaintiff and his grantor and set out the particulars of fraud as follows:
(a) Knowing very well that the land belonged to Adotey Nene Family and
even paid drink fee of ¢1,500,000.00 but secretly went to purchase it
from Sese Bortey.
(b) Concealment of the fact he did not acquire it from the rightful owner.
(c) Promise to come back and purchase the land from 4th Defendant’s
family and secretly went to buy the land from Sese Bortey without any
further reference to the 4th Defendant family.”
COUNTER CLAIM:
The 4th Defendant repeats paragraphs 1 to 14 of his Statement of Defence and counter claim against the Plaintiff and the 1st, 2nd and 3rd Defendants jointly and severally as follows:-
(a) “Declaration of title to all that parcel of land situate at Nungua Batsoona
and or Nungua Kotobabi as described by the Plaintiff and bounded on the
North West by proposed road measuring 810 feet and 60 feet
respectively more or less, on the South West by proposed lane and
measuring 930 feet more or less on the South West by proposed lane
and measuring 930 feet more or less on the South West by proposed
road and measuring 300 feet more or less, on the North East by Adotey
family land measuring 375 feet more or less.
(b) General damage for trespass.
(c) An order declaring the Plaintiff’s registration No. 2175/2000 and Land
Title Certificate No. T.D. 0208 of 1998 null and void on grounds of fraud.
(d) An order directing the Chief Lands Title Registrar to lapse plaintiff’s Land
Title Certificate and also an order directing Lands Commission to lapse
Plaintiff’s registered documents No. 2175/2000.
- Recovery of possession
- Perpetual injunction restraining the plaintiff, the 1st, 2nd 3rd defendants, their
assigns, privies, servants, grantees and all people claiming through them
from entering and dealing in any manner with the 4th Defendant’s family
land which is the subject matter of this suit.
All parties testified during the trial and called witnesses. On the 28th day of July 2005 the
learned trial High Court Judge delivered judgment in favour of the 4th Defendant in the
following terms:-
“In conclusion, I find on the totality of the evidence that the 4th Defendant
has a better title to the disputed land, and is entitled to all the reliefs
in his counterclaim. Plaintiff on the other hand, failed to prove his claim
and same ought to be dismissed.”
The court awarded 4th Defendant damages for trespass, ordered perpetual injunction against the Plaintiff, 1st, 2nd and 3rd Defendants their agents etc. from re-entering or otherwise dealing with the land. The Chief Land Title Registrar was ordered to lapse the Plaintiffs Land Title Certificate and the Lands Commission was equally ordered to lapse Plaintiff’s registered document No. 2175/2000. Costs were also awarded as the trial judge deemed fit.
NOTICE OF APPEAL AND GROUND OF APPEAL:
Feeling aggrieved by the above judgment the Plaintiff filed the following six grounds of appeal on the 26th of August 2005 in his notice of appeal.
2. (a) The judgment is against the weight of evidence.
(b) The learned trial judge erred in fact and in law by basing the judgment on
evidence that was not given by the 4th Defendant and thereby erroneously
entered judgment for the latter.
(c) The learned trial judge erred by holding that the Plaintiffs witness Sese Bortey
acted fraudulently in granting the land to the Plaintiff when there was not a
shred of evidence to support the alleged fraud.
(d) The learned trial judge showed clear bias and prejudice towards the Plaintiff
and his witness Sese Bortey by attributing to the witness evidence which was
given by DW1 (Joe Annan, 3rd Defendant) and in consequence erred in using
the same piece of evidence as corroboration of 4th Defendant’s evidence by the
Plaintiff.
(e) That as a result of the bias and prejudice aforesaid the learned trial judge
failed to adequately consider the case of Plaintiff.
(f) The trial judge erred in her application of the principle of cases like the
Western Hard Wood Enterprise Ltd. Vrs. West Africa Enterprise Ltd.
(1998 – 1999) S.C. GLR 105 to the instant case.
The additional ground of appeal is on record. Counsel however in his Statement of Case without leave argued two more grounds of appeal. I shall visit this issue latter.
RELIEFS SOUGHT:
That the judgment of the court below be set aside and judgment entered for the Plaintiff/Appellant.
FACTS IN EVIDENCE:
From a careful perusal of the evidence on record, the following are not controversial.
(1) All the three protagonists except the Plaintiff are citizens of Nungua.
(2) All the three protagonists claim title through their forefathers who first settled
on the land
(3) The land in dispute is located within a vast area known as Batsonaa or Kotobabi.
(4) The particular piece or parcel of land is variously described to contain 6.65 acres;
6.75 acres or 2.094 Hecters.
(5) The piece of land is earmarked or designated for the construction of a school.
According to the Plaintiff he acquired 27 acres of land from his grantor PW2 who
described himself in Exhibit A as the Gyasekye (Dzasetse) of Nungua Nungua Stool
and sold the land in that capacity on behalf of the Nungua Stool. PW2 however
stated in his evidence that he sold 12 or 14 plots of land to the Plaintiff. According
to PW2 the grantor or Plaintiff about 1/10th of the land he granted fell within land
belonging to the 4th Defendant’s family land. However it is the case of the Plaintiff
that he was told by PW2 that 1/3 of the land he was granted fell within the 4th
Defendant’s family. The 3rd Defendant who represented 1st and 2nd Defendants and held of power of attorney from them and therefore also testified on their behalf made a major confessing by concession title in the land to the 4th Defendant. Indeed it was 1st, 2nd and 3rd Defendants whose action prevented the Plaintiff from taking possession of the land thereby precipitating the suit whose judgment is appealed. It is the case of the 4th Defendant that the Plaintiff’s grantor knowing that the land belonged to the Adotey Nene family led the Plaintiff to him accompanied by PW1 whereby the Plaintiff was formally introduced to him as a prospective purchaser of the school plot. That as custom demanded the Plaintiff paid a drink fee of ¢1,500,000.00 known in Ga language as Nagbamo. He was compelled to join the action when he received information that the Plaintiff having acquired the land from PW2 was litigating with 4th Defendant over the land. Proceeding on the principle that an appeal is a re-hearing of the case the foregoing constitute the core of the facts upon which in my humble respectful view the suit was decided. May I remark that learned counsel on all sides had sought to introduce a lot of red herrings which I shall resolutely ignore. Simplicity as opposed to complexity should be the spice of the law. The question of whatever role the Nungua Stool played or did not play in the circumstances did not arise. The simple issue to determine was which of the parties had a better title inter se.
In his statement of case the learned counsel for the Plaintiff appellant set out two additional grounds of appeal namely:
(a) That the learned trial judge erred in holding that the Plaintiff’s title
Deeds registered by both the Lands Commission and the Land Title
Registry are null and void for reasons of fraud..
(b) Damages and costs awarded are unreasonable and excessive.
I now proceed to consider the grounds of appeal in the order in which they are presented.
Grounds 2(b) and (d) were taken together. For purposes of clarity and consistency I
restate grounds 2(b) and (d).
2(b) “The learned trial judge erred in fact and in law by basing the judgment
on evidence that was not given by the 4th Defendant and thereby
erroneously entered judgment for the latter.”
2(d) “The learned trial judge showed clear bias and prejudice towards the
Plaintiff and his witness Sese Bortey by attributing to the witness
evidence which was given by DW1 (Joe Annan, 3rd Defendant)
and in consequence erred in using the same piece of evidence as
corroboration of 4th Defendant’s evidence by the Plaintiff.
It is very obvious on the records indeed on page 277 of the record same is page 22 of the judgment that the learned trial judge made the error of attributing to PW2 the evidence of DW1. The findings and conclusion made in the judgment of the trial court do not arise, they are wrong and I shall set them aside ex debito. For me the main reason why the judgment against the Plaintiff must stand can be found on page 276 of the record same as page 21 of the judgment. I shall quote paragraph 3 of that page in which the learned trial judge delivered as follows:
“Both Plaintiff and 4th Defendant are relying on documentary evidence
To support their claim of title…………….Indeed there were a number
of inconsistencies in the evidence adduced by Plaintiff and his witnesses.
Amongst others, their evidence was not conclusive as to the extent of the
portion of the disputed land they claim belongs to the 4th Defendant:
Plaintiff said it was “about 1/3 of the total area” whereas Sese Bortey
said it was 1/10. Neither were they consistent regarding the number of plots given
to Plaintiff; Plaintiff said he bought 27 plots, whereas Sese Bortey said he sold
12 to 14 plots to Plaintiff. In the circumstances the application of the
decision in the case of OBENG VRS. BEMPOMAA [1992 – 93] 3 GBLR
1027, at 1028 was apt. In deed inconsistencies though individually colourless, may as it has proved in this instant case cumulatively discredit the claim of the proponent of the evidence. In this instance the conflicts in the evidence of the Plaintiff and his witnesses is not only fundamentally significant but also sufficiently weakens the merit of his case. As was rightly held by OLLENU J as he then was in BRUCE V. QUAYNOR [1959] GLR 292 of 294 “By native custom, grant of
land implies an undertaking by the grantor to ensure good title of the
grantee. It is therefore the responsibility of the grantor to ensure, where
the title of the grantee to the land is being challenged, or the grantee’s
possession is disturbed, to litigate his (the grantor’s) title to land in
other words, to prove that the right title or interest which he purported to
grant was valid “From the record Sese Bortey the grantor failed to litigate his title
to the land. He surreptitiously came in as a mere witness and at best only succeeded casting great doubt on the title that he purportedly granted.
Again the Plaintiff failed to attain the standard of proof required to be discharged by a person seeking to prove title to land. In KWABENA V. ATUAHENE [1981] GLR 136 it was rightly held that to prove title to land a proponent must meet the following conditions:
(1) The Plaintiff had to establish positively the identity of the land to which
he claimed title with the land the subject matter of the suit.
(2) The Plaintiff also had to establish all his boundaries.
In addition is also the evidence of the 4th Defendant regarding the introduction of Plaintiff to 4th Defendant as a prospective purchaser by PW2 the vendor, the payment to and acceptance of ¢1,500,000.00 by 4th Defendant constitute part of the inconsistent conduct of the Plaintiff and his witnesses which detract from the merit of their case. If indeed the payment of ¢1,500,000.00 was compensation paid to 4th Defendant for the portion of his land sold to Plaintiff, was the compensation for 1/10th of 12 plots, 14 plots or 27 plots. Again was it compensation for 1/3rd of 12 plots, 14 plots or 27 plots. What will a reasonable person or tribunal deduce from all the foregoing and the frantic attempts to negotiate a purchase price. My considered opinion is that this appeal must fail on this ground and I so hold.
Next ground is ground 2(c) which reads:
“The learned trial judge erred by holding that the Plaintiffs witness
Sese Bortey acted fraudulently in granting the land to the Plaintiff when
there was not a shred of evidence to support the alleged fraud.
What is fraud? The Cambridge International Dictionary of English defines
fraud as follows “the crime of obtaining money be deceiving people” –
The Oxford Advanced Learner’s Dictionary 6th Edition defines fraud as
follows “the crime of deceiving some one in order to get money or goods
illegally.”
Fraud is therefore from ordinary use of English a criminal conduct. S. 132 of our Criminal Code Act 29/60 defines fraud as follows “A person is guilty of defrauding by false pretences if, by means of any false pretence or by personation he obtains the consent of another person to part with or transfer the ownership of anything.” In the Supreme Court case of BROWN V. QUARSHIEGAH [2003 – 2004] SCGLR 930 at 946 Dr. Seth Twum JSC said speaking about fraudulent conduct stated simply that “In short, fraud is dishonesty.” Can one find any instances in which the grantor of the Plaintiff acted dishonestly? The answer to this question is yes. There is no factual reason to set aside the findings of the trial judge. Sese Bortey described himself as the Dzasetse of Nungua Stool yet it is clear from the evidence that he knew he was not such. When he Sese Bortey caused the Nungua Stool to execute Exhibit B which consists of the Land Title Certificate and the conveyance of Plaintiff he knew he had granted only 12 or 14 plots to Plaintiff yet he represented to the Nungua Stool that Plaintiff had been granted 27 plots.
The foregoing added to those instances of dishonest dealing attributed to both Plaintiff and his grantor on pages 22 and 23 of the judgment or pages 277 and 278 of the records
are sufficient reason to confirm the judgment appealed. The appeal therefore fails on this ground also.
Grounds 2(a) and 2(e) were not argued and would be regarded as having been
abandoned. They are particularly stated as follows:
2(a) The judgment is against the weight of evidence.
2(e) That as a result of the bias and prejudice aforesaid the learned judge failed
to adequately consider the case of the Plaintiff.
In the Plaintiff/Appellant’s statement of case learned counsel sought the indulgence of this court to add two more grounds of appeal. These grounds were
(a) That the learned trial judge erred in holding that the Plaintiff’s title
deeds registered by both the Lands Commission and the Land Title
Registry are null and void for reasons of fraud.
(b) Damages and costs awarded are unreasonable and excessive.
These two grounds were not specifically raised in the body of the statement of case. Without granting the indulgence sought supplementary ground (a) can be subsumed under the general ground of fraud. Fraud vitiates everything. The numerous instances of fraudulent or dishonest dealing cited in this case smells, the foul smell permeates and is diffused into the whole fabric. In deed one instance of fraudulent conduct clours the whole transaction.
There is therefore no known legal process by which the transaction can be salvaged.
With regards to the damages and cost awarded, I have considered the totality of the loss that the Plaintiff has suffered. He paid about ¢46,000,000.00 which by virtue of the judgment is more probably then not lost. From the evidence and from experience it is near impossible for the Plaintiff to recover the price he paid to Sese Bortey his grantor and other expences made during registration of the nullified documents. The proper person to pay cost is Sese Bortey, however having cleverly avoided responsibility by failing to join the action as a party costs and damages cannot be awarded against him.
In view of the foregoing the damages awarded is reviewed to read ¢25,000,000.00. On the other hand 1st, 2nd and 3rd Defendants cannot demand costs. The circumstance leading to their involvement can not justify the award of costs to them. They are therefore adjudged not be entitled to any costs.
Finally whether the trial judge erred in her application of the principle of cases like the Western Hard Woods Enterprise Ltd. Vrs. West African Enterprise Ltd. [1998-1999] SCGLR 105 to the instant case.
The principle in the above cited case is meant to terminate the erroneous view that assurance of title to land is essentially a race to register title to land no matter how acquired. The registration of title does not provide a state guaranteed title. Therefore where one registers a document whose source is dubious he gains nothing. It must be driven home now that mere registration of a title deed from the wrong grantor gains no advantage and cannot base his title on mere registration either with the Lands Commission or the Lands Title Registry. Nemo dat quod no habet will always be applied to defeat grants made by titleless grantors. Costs of the appeal.
[SGD.] I.D. DUOSE
JUSTICE OF APPEAL
I agree. [SGD.] E. K. PIESARE
JUSTICE OF APPEAL
I also agree. [SGD.] J. DOTSE
JUSTICE OF APPEAL
COUNSEL: MR. PROSPER NYAHE FOR THE 4TH DEFENDANTS/
RESPONDENT.
MR. S.K. OSEI NYAME FOR THE PLAINTIFF/APPELLANT.
~eb~
