Boateng Vrs Manu And Another (H1/132/2005) [2006] GHACA 14 (24 February 2006);
IN THE SUPERIOR COURT OF JUDICATURE,
THE COURT OF APPEAL,
ACCRA-GHANA.
Coram:- P.K. OWUSU-ANSAH J.A. [PRESIDING]
ABBAN , J.A.
.KUSI APPIAH, J.A.
CIVIL APPEAL
H1/132/2005.
24TH February, 2006
PASTOR YAW BOATENG,
H/NO. NT. 331,
KROFOFROM,
KUMASI APPELLANT
VERSUS
- KWADWO MANU
H/NO. NT. 331,
KROFOFROM, KUMASI.
RESPONDENTS
- NANA OWUSU-KWAME,
ABABIO, ODIKRO OF
BOSORE.
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J U D G M E N T
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OWUSU-ANSAH, J.A.:- This is a n appeal from the judgment of His Honour F. Bright Mensah, Circuit Judge, sitting at Kumasi Circuit Court on the 29th day of July,2004.
What my appear to be a complex issue is indeed rather simple.
The basic issue for determination in this appeal, in my view is whether or not the land in dispute is the 1st Defendants family land. If it is or has at all material times
been family property, then no one but the family could validly grant it to any body else.
On the 1st February 1996 the Plaintiff caused his Solicitor Dei Kwarteng to issue
out a Writ of Summons against Kwaadwo Manu claiming the following reliefs:-
“[i] Declaration of title to all the 50 building plots bounded by SISIRASI Land,
Atakyem land, and Kwaku Dua’s Oil palm plantation .
[ii] Special damages
[iii] General damages for trespass;
[iv] An order of Perpetual Injunction restraining the defendant, his servants and/or
agents from in any way whatsoever interfering with the property in dispute.
[v] And for such further order or relief as the honourable Court may find appropriate
to make.”
By an order of the said Circuit Court on the 10th September,1999, Nana Owusu Kwame Ababio the Chief of Bosore at the time was joined as the 2nd defendant in the suit,
Presumably for tactical reasons, since the case against him was not pursued till he died.
Subsequent to joining Nana Ababio as the 2nd Defendant the Plaintiff obtained
Leave of the court and amended his Writ as against both Defendants jointly and severally claiming the following reliefs:
“[I] a declaration of title to all the 50 building plots bounded by the Sisirasi land, Atakyem land and Kwaku Duah’s Oil palm plantation;
[ii] An order setting aside the arbitration between the Plaintiff and 1st Defendant on
grounds of fraud.
[iii] Special and general damages for trespass; and
[v] Perpetual injunction
The 1st Defendant also counter-claimed against the Plaintiff as follows:-
[a] a declaration that all that piece and parcel of land situate and lying at Bosore on Ejusu stool land and bounded by Asukese stream, Bosore township, Opanin Osei Tutu and Atakyenm land, is the defendant’s family property.
[b] Damages for trespass;
[c] An order of Injunction restraining the Plaintiff his assigns, servants and workmen
from, in any manner, interfering with the defendant’s possession and occupation of the aforesaid land.
During the pendency of the suit, the 2nd Defendant sadly passed away and was substituted by Nana Appiah Kubi, the Krontihene of Bosore.
Sometime in 1988,it was decided at the instance of the chief that the land around the town be demarcated into building plots for allocation to interested parties and a survey or was engaged for the purpose.
The Plaintiff after apparently paying some money went into possession of the Land and erected a church building on the land. The 1st defendant appears to have taken strong exception to this and pulled down the structure.
The matter was reported to the Police Ejusu. Notwithstanding the amicable settlement of the issue the plaintiff took the matter to Ejisu Traditional Court by way of an arbitration and lost. He had to pay the Defendant’s costs . Owing to or in spite of that, the Plaintiff instituted the present action. It must be noted that neither Nana Ababio nor nana Appiah Kubi who was substituted for him entered Appearance or filed a defence to the action yet no steps were taken by the plaintiff to obtain judgment against either of them.
At the summons for Directions stage the following issues were set down for trial,
that is to say:-
[a] Whether or not the Plaintiff acquired the land in dispute from the 2nd Defendant
and his elders as alleged .
[b] Whether or not Kwaku Duah claimed part of the land in dispute to the knowledge of the 1st Defendant.
[c] whether or not the 1st Defendant trespassed unto the land so acquired by the Plaintiff destroying property thereon.
[d] Whether or not the 2nd defendant made a statement to the Antoa Police on the
3//4/95 on the grant of the land in dispute to the plaintiff.
[e] Whether or not the plaintiff is estopped by the arbitration initiated by the 1st
Defendant before the Ejisu Traditional Council .
[f] Whether or not the decision given at the said arbitration was tainted by fraud
and perjury on the part of the 2nd Defendant.
[g] Whether or not the land in dispute is the family property of the 1st Defendant .
[h] Any other issues arising on the pleadings.
It is important to point out that since neither Nana Ababio nor Nana Appiah
Kubi offered any evidence, the battle is thus joined mainly between the Plaintiff and the
1st Defendant, each of whom, by virtue of the provisions of S.11 of the Evidence Decree
NRCD 323 has a burden to discharge in view of the counterclaim.
The learned judge heard the case and gave judgment in favour of the 1st
Defendant on his counter-claim dismissing the Plaintiffs’ claim with costs of ¢2 million.
It is against this judgment that the plaintiff has appealed to this court on the
additional grounds that :
[I] The trial Circuit Judge erred in holding that the allocation note issued to the
Plaintiff was void for non-registration.
[ii] The learned Circuit Court Judge erred in holding that Exhibit ‘D’ the Investigation Statement of the 2nd Defendant made to the Police was improperly admitted in evidence because of the absence of independent witness.
[iii] The learned Circuit Judge erred in holding that the arbitration before the Ejusu
Traditional Council was valid and thereby estopped the Plaintiff from initiating the action.
In his written submission in support of the first of the additional grounds of
appeal learned counsel for the appellant submits that there is ample evidence on record to
support the appellant’s claim that he acquired the land in dispute from the 2nd Defendant
and his elders, and that the trial judge should have so found. Heavy reliance is placed
on Exhibit ‘B’.
Exhibit B is headed
“ALLOCATION OF 50 fifty plots at BOSORE/KENYASE-ASHANTI [KWABRE”
It states: “Let it be known by Public that BOSORE Stool Land headed by Nana Owusu Kwame Ababio II have allocated fifty [50] plots at BOSORE Kwabre to Mr. Yaw Boateng P. O. Box 2607 Kumasi.”
“Since all the necessary rites and other commitments have been met by the allottee, the Bosora Stool Land have formally allocated these plots to Mr. Yaw Boateng
of P. O. Box 2607 Kumasi H/No. BE 19 Bosore/Kwabre and becomes the rightful owner accordingly.
Dated at Kumasi this 11th May 1990 signed”
The Plaintiff claims to have made some payments, no receipt therefor appears to have been issued. The question is whether this document is an instrument within the meaning of the law. Indeed Section 3 of The Land Registry Act 1962 [Act 122] provides that “any instrument may be registered under the Act” In my view the word “may” must mean “shall” Otherwise the utter futility of the provision becomes obvious, since no one may necessarily choose to register an instrument. The word “may’ imports a discretion. The question then arises what happens, what is the effect of non-registrations.
Again the word” instrument is defined in the interpretation Section of the Act [Section 36] as:-
“any writing affecting land situate in Ghana including a judges certificate and a memorandum of deposit of title deeds”.
By the “ejusdem genersis” rule this document or instrument is not only “writing affecting land but purports also to transfer an interest in land. I hold therefore that it must be registered, in the absence of which it is invalid for non-registration and does not help the plaintiff. See s.24 [1] of Act 122]
It must be observed that this is not an ordinary “Allocation Note” [by whatever name called] That would not normally cover more or less in detail what I might call the
“3 ps.” That is the “Parties, Property, and the price”
By virtue of its non-registration, the document is not thereby rendered null and void, but only invalid .
Assuming without admitting that the document in question is not invalid there is overwhelming evidence on record, which is the subject of a finding of fact, that the land in dispute is the family property of the 1st defendant. The learned judge made a correct evaluation of the evidence and proper assessment of the facts.
The evidence of DW1 is quite interesting and revealing. He was vice chairman of the Town Development Committee for 4 years during the relevant period. He states
“What I know about this case is that Nana Bosorehene, Nana Owusu Kwame Ababio ounce informed our committee that the plaintiff approached him to say that he [the plaintiff] wanted a plot of land to do his church activities thereon. And that he had agreed and had given him one plot of land”, Let it be noted, not 50 plots, as claimed by the plaintiff.
The witness went on to narrate the circumstances leading to the execution of the so called Allocation Note’ describing the plaintiff as” self styled secretary of the committee in charge of documents.”
The witness, a common boundary owner stressed., “It is never correct that the Plaintiff acquired 50 plots of land from Bosorehene in conjunction with the Town Development committee. I only know of one plot”. The learned trial judges finding of
the relevant facts is thus supported by evidence.
The witness confirmed that when Opanin Owusu died, the 1st defendant Kwadwo Manu succeeded him and “the family gave the land to Manu” Quite clearly the principle of “Nemo dat qui non habet” has to be applied to this case. The court found as a fact that this was a family property. No one safe the family can dispose of it.
The Plaintiff himself giving evidence stated categorically “The Land was allocated to me by the Town Development Committee.”
On the issue of registration pursuant to section 24[1] of the Land Registration Court 1962 Act 122] learned Counsel for the Appellant refers to the Court of Appeal decision in MACLEAN II and another versus AKWEI II [1991] 1 GLR 54 holding one at page 55 and quotes in extenso.
“1. “The non-registration of the document [exhibit 2] executed in favour of the 2nd
defendant by the predecessor of the plaintiff on the Sempe Stool did not make
that document void. By the provisions of section 24[1] of the Land Registry Act 1962 [Act 122] the non-registration only rendered the document invalid.”
If the document is invalid how can an invalid document be admitted in evidence.
The Court continues:
“However, since the agreement contained in the document was in writing it was capable of being enforced against the Sempe Stool as the vendor. Besides there was a relationship created in equity between the plaintiff and the 2nd defendant under which the plaintiff as the vendor whose duty it was to see to the registration of the instrument, would hold the land in trust for the 2nd defendant until the registration or the validation of the instrument.
“Accordingly to allow the Plaintiff to rely on the non-registration of exhibit 2 to avoid the grant and deprive the 2nd defendant of her purchase would amount to fraud.”
Counsel then vigorously argued: “It is submitted that on the authority of MACLEAN cited supra, where a document that is registrable is not registered, it is nonetheless enforceable in equity against the party responsible for its registration.
In the instant case the 2nd defendant as vendor had, the duty to ensure that the allocation note, if indeed it is a registrable instrument, is registered, not the plaintiff ” he concludes.
It is my considered opinion that this case of MACLEAN is in principle inapplicable to the instant case for the 1st defendant is far from being the vendor and therefore under a duty to see to the registration of the instrument. On the contrary, the 1st defendant in the instant case, by his counter-claim seeks declaration of legal title to the property in dispute; he is neither the alleged vendor nor grantor and no such obligation can be imposed on him to register for another title to property he claims to belong to his family. That is not only a monstrous suggestion but fantastic and preposterous.
Again the dictum in Asare vs Brobbey 1971 GLR 331 CA. Cited by counsel states: “……….. while a party with an unregistered document may be unable to assert
a legal title in court, nevertheless the document will take effect in equity and will deafeat all claims except the holder of the legal title”. In this case it is this holder of the legal title in respect of family property who is claiming and whose claim has been established in the court below, by the relevant findings of fact.
It is also obvious, as confirmed by DW1 that the parties were illiterates.
Since on the evidence the plaintiff prepared the document Exhibit ‘B’ there was the need for interpretation clause under the illiterates Protection laws, especially having regard to all the surrounding circumstances including the emphatic denials of DW1 and others.
Furthermore, if the land was stool land, then clearly the stool elders should have been involved in the transaction rather than people like PW2 the assembly man, and Opanin Kwasi Tawiah described as an Elder/vice chairman of Bosore Committee who thumbprinted Exhibit ‘B’. Indeed there has been no series challenge to the evidence that the land in dispute has at all material times been 1st Defendant family property.
There appears also to be a conflict in the plaintiffs pleadings where he claims that he acquired the land after paying “Aseda” in accordance with custom ,as contrasted with his evidence in the box that it was rather an outright sale. The legal implications of the difference are quite clear ,that is, between a gift [aseda implies a gift] and a purchase.
See Appiah vs Takyi; 1982 GLR. This is indeed trite learning
In the ultimate analysis Ground one [1] of the additional grounds must fail and it is dismissed accordingly.
I now proceed to deal with Ground 2 which states:
“The learned Circuit Judge erred in holding that Exhibit “D’, the investigation statement of 2nd defendant, made to the Police was improperly admitted in evidence because of the absence of an independent witness:.
Section 76 of the Evidence Decree 1975 [NRCD 323 provides:
“Unless the Court in its discretion determines otherwise, extrinsic evidence
of a statement made by a witness that is inconsistent with any part of his testimony at the trial shall be excluded unless:
[a] The witness was so examined white testifying as to give him an opportunity
to explain or deny the statement; or
[b] the witness has not been excused from giving further testimony.
I share the view of the learned judge that the main purpose of ten dering the statement given to the Police earlier was to contradict Nana Ababio and prove that his evidence was not worthy of credit and utterly unreliable. It is important to remember that the witness in question was the Plaintiff’s own witness. He was not made a hostile witness.
As a general rule, witness whose evidence on oath is contradictory of a previous statement made by him, whether sworn or unsworn, is not worthy of credit . And his evidence cannot therefore be regarded as being of any importance in the light of the previous contradictory statement unless he is able to give a reasonable explanation for the contradictions. The case often cited in support of this proposition is State vs; Otchere 1963 2 GLR 463 and Gyabaah vs: Republic 1984-86 2 GLR 461. But the question arises, how can such a person offer a reasonable explanation [or indeed any explanation at all] unless he is availed of the opportunity to do so which is impossible if he is dead, or difficult if he is seriously ill. My own view is that the admission or rejection of such a statement would not advance this case any further. His evidence would only depict a masterpiece of absolute inclarity and expose it as being utter unreliability
The learned trial judge must have found himself on the horns of a dilemma . I think that he was right in deciding to exercise his discretion in the way he did under S.76 of NRCD 323 – the least prejudicial way out of the dilemma. In any event the circumstances were such that the first leg of section 76 of NRCD 323 could not possibly be satisfied, that is that the document shall be excluded unless “ the witness was so examined while testifying as to give him an opportunity to explain or deny the statement”
In any case the rule [ Section 120 [B] of NRCD 323] requires the presence of an independent witness to certain confession statement and must apply to criminal as opposed to civil proceedings and is thus immaterial in this case. It is a matter of the weight to be attached to the statement and not necessarily admissibility. The test of admissibility is relevance. For what it is worth the statement in my view ought to have been admitted to
contradict the Plaintiffs own witness which could certainly not have been of assistance to the plaintiff.
In this case the statement if admitted was obviously intended to show that Nana Ababio was not worthy of credit in relation to the alleged grant. Be that as it may, quite clearly no substantial miscarriage has thereby been caused in this case. The statement has no legal effect on the case other than to discredit the evidence of that particular witness
Called by the Plaintiff himself .
Besides, its force, significance and weight had been infinitely diminished by the non-compliance with S. 123 [3] which provides inter alia, that where a statement is in writing the independent witness must certify in writing that the statement was made voluntarily in his presence and that the contents were fully understood by the accused. As already indicated it is arguable whether this provision has any relevance to civil proceedings
In my view the CRUX of this appeal as already indicated is whether the land in question is family land of the 1st Defendant . If it is, as appears to be the case then no matter which way one looks at it, there can be no valid grant to the plaintiff, notwithstanding the contents of the statement to the Police or the discredited unexplained oral evidence of the witness who did not testify as required by law. Certainly no members of the Town Development Committee could grant somebody else’s family land to another.
By his amended statement of claim, the Plaintiff sought against the defendants jointly and severally a number of reliefs including”
“ A declaration of title and beneficial ownership of all that 50 building plots at Bosore/Ashanti bounded by Sisirasi land, Atakyem land and Kwaku Dua’s Oil Palm
Plantation.”
The Plaintiff appears to have rested this claim mainly on Exhibits B the Allocation
Note “ and the rejected Police investigation statements since the allocation note is in writing it would appear to have complied with the provisions of the conveyancing Decree 1973 [NRCD 175] and might have been relevant to a claim against the 2nd Defendant. However it is significant to note that the 2nd defendant neither entered Appearance to the Plaintiff amended Writ, nor filed a defence. And yet no action or steps would seem to have been taken to enforce any rights against him or his successor. The claim against him must be deemed to have been abandoned.
Moreover, I am unable to find any argument or submission in relation to the effect of the rejection of the statement of Nana Ababio on the issue of title. It is, in my view, amply supported by the evidence, and the judge has so found, that the land in question belonged to the 1st Defendant’s family. And Nana Ababio has no power or capacity to deal with it regardless of the missed up statements he is alleged to have made or not made: At all events, Nana Ababio reportedly died during the pendency of the suit and after PW1 had given evidence. He was apparently substituted.
This ground of appeal also fails
The third ground of the additional grounds of appeal states:
“The learned trial Circuit Judge erred in holding that the arbitration before the EJISU TRADITIONAL COUNCIL was valid and thereby estopped the Plaintiff from initiating the action in relation to issues[e] and [f] of the Summons for Directions. These are:
“[e} Whether or not the Plaintiff is estopped by the Arbitration by the 1st Defendant
before the Ejisu Traditional Council” and
“[f] Whether or not the decision given at the said arbitration was flawed by fraud and perjury on the part of the 2nd Defendant.” It must be emphasised that the mere fact the Plaintiff’s own witness made a statement to the Police and later gave inconsistent evidence at the arbitration cannot by any stretch of the … be tantamount to perjury or fraud within the accepted meaning of both words, the legal definitions of which are
trite learning.
Learned counsel for the appellant submitted, “inter alia, that
“It is important to state that from Exhibit 2 [the arbitral proceedings] the arbitrators based their award wholly on the perjured testimony of Nana Ababio [the 2nd defendant and argues vigorously that there was no valid arbitration . In my judgment that submissions is as irrelevant as it is far fetched with respect.
It is therefore necessary to examine briefly the legal requirements of a valid arbitration as enunciated in the leading case of BUDU VS. CAESAR II 1959 GLR 410.
[a] Voluntary submission of the dispute by the parties to arbitrators for the purpose of having the dispute decided informally but on its merits;
[b] Prior agreement by both parties to accept the award of the arbitrators.
[c] The award must not be arbitrary but must be arrived at after the hearing of both sides in a judicial manner.
[d] The practice and procedure for the time being followed in the native court or Tribunal of the area must be followed as nearly as possible;
[e] Publication of the award.
On a careful examination and analysis of the evidence on record it is crystal clear that there is more than ample evidence in support of all the necessary ingredients and requirements of a valid arbitration.
Counsel submits, however, that there was no voluntary submission on the part of the plaintiff and in any event the arbitration was tainted with fraud the particulars of which were given as follows:
“Falsely swearing and /or stating before the arbitral panel that he had not granted
the land in dispute to the Plaintiff when he know same to be false”. By this definition hundreds possibly thousands of litigants would be guilty of perjury every day in the Courts of Ghana. There is no indication whatever in Exh. 2 the record of proceedings of
the Arbitration at Ejisu that any of the parties took the oath without which the issue of perjury does not arise. Nor was the alleged Police witness statement made on oath .
We must not lose sight of the fact that Nana Ababio was the Plaintiff’s own witness.
As for the alleged fraud the least said about it the better.
In my opinion this allegation and the evidence in support thereof would not prove fraud beyond reasonable doubt within the legally accepted meaning or definition of the word” although it could amount to perjury.
In any event, it is significant to note that the said 2nd Defendant [Nana Kwame Owusu] was called by the Plaintiff himself on whose behalf he gave the evidence being questioned. There is no indication that he was treated as a hostile witness.
Nor was there any attempt at the hearing to challenge his evidence or contradict him by adducing other evidence.
One can do no better than to quote from the horses own mouth:- Evidence of Plaintiff himself.
“There was an arbitration “ he said, and “I stated my case. 1st defendant who was the complainant then also gave evidence. Our witnesses also gave evidence the Bosorehene [Nana Kwame Owusu 2nd Defendant in this case] gave evidence for me. The claim before the Ejisu Traditional Counsel related to the land in dispute”.
These facts speak for themselves and need no embellishment.
The Plaintiff also admits that when he appeared before the panel he paid “impiiso” the traditional way of indicating consent and preparedness to contest the case.
He voluntarily accompanied the parties to the locus in quo. He never complained until the decision or award was against him.
Exhibit 2 [the record of proceedings at the Ejisu Traditional Council also confirms the position ;
“Pastor Boateng [the Plaintiff] consented to the hearing and determination of the matter on arbitration basis by paying “ntaadwamu of sixteen thousand Cedis [¢16,000]. Both parties and their witnesses were heard by the panel chained by Nana Asiedu Bonsie Kontihene of this Traditional Area.” At no stage did the plaintiff show the slightest
sign of reluctant participation in the arbitration proceedings until he lost the case.
The evidence of PW1 Plaintiff’s witness buttresses and support the 1st Defendant Nana Owusu Kwame PW1 [Bosorehene, said among other things that he, an illiterate, once signed or thumbprinted a site plan for the Defendant [now Plaintiff but he was informed that the document prepared by the plaintiff for himself was for single plot not for 50 plots. There was decidedly a voluntary submission of the parties to the arbitration
And the belated attempt to resile from it appears to be an after thought.
The panel, after a visit to the locus, unanimously gave judgment in favour of the complainant [i.e. the 1st Defendant] They unanimously found that the plaintiff Pastor Boateng “ tried by deceitful means to allocate the plots to himself and resell to others to the disadvantage of the complainant and his family members.”
Cost of ¢85,000.00 eighty five thousand cedis was awarded to the Plaintiff [i.e. the 1st defendant in this case which the Plaintiff promptly paid.
I am satisfied that on the evidence there was clearly a valid customary arbitration, the effect of which is that the plaintiff cannot resile from the verdict; he is estopped from relitigating the same issue in relation to the same piece of land; the published award is binding on the parties, as to all intents and purposes, there was a valid customary arbitration.
I am not impressed by this ground of appeal notwithstanding learning
Counsel’s able submission. It is in fact beyond the legal competence of this court to set aside the judgment on this ground. It is accordingly dismissed.
We will now consider the final ground of appeal which is ground one of the Original Grounds of appeal, namely: that
“The judgment is against the weight of evidence adduced at the trial”
Learned Counsel for the appellant concedes that this will require a pathological review of the evidence in totality.
Counsel then refers in extenso to the evidence of the plaintiff’s witnesses and submits that it is
“ clear beyond any shadow of doubts that the evidence of PW2, PW3 and Exhibit ‘B’ [the allocation note] as well as the statement of Nana Owusu Kwame Ababio, Bosorehene and 2nd Defendant in this suit given to the Police and which statement forms part of Exhibit ‘D’………… establish clearly that the 2nd Defendant indeed allocated the 50 plots to the plaintiff.”
This aspect of the matter has been dealt with extensively elsewhere in this judgment in greater detail. Suffice it to add that the learned judge subjected the evidence to scrutiny and critical analysis and made important and relevant findings of fact. He observed that “Given the available evidence, I have, my serious doubt as to whether indeed the Plaintiff acquired these plots in contention from Nana Ababio and his elders. And even if he did was it a valid grant ?”
“In the first place”, said the learned judge, “in answer to a question under cross-
examination as to which family owned the land in dispute before the allocation to him, the Plaintiff said the owners were Kwaku Adu, Asuoto Kufoo, Nana Krontihene doubling as Atakyemhene, Kwaku Dua, and the Plaintiffs grand mother Akua Abrone”
Assuming that is so, how could the chief and his elders have made a valid grant to the Plaintiff in view of the well known rule of “Nemo dat qui non habet”. How can the Plaintiff prove title with such evidence which is an admission that his root of title is faulty.
Moreover, Exhibit 2 [the so called allocation paper papered [ by the Plaintiff
himself] appears to have been signed by PW2 as Assembly man and thumbprinted by Opanin Kwami Tawiah as an Elder/vice chairman of Bosore Committee.
The judge said: “I also hold that given the evidence on record the plaintiff never acquired the land in dispute i.e. 50 plots from Nana Ababio and his elders”, a clear, supportable finding of fact. The answers by PW2 under cross-examination are quite illuminating .
“You agree with me that the subject-matter of this suit belongs to the family of the 1st Defendant .”
“A. His uncle gave it to me so I believe that it was his family land.
- When were you permitted to farm on the land.?
- It was in 1978.
- You have since sold this one plot to Christopher.?
- I have not given it to any Christoper.
- You have given it out but the person is not Chirstopher ?
- Yes.
- What is the name of this person. ?
- I cannot recall at his name .
It is an obvious prevarication and evasion . Again, the plain implication is
that the Plaintiff was given and he accepted only one plot. This action is clearly an
after thought, misconceived and vexatious.
The merciless cross-examination continues unabated.
- The receipt exhibit ‘B’ was given you at the time of the payment.
- No it took some time
- How long after ?
- I finished paying the money in 1989 and the receipt was given to me in 1990
This is as ridiculous as it is fantastic and preposterous
Furthermore it was put to the Police witness for the Plaintiff.
- In your view as the Officer who investigated these things [i.e. the complaint by
The Plaintiff of criminal damage] would it have been proper to charge Kwadwo Manu [i.e. the 1st Defendant.
- To be fair it would not have been proper for him to be charge.
This speaks for itself.
- When did Bosorehene make th layout
- It was in 1990 although the Plaintiff himself said it
- When did the Plaintiff give the 100,000.00 for the purpose of making the layout.
- May 1990
- When did the Plaintiff express his interest to acquire the 50 plots.
- It was in 1990
- So before this meeting the Plaintiff had not expressed that interest.
- No he had not
- When according to you was the grant actually made to the Plaintiff.
- May 1990
From this the irresistible inference is that whereas the disputed piece of had been family propoerty over a very long period of time in or around 1978, according to the
Plaintiffs own witness, the plaintiff apparently expressed an interest in or about May
1990 when the property was clearly owned by and in the possession of the Defendant’s family.
The cross-examination of the Plaintiff puts the matter beyond any shadow of doubt Referring to the arbitration proceedings.
- You agree with me that the decision stated that you should be given one plot
- They said that I have been given one plot.
Thew question then arises why was the Plaintiff given only one plot which he accepted instead of the 50 he is claiming.
It was further submitted that the land in dispute is the same land which was the subject matter of litigation between Kwaku Duah [plaintiff] and Nana Owusu Kwame Ababio and Pastor Yeboah [Defendants] and therefore the 1st Defendant is estopped per rem judicatem”.
The Plaintiff tendered in evidence a judgment of the Kumasi Circuit Court presided over by his Honor K.K. Acquaye [as he then was] together with other processes of the Court. It was vehemently argued that whilst the case was going on the 1st Defendant stood by and only stared on. It was therefore submitted that the 1st Defendant
Was estopped by the said judgment.
It is a trite principle of law that for such an estoppel to operate against a party the parties before the court in the previous proceedings must be the same as the parties in the present case. Besides the issues and the subject matter must also be the same, as must the identity of the land in dispute.
The learned judge in this case quite rightly adverted his mind to the relevant
Salient point and came to the conclusion that in this case, they were all different; for example the land claimed by Kwaku Duah in that suit was described as being and lying at a place commonly known as and called Afikyifuom on Bosore Stool land and sharing boundaries on all sides by Ampofo [deceased] Kwaku Nipa [deceased] Opanin Afranie [deceased] and Atakyemhene . In the instant case the plaintiff cites Kwaku Duah as boundary owner See also BEDU V AGBI 1972 2 GLR zig in the C.A. in which the Court refused to apply the rule, as it took the view that the issue was not open to the Plaintiff in that case because they were not parties to the earlier suit.
I hold that neither the 1st defendant nor his family can be held to be estopped by the judgment in favour of Kwaku Duah who is not a party to this suit.
There is hardly any judgment in the world which can never be criticised in some way in the hands of Lawyers. However it is the weight or solidity of the judgment as well as the inherent sense of justice involved in the judgment that will ultimately make it carry the day. In the ultimate analysis the Courts went by and large aim at dong substantial justice and not bagged down by were follow technicalities.
Learned Counsel for the Appellant has made some very powerful and erudite submissions which have been found to be worthy of serious consideration and concludes that
“the appellant grounded this appeal not only the omnibus ground that the judgment is against the weight of the evidence adduced at the trial but also on three other legal grounds.
These have been amply considered in the light of the evidence on record in its entirety by the learned trial judge. He states:
“I hold that in the balance of probabilities the plaintiff failed to discharge the burden on him to produce sufficient and probable evidence entitling him to judgment. His case is riddled with serious material conflicts and inconsistencies which makes it difficult to accept . The 1st Defendant on the other hand has established his case to the satisfaction of the satisfaction of the court.” There is no reason to arrive at a different conclusion form the court below.
The judgment is indeed sound in law and on the fact.
In the result all the plaintiff/Appellants grounds of appeal are dismissed. The appeal fails.
Judgment is entered in favour of the Defendant/Respondent on his counter-claim
Judgment of the court below is hereby affirmed, court below to carry out.
P.K. OWUSU-ANSAH
JUSTICE OF APPEAL.
ABBAN,J.A.:- I agree with the judgment of my learned brother President
and the reasons for his conclusions.
H. ABBAN [MRS.]
JUSTICE OF APPEAL.
KUSI-APPIAH, J.A.:- By his amended writ of summons at the Circuit Court,
Kumasi, the Plaintiff/Appellant [hereinafter called the Plaintiff], claim against the
Defendants/Respondents [hereinafter called the Defendants], jointly and severally
the following reliefs;
“[I] A declaration of title and beneficial ownership of that 50 building
plots at Bosore/Ashanti bounded by Sisirasi land, Atakyem land
and Kwaku Duah’s Oil Palm Plantation.
[ii] An order setting aside the arbitral proceedings between plaintiff
and 1st defendant before Nananom at Ejisu.
[iii] special damages.
[iv] An order of perpetual injunction restraining the defendants, their
servants and or agents from in any manner whatsoever from
in any manner whatsoever from interfering with the property in
dispute”.
The basis for the plaintiff’s reliefs are contained in paragraphs 3-13 of his
amended statement of claim, which read:-
“3 The plaintiff says that between 1987 and 1990 he acquired 50
building plots from the Odikro [2nd Defendant] and elders of
Bosore and paid the necessary “aseda” and immediately went
into possession of same together with others and developed about
15 plots by erecting 6 housing units and a church thereon with
other buildings developed to various stages.
- The Plaintiff says that the land he acquired shares boundaries with
Sisirasi land, Atakyem and the Oil Palm Plantation of Kweku Duah.
- The Plaintiff states that subsequently to the knowledge of the 1st and
2nd Defendants Kweku Duah aforementioned had claimed and won
a part of the land so granted him by the chiefs and Elders of Bosore.
- The part of the land then claimed by the said Kweku Duah nearly
encompasses the land being now claimed by the 1st defendant, but
the said Kweku Duah after he had won the same abandoned his said
land to plaintiff. The 1st Defendant is thus estopped from claiming same.
- The plaintiff says that sometime in 1995 the 1st Defendant challenging his title to the property the subject-matter of this action
and in the process destroyed by himself and his agents and or servants an almost completed building belonging to the plaintiff;
and the 1st defendant and his agents and or servants also destroyed
a structure the plaintiff has constructed and use as a church.
- The plaintiff states again these destructive acts of the 1st Defendant
and his agents aforementioned caused him damage and financial loss to the tune of ¢6 million being the cost of property destroyed.
- The plaintiff hastens to add that the wrongful conduct of the 1st
Defendant recounted in paragraph 7 above was the basis of a complaint he made to the police at Antoa which was however discontinued because the Defendant but has failed so to do.
- The Plaintiff adds again that at the Antoa Police Station the 2nd
Defendant gave a statement thereat on the 3rd of April, 1995 wherein he admitted the grant of the land herein to him.
- Recently however when the Defendant sent the plaintiff before an
arbitration at the Ejisu Traditional Council whereat the 2nd Defendant gave a perjured and fraudulent evidence to the effect that
he had never allocated the plot in dispute to the plaintiff.
- The plaintiff repeats paragraph 11 herein and states that upon the
Said fraudulent and perjured evidence given by the 2nd defendant,
Nananom found the plaintiff liable at the arbitral proceeding.
Particulars of Fraud and or Perjury
[a] Falsely swearing and/or stating before the arbitral panel that
he had not granted the land in dispute to plaintiff when he
knew the same to be false.
- The plaintiff repeats paragraph 11 and 12 herein and shall contend
That by reason of the allegations therein contained the said arbitration ought to be set aside…..”
The defendants also put in a counter claim. They claimed for a declaration that all that piece and parcel of land situate and lying at Bosore on Ejisu stool and bounded by Asukese stream. Bosore township, Opanin Osei Tutu and Atakyem
lands is the defendants family property. They also counter claimed against the plaintiff for damages for trespass and an order for injunction restraining the plaintiff, his assigns, servants and/or agents from in any manner interfering with the defendants possession and occupation of the aforesaid land.
At the close of pleadings, the following issues were set down for trial:
[1] Whether or not the plaintiff acquired the land in dispute from the 2nd
defendant and his elders as alleged.
[2] Whether or not Kweku Duah claimed part of the land in dispute to the
knowledge of the 1st defendant.
[3] Whether or not the 1st Defendant trespassed into the land so acquired by the
plaintiff.
[4] Whether or not the 2nd defendant made statements to the Antoa Police on
3rd April, 1995 on the grant of the land in dispute to the plaintiff.
[5] Whether or not the plaintiff is estopped by the Arbitration initiated by the
1st defendant before the Ejisu Traditional Council.
[6] Whether or not the decision given at the said Arbitration was tainted by
fraud and perjury on the part of the 2nd defendant.
[7] Whether or not the land in dispute is the family property of the 1st
defendant, and
[8] Any other issues arising on the pleadings.
After examining and evaluating the evidence adduced by the parties and their witnesses the learned trial Judge held inter alia that, the plaintiff failed to discharge the burden on him to produce sufficient and probable evidence entitling him to judgment. The trial judge added that the plaintiff’s case is riddle with serious material conflicts and inconsistencies which makes it difficult to accept.
Accordingly, he dismissed the plaintiff’s claim and gave judgment for the 1st defendant on his counter claim and decreed title of ownership of the land in his family.
It is this judgment that the plaintiff invites this court to set aside and enter judgment in their favour. Three additional grounds of appeal were filed together with the original ground of Appeal. The grounds are:-
[I] The trial Circuit Judge erred in holding that the allocation note issued to the
plaintiff was void for non-registration.
[ii] The learned Circuit Judge erred in holding that Exhibit ‘D’ the investigation statement of the 2nd defendant made to the Police was improperly admitted in evidence because of the absence of an independent witness.
[iii] The learned Circuit Judge erred in holding that the arbitration before the
Ejisu Traditional Council was valid and thereby estopped the plaintiff from
Initiating the action.
[iv] The judgment is against the weight of evidence.
Arguing on behalf of the appellant, Mr. Sondem began with additional ground one [1] and submitted that the Circuit Judge erred in holding that Exhibit ‘B’ allocation note issued to the plaintiff was a nullity and of no effect for non-registration. He contended that an allocation note is not an instrument within the meaning of section 36 of Act 122 in respect of which the provisions of section 24[1] of Act 122 applies. Learned counsel argued that an allocation note such as
Exhibit ‘B’ is only the first step in the acquisition of a registrable instrument and that non-registration of the allocation note does not make it a nullity as held by the trial judge. He maintained that since the allocation note [Exhibit ‘B’], was in writing ,it complied with the Conveyance Decree, 1973 [N.R.C..D. 175], and thus
enforceable, at least, against, the second defendant as vendor. He cited the following cases to support his stand:- MACLEAN II and ANOTHER VRS: AKWEI II [1991] 1 G.L.R. 54 C.A. holding one AMUZU VS: OKLIKAH [1998-99] SCGLR 141 at 142 –143 and NARTEY VS: MECHANICAL LLOYD ASSEMBLY PLANT LTD. [1987-88] 2 GLR 314 S.C.
For his part, learned counsel for the respondents , Mr. Kwasi Afrifa did
not react or respond to the appellant’s additional ground [I]. That notwithstanding, I am duly bound to examine the submission by counsel for the Appellant on this ground and come out with my decision.
In his judgment, at page e146 of the record of appeal, the learned Circuit
Judge delivered himself as follows:-
“………. I think that the Allocation Paper by reason of not being registered
as an instrument affecting land is of no effect. The Land Registry Act, 1962. [Act 122] the current principal enactment on the registration of
instruments provides in S. 3 that “any instrument may be registered under
the Act.”
The learned judge continued:
“Instrument” is defined in the Interpretation section of the Act [S.36] as
“any writing affecting land situate in Ghana, including a judge’s certificate
and a memorandum of deposit of title deeds.”
The trial judge then referred to section 24[1] of Act 122 and cited the case of ASARE VRS: BROBBEY [1971] 2GLR 331 to arrive at his conclusion that the
Allocation note [Exhibit ‘B’] was a nullity and of no effect for non-registration.
[See pages 146-147 of the record of appeal].
I think the trial Judge erred in his reasoning for holding that the allocation note is null and void and of no legal effect for non-registration. The non-registration of an allocation note Exhibit ‘’B’ contrary to the trial Circuit Judge’s view, does not make it a nullity. Contrary to the view of the trial judge, the allocation note which was in writing complies with the conveyancing Decree, 1973, MR. C.D. 175 and thus enforceable, at least, against the 2nd defendant vendor.
In the case of MACLEAN II and ANOTHER VRS: AKWEI II [1991] 1 GLR C.A. holding 1, this court stated.
[1] the non-registration of the document [Exhibit 2] executed in favour
of the second defendant by the predecessor of the plaintiff on the
Sempe Stool did not make that document void. By the provision
of section 24[1] of the Land Registry Act, 1962 [Act 122], the non-
registration only rendered the document invalid. However, since
the agreement contained in the document was in writing, it was
capable of being enforced against the Sempe Stool as Vendor.
Besides, there was a relationship crated in equity between the
Plaintiff as the Vendor whose duty it was to see to the registration
of the instrument, would hold the land in trust for the second defendant until the registration or validation of the instrument.
Accordingly, to allow the plaintiff to rely on the non-registration
of exhibit 2 to avoid the grant and deprive the second defendant of
her purchase would amount to fraud.
In any case, granted that an allocation note [Exhibit ‘’B’] is
a registrable instrument, the question is: whose duty is it to register
It ? On the Authority of MACLEAN II case cited supra, where a
document that is registrable is not registered, it is nonetheless
enforceable in equity against the party that was responsible for its
registration. In this appeal, the second defendant as Vendor, had
the duty to ensure that the allocation note, if indeed is a registrable
instrument, is registered and not the plaintiff.
The law is settled that – registration under Act 122 does not
confer state guaranteed title on the grantors who have no title at all.
See NARTEY VRS: MECHANICAL LLOYD – ASSEMBLY
PLANT LTD. [1987-88] 2 GLR 314 S.C.
In the recent case of AMUZU VRS: OKLIKAH [1998-99]
SCGLR 141 at 142-143 the Supreme court [per Hayfron-Benjamin JSC had this to say on the law of registration:
“Asare vrs: Brobbey [1971] 2 GLR 331, C.A. cannot stand
it did not take into consideration any equitable doctrine or rule which could ameliorate the harshness of the statute… while a party
with an unregistered document may be unable to assert a legal title
in court, nevertheless the document will take effect in equity and will defeat all claims except the holder of the legal title……”
On the strength of the above authority, Mr. Sondem, submitted rightly in my view that the allocation note, Exhibit ‘B’ is only the first step in the acquisition of a registrable instrument and
that the courts will be stretching the law of registration of deeds too
far to require that an allocation note paper dully issued by a grantor
is of no effect because if has not been registered.
In the light of my view that the allocation note, Exhibit ‘B’
Remained subsisting and enforceable in equity against the Vendor and will defeat all claims except the holder of the legal title, the observation of the trial judge on the allocation note was completely
erroneous and invalid.
Next to consider is the ground two of the additional grounds of appeal which states as follows:-
[ii] The Learned Circuit Judge erred in holding that
Exhibit ‘D’ the investigation statement of the
2nd Defendant made to the police was improperly
admitted in evidence because of the absence of an
independent witness.
This holding by the learned Circuit Judge can be found at pages 144-146 of the record of appeal. At page 144, line 20 of the record of Appeal, the Learned
Judge reasoned as follows:-
‘The purpose of tendering that statement [Exhibit ‘D’] in evidence, it appears to me, was to contradict Nana Ababio and to prove that his evidence was not worthy of credit. As a general rule, witness whose evidence on oath is contradictory of a previous statement made by him whether sworn or unsworn is not worthy of credit. And his evidence cannot therefore be regarded as being of any importance in the light of his previous contradictory statement unless he is able to give a reasonable explanation for the contradictions. See STATE VS: OTCHERE [1963] 2 GLR 463, GYABAAH VRS: R. [1984-86] 2 GLR 461.
I am in complete agreement with the learned trial judge’s proposition of the law as stated above. However, I find it difficult to agree with the trial judge’s proposition that the second defendant’s statement he volunteered to the Antoa Police on the issue of the grant of the disputed plots to the appellant was wrongly admitted in evidence and thus sinned against section 76 of the Evidence Decree1975 [N.R.C.D. 323].
In expunging the second defendant’s statement to Antoa Police [Exhibit ‘D’] from the record as improperly admitted, the learned Circuit Judge delivered himself at the last paragraph of page 144 of the record of appeal as follows:-
“But I need to stress that it is the requirement of the law that such a
witness whose evidence is being attacked must by necessity be given
the platform or the opportunity to give a reasonable explanation for the
contradictions. In the instant case under my consideration Nana Ababio
did not have that opportunity. He died whilst the case was still pending
and at a time PWI had tendered his statement in evidence but when Nana
has offered no evidence.
The result ? That sinned against S. 76 of the Evidence Decree 1975
[N.R.C.D. 323] and it is my respectful view that that statement was wrongly admitted in evidence. And in the exercise of powers conferred on me by S.76 of N.R.C.D. 323 I hereby expunge Nana Ababio’s statement from the record as improperly admitted ……….”
With all due respect of the learned Circuit Judge, the record of appeal indicates that Nana Ababio, the 2nd defendant was joined in the suit long before the appellant gave evidence. The 2nd defendant’s statement,
Exhibit ‘D’ was tendered in evidence by the Police officer into whose hand
The statement came in the course of his official duties.
It was never put to him that Nana Ababio, the 2nd defendant, never gave that statement. Neither was it was suggested to him [the police officer]that the statement, Exhibit ‘’D’ was not authentic or frawed in anyway or manner.
The defendant and his counsel had all the opportunity to attack that statement in cross-examination, but not a single question was put to him [police officer] in that regard.
The learned trial Judge was consequently in error when he held that that statement as inadmissible. He misdirected himself as to the law on admissibility.
It is pertinent to note that this statement was tendered without objection from the defendants. Nana Ababio, the 2nd defendant was served with the plaintiff’s statement of claim, but he never responded until he died. And in the light of the failure of Nana Ababio to put in a statement of defence before he died, either confirming or traversing the allegation of the plaintiff in his statement of claim in that regard, it cannot be said that [the witness or party], the 2nd defendant, was not given an opportunity to defend himself. Therefore, the basis of the trial judge’s holding in relation to the admissibility of Nana Ababio’s voluntary statement of police [Exhibit ‘D’] is untenable.
The law on admissibility as I understand it is that:
[1] For a document or a testimony to be admissible, it must
be relevant to the issue[s] in controversy.
[2] It must be tendered by a witness who is either.
[a] the author or maker thereof
[b] A person unto whose hand the document or
testimony has come in the course of his official
duties or business dealings.
But all these are also subject to the rules of hearsay and privilege
and other exclusionary rules, even though the document may be relevant to the issues in question.
As rightly pointed out by the learned trial Judge, a prior inconsistent statement of a party or witness, though relevant and admissible may nevertheless be excluded where the party or witness had not been given opportunity to explain the apparent inconsistency.
But here, the party, the 2nd defendant had been served with a statement of claim, alleging the material facts of his prior inconsistent statement at the Antoa Police station “as evidence by Exhibit ‘D’ and his testimony before Nananom arbitration at Ejisu, he [the 2nd defendant] never
Traversed that allegation by way of statement of defence at all. And as I have said earlier above, the defendant[s] never even made any specific denials to the plaintiff’s allegation contained in paragraphs 10 and 11 of his amended statement of claim.
I fact, the defendants never filed any amended statement of defence in response to this specific allegations of the plaintiff.
For these reasons, I hold that the trial judge fell into a grave error of law when he held that Nana Ababio’s [the 2nd defendant] statement of Antoa Police on 3rd April, 1995, Exhibit ‘D’ was inadmissible.
There is also evidence on record that the trial judge based his decision to expunge the 2nd defendant’s statement [Exhibit ‘D’] from the record on section 76 of the Evidence Decree. I must say without any hesitation that section 76 of the Evidence Decree, talks abut inconsistency between a witness testimony at trial and extrinsic evidence of a statement made by the same witness on the same issue. Indeed, section 76 of the Evidence Decree deals with situations where a witness has given testimony at the trial which testimony contradicts his earlier out of court statement or evidence.
I therefore hold that since the 2nd defendant did not testify in the trial and had also not resisted the plaintiff’s claim in nay form, section 76 of the Evidence Decree, 1975 NRCD 3233 is inapplicable to this case.
Worse of all, the learned trial Judge in rejecting the 2nd defendant’s statement given to Antoa Police, which forms part of Exhibit ‘D’ also based his reason on the following:-
“One other reason which could be offered to reject that statement
is that it was not taken in the presence of an independent witness
mandatory required by S. 120[2],[3] and[4] of the Evidence Decree
1975 [N.R.C.D. 323] as amended…..’
With all due respect to the trial Judge, that cannot be true. This is because, the investigative statement was not confession statement. It was not intended to show that the maker of the statement was confessing to a crime against himself. The 2nd defendant’s statement to Antoa Police, Exhibit ‘D’ was produced to show a prior inconsistent statement by the maker, that is
Nana Owusu Kwame Ababio, the Chief of Bosore, in respect of the same subject- matter in dispute.
In his evidence to the arbitrators, Nana Ababio has stated that he had only given one plot of land to the plaintiff. But in his statement to the police at Antoa , Exhibit ‘D’ given before the trial before the arbitrators, Nana Ababio had stated categorically that he had given 50 plots of land to the plaintiff for church activities, of which the then assemblyman, the committee vice-chairman and other Executives agreed.
I therefore further hold that the learned Judge misconceived and misapplied the law. I have no doubt in my mind that the learned trial judge would have found for the plaintiff if he had not erroneously held Exhibit ‘D’ [Nana Ababio’s statement to police at Antoa] inadmissible.
I now proceed to deal with the third aground of the additional grounds of appeal which states that, the learned Circuit judge erred in holding that the arbitration before the Ejisu Traditional Council was valid and thereby estopped the plaintiff from initiating the action.
Arguing this ground , counsel for the appellant contended that the
Above third ground is intended to resolve or dispose of issues [e] and [f] of Summons for Directions.
They are:-
[e] Whether or not the plaintiff is estopped by the Arbitration
by the 1st defendant before the Ejisu Traditional council,
and
[f] Whether or not the decision at the said arbitration was
tainted by fraud and perjury on the part of the 2nd defendant.
Learned counsel submitted that the gravemen of the 1st defendant’s case of the 50 plots of land in dispute as his family property is predicated upon the arbitral proceedings at Ejisu Traditional Council, Exhibit “2’. He pointed out that, the arbitrators based their award solely on the perjured testimony of Nana ababio the chief of
