J.C.K. Hayfron and Mrs. Wilhelmina Marteko Sackey (suing as administrators of the Estate of the late Robert Kwesi Hayfron) v Godwin Anyiogu and Janet Amuah

[1] Brief facts

The Plaintiff and Defendants assert rival titles to the piece or parcel of land situate lying and being at McCarthy Hill-Accra aforesaid containing an approximate area of 0.297 acre.

 

The Plaintiffs issued the Writ of Summons with an accompanying Statement of Claim on 20th March 2018 which was amended on 17th August 2020 for the following reliefs:

1. “A declaration that the deceased is the legal and beneficial owner of all that piece or parcel of land situate lying and being at McCarthy Hill-Accra aforesaid containing an approximate area of 0.297 acre bounded on the North- West by G.A. Osekre’s land measuring 130 feet more or less on the South- East by B.T. Acromond’s land measuring 130 feet more or less on the North- East by open space measuring 100 feet more or less and on the South-West by proposed road measuring 100 feet more or less which piece or parcel of land is more particularly delineated on the plan attached thereto. Which piece or parcel of land is more particularly (herein after is referred to as the land).

2. A declaration that the actions of the Defendants constitute an unlawful

interference and trespass of the deceased’s land.

3. An order of perpetual injunction refraining the Defendants or any other whether by themselves or by their relations, servants, assigns or agents of whatever description from entering unto and interfering with the interest of the deceased and that of the Plaintiffs.

4. Damages for trespass

5. Cost of litigation including lawyer’s legal fees.

6. Any other orders that the court may deem meet.

The 1st Defendant entered conditional appearance on 28th March 2018 and filed his Statement of Defence on 21st May 2018 which was amended on 2nd September 2020.

 

By an order of joinder dated 13th May 2020 the 2nd Defendant Janet Amuah was joined as a Defendant.

[2] Issues

The Plaintiff did not file Reply and Defence to Counterclaim. The Plaintiff filed application for direction on 21st June 2018 and the Defendants filed additional issues on 6th July 2018. At the close of pleadings the following issues were set down by the Court for determination of the controversy between the parties:

1. Whether or not the Estate of the late Robert Kwesi Hayfron is legal and the beneficial owner of the land in dispute?

2. Whether or not the Defendant has any legal interest in the disputed land?

3. Whether or not the Defendant has trespassed on the disputed land?

4. Whether or not the Defendant’s action is statute barred?

Defendants’ additional Issues

1. Whether or not Plaintiffs are caught by statute of limitation having watched the Defendant develop the land since 1986?

2. Whether the Publication on Saturday, 14th 2011 in the Spectator newspaper constitute further notice of Defendant’s interest in the land dispute to the Plaintiffs?

3. Whether the Plaintiffs are estopped from claiming an interest in the land the subject matter of the suit having failed to raise any objections as per regulation 54 of the Land Title Regulation 1986?

4. Whether the land in dispute belongs to the Gbawe Kwatei Family of Gbawe, Accra or Nii Kofi Akrashie II the Plaintiffs root of title?

5. Whether Plaintiffs are entitled to their reliefs?

6. Whether Plaintiffs has capacity to institute the present action?

7. Whether the land claimed by the Plaintiffs is the same land claimed by the Defendant?

[3] The Plaintiffs’ Case

It is the Plaintiffs case that they are the Administrators of the estate of the late Robert Kwesi Hayfron. The 1st Defendant is alleged to have trespassed on the late Robert Kwesi Hayfron’s land. The 2nd Defendant claims to have obtained a grant of a portion of the deceased land from the 1st Defendant.

The Plaintiffs state that by an indenture dated 27th September 1969 between Godwin Aggrey-Fynn and Robert Kwesi Hayfron (Deceased) on the other part, the Vendor leased all that piece or parcel of land situate lying and being at McCarthy Hill aforesaid containing an approximate area of 0.297 acre bounded on the North-West by G.A. Osekre’s land measuring 130 feet more or less on the South-East by B.T. Acromond’s land measuring 130 feet more or less on the North-East by open space measuring 100 feet more or less and on the South-West by proposed road measuring 100 feet more or less which piece or parcel of land is more particularly delineated on the plan. The Plaintiffs say that after the acquisition of the land, the deceased took possession of same and in order to protect and secure the land, built a wall around it and gated it. The Plaintiffs say that in 1970, the late Robert Kwesi Hayfron registered the land at the Deeds Office (the then Lands Commission) with reference number AC6819A/1969. The transaction was concurred by the Lands Commission as LS No. 530/6 and LS No. GSKL1232/1969. In 1979, the deceased went into exile in London United Kingdom and resided there until his untimely death on the 19th of October 2007.

On the 31st day of March 2008, the Plaintiffs, upon an application to the High Court, Accra were appointed as the Administrators of the Estate of the deceased. The Plaintiffs say that in the process of collecting the estate of the deceased for the purposes of administering same, the Plaintiffs discovered that the deceased owned the subject matter land (above described) during his lifetime. The Plaintiffs say that Searches conducted at Lands Commission on the 14th of June 2017, indicated that the land is still registered in the name of the deceased. The Plaintiffs say that they therefore took steps to locate the land, take possession of same and distribute it per the wishes of the deceased but upon discovery of the land however, the Plaintiffs realized that the 1st Defendant had trespassed on a portion of the land with other portion untouched and undeveloped.

The Plaintiffs claim that they and other beneficiaries of the deceased’s estate confronted the 1st Defendant, put him on notice about the trespass and further warned the 1st Defendant to desist from any further acts of trespass or development of land especially the other vacant portion of the land. That in disregard of their warning, the Plaintiffs thereafter saw ongoing developments on the land and upon enquiries; it came to their attention that it was the 1st Defendant who was developing the land. The Plaintiffs warned the 1st Defendant to put a stop to the ongoing developments on the land but however realized that the 1st Defendant in defiance to the warning had resorted to building day and night to

 overreach the Plaintiffs. The Plaintiffs say that the 2nd Defendant has subsequently indicated that she is the one developing the land and that the same was sold to her by the 1st Defendant. The Plaintiffs say that the said claim by the 1st Defendant is a ploy by the Defendants to overreach the Plaintiffs. The Plaintiffs say that the Defendants will continue to interfere with the Plaintiffs’ interest in the land unless compelled by the Court.

[4] The Defendants’ Case

The Defendants denied the Plaintiffs case in its entirety. The 2nd Defendant states that she validly obtained a grant of a portion of the disputed land from the 1st Defendant and denies that the disputed land belongs to the said Robert Kwesi Hayfron (deceased). The 1st Defendant states that on the 27th day of September 1996, he acquired the disputed land from Nii Oblogo Lamptey, the head and lawful representative of Oblogo Lamptey family of Accra at a consideration of 700,000 cedis. Upon acquisition of the land, 1st Defendant went into immediate possession of same and on 3rd March 1997 he paid the sum of One thousand cedis as presentation fee for his document. Again on 23rd of December 1998, the Defendant successfully applied to Ga District Assembly-Amasaman for a building permit. According to the 1st Defendant he constructed his dwelling house with a wall on a portion of the land in 1999 and has been in peaceful possession for over seventeen (17) years without any hindrance from the Plaintiff as well as the late Robert Hayfron. He claims that after living on the land for ten years he heard that the said land belongs to Gbawe Kwatei family so he paid for the cost of land again through their head of family Nii Adam Kwatei Quartey who issued him with an indenture on 7th September 2009 and he used the indenture to register the land and obtained title.

The 1st Defendant stated that in the year 2014 he sold the remaining portion of the land to the 2nd Defendant for fifty thousand cedis (GH₵50,000.00). The 2nd Defendant stated that she conducted the necessary search at the Lands Commission and was satisfied that the grantor had the requisite title before the purchase of the said land.

[5] Burden of Proof

It is the position in our law that the Plaintiff who asserts usually has the burden of proving same on a preponderance of probabilities. Preponderance of probabilities, according to section 12(2) of the Evidence Act, 1975 (NRCD 323) means:

“… that degree of certainty of belief in the mind of the tribunal of fact or the court by which it is convinced that the existence of a fact is more probable than its non- existence.”

Where the Plaintiff has been able to lead sufficient evidence in support of his case, then it is incumbent upon the Defendant to lead sufficient evidence in rebuttal otherwise the Defendant risks being ruled against on that issue or issues. Under Section 11(4) of NRCD 323, a party discharges the burden of producing evidence when the party produces “… sufficient evidence so that on all the evidence a reasonable mind could conclude that the existence of the fact was more probable than its non-existence”.

 

In Okudzeto Ablakwa (No. 2) v. Attorney-General & Obetsebi-Lamptey (No. 2) [2012] 2 SCGLR 845, the Supreme Court in dealing with the burden of proof held at page 867 of the report as follows:

“… he who asserts, assumes the onus of proof. The effect of that principle is the same as what has been codified in the Evidence Act, 1975 (NRCD 323), s 17 (a) …What this rule literally means is that if a person goes to court to make an allegation, the onus is on him to lead evidence to prove that allegation, unless the allegation is admitted. If he fails to do that, the ruling on that allegation will go against him. Stated more explicitly, a party cannot win a case in court if the case is based on an allegation which he fails to prove or establish.”

I cannot exhaust the issue of the burden of proof enough, without a reference to the Supreme Court’s decision in Osei vs Korang [2013] 58 GMJ 1 at page 22 where Ansah JSC (as he then was) notes thus:

“Where in an action, the parties claim and counterclaim for declaration of title to the same piece of land, each party bears the onus of proof as to which side has a better claim of title against his/her adversary, for a counter claimant is as good as a plaintiff in respect of a property which she/he assays to make his/her own…” See also: Fosua & Adu-Poku vs. Dufie (Deceased) & Adu Poku-Mensah [2009] SCGLR 310 at 325-327 per Atuguba JSC; Yorkwa vs. Dua [1992-93] GBR 278 at 282 per Brobbey JA (as he then was);Amidu Alhassan Amidu & Another vs. Mutiu Alawiye & 6 Others [2019] DLSC 6573 at page 5 per Pwamang, JSC quoting Amissah J.A. in Ricketts v. Addo [1975] 2 GLR 158 at 166, CA, on standard of proof- burden to be established in land disputes-declaration of title.

 

Nartey V Mechanical Lloyd Assembly Plant Ltd [1987-88] 2 GLR 314, per Adade JSC, on the burden on a person who comes to court to make a good case for the court to consider otherwise he must fail; and Odametey vs Clocuh [1989-90] 1 GLR 14, on the time-honoured principle that if the plaintiff totally failed to make out a case for title to land, he could not rely on the weakness in the defence.

The Supreme Court in the case of Mondial Veneer (Gh.) Ltd. v. Amuah Gyebu XV (2011) SCGLR 466, laid down the nature of the evidence that a party who seeks declaration of title to land must lead in order to get a ruling in that person’s favour. The Supreme Court speaking through Georgina Wood CJ (as she then was) noted on page 475 of the report as follows:

“In land litigation … the law requires the person asserting title and on whom the burden of persuasion falls … to prove the root of title, mode of acquisition and various acts of possession exercised over the subject matter of litigation. It is only where the party has succeeded in establishing these facts on a balance of probabilities that the party would be entitled to the claim.”

Similarly in Abbey v. Antwi [2010] SCGLR 17, the Supreme Court held at holding 2 of the headnotes as follows:

“In an action for a declaration of title to land, the plaintiff must prove, on the preponderance of probabilities, acquisition either by purchase or traditional evidence; or clear and positive acts of unchallenged and sustained possession or substantial user of the disputed land.”

[6] Summary of evidence

The Plaintiff testified through Irene Aba Nicol-Hayfron (PW1) and did not call any witness. She tendered into evidence the following exhibits:

 

1. Exhibit A - Will of Robert Kwesi Hayfron

2. Exhibit B - Lease dated 27th September 1969 between Godwin Aggrey-Fynn and Robert Kwesi Hayfron

3. Exhibit C - Search Report dated June 2017

4. Exhibit D - Photograph of Wall and structure

The 1st Defendant testified himself and called one witness Isaac Nii Quartey. The 2nd Defendant testified alone. The Defendants and DW1 tendered in evidence the following Exhibits:

1) Exhibit 1 -  Lease dated 27th September 1996 between Nii Oblogo Lamptey and Godwin Uche Angiogu

2) Exhibit 1(a) -  Plan of land dated 20th March 2006

3) Exhibit 2 - Official receipt – Land Valuation Board, 3rd March 1997

4) Exhibit 3 - Building permit, Ga District Assembly, 23rd December 1998

5) Exhibit 4 - Lease dated 7th September 2009 between Adam Kwatei Quartey (Gbawe Kwatei Family) and Godwin Uche Angiogu

6) Exhibit 5 -  Plan of Land Godwin Uche Anyaogu

7) Exhibit 6 - Land Title Registry, Acknowledgement, 6th October 2009 (Form LR 28)

8) Exhibit 7 - The Spectator, 14th May 2011, publication Land Title Registry

9) Exhibit 8 - Transfer of part of leasehold, received 25th August 2014

10) Exhibit 9 - Land Certificate to Janet Amuah from 13th September 2009

11) Exhibit 11 series -  Series of Judgments (four)

The Court Expert CE1 testified and tendered in evidence the following exhibits:

1. Exhibit CW1 - Report on Land situate at Aplaku Maccarthy Hill/Gbawe

2. Exhibit CW2 - Composite Plan

[7] The Court’s Evaluation & Analysis of the Evidence

The Court shall determine the main issues as set out above based on the facts and evidence adduced at the trial. Indeed, it is the policy of the law that only those issues that are germane to the determination of a case must be decided by the court and not irrelevant issues although the parties might have led evidence on them. See the case of Domfe vs Adu (1984- 86) 1 GLR 653.

I will proceed to address the issues as set down for trial. Some of the issues will however be dealt with together as they are interrelated.

[7.1] Issue 1

Issue 1 - Whether or not the Estate of the late Robert Kwesi Hayfron is legal and the beneficial owner of the land in dispute?

It is the case of the Plaintiffs testifying through PW1 that her father the late Robert Kwesi Hayfron died on 19th October 2007. It is the further case of PW1 that after his death they discovered a Will. By an indenture dated

 

27th September 1969 between Godwin Aggrey-Fynn on one part and Robert Kwesi Hayfron the vendor conveyed all that piece or parcel of land situate lying and being at MacCarthy Hill- Accra. The land covers an approximate area of 0.297 acres.

PW1 tendered in evidence Exhibit B an indenture dated 27th September 1969 with a site plan of the land. According to PW1 after the acquisition of the land her deceased father took possession of the land and to protect it built a wall and gated it. PW1 states that the deceased registered the land at the Deeds Office then Lands Department at that time, with reference number AC6819 A/1969. The transaction was concurred by the Lands Commission as LS. 530/68 and LS. GSL 1232/1969.

It is the further case of PW1 the deceased went into exile in London, United Kingdom and resided there until he died on 19th October 2007. The Executors were granted Probate on 31st March 2008 in the course of administering the estate discovered that the deceased owned the land described above during his lifetime. PW1 continued with her testimony by stating as follows:

“Searches conducted at the Lands Commission on the 14th of June, 2017, indicated the deceased is still registered at his grantor’s name Godwin Aggrey-Fynn and that it has not been affected by any transaction (Marked and attached as Exhibit C is the searches conducted at the Lands Commission dated the 14th of June, 2017. The Plaintiffs took steps to relocate the land of the deceased and distribute per the wishes of the deceased. Upon discovery of the land, it came to the attention of the Plaintiffs that the Defendant had trespassed on a portion of the land of the deceased.”

 

On 26th April 2022 when PW1 was cross-examined by Counsel for Defendants she made some startling revelations that she did not know about the acquisition and possession of the land in dispute. The evidence she proffered on the acquisition of the land was based on what she was told. Find below an extract of the cross-examination:

“Q: How old are you? A:  I am 50 years old.

Q: Can you confirm to the court when your father as you alleged acquire the disputed land?

A:  I believe it was in September, 1969.

Q: And what you just said is based on what you have been told is that not so?

A: Yes my lady.

Q: In fact in 1969 you were not born? A: No I was not born.

Q: So that as you sit here you would have no knowledge of whether your

father’s alleged grantor had valid title to the land you cannot tell.

A: No I cannot tell.

Q: Do you know Godwin Aggrey-Fynn? A: No I do not know him.

Q: And Godwin Aggrey-Fynn has never owned the disputed land before.

A: I would not know about that. (emphasis mine)

Q: In this court you have annexed what purports to be your father’s Will to

your witness statement is that not so?

A: Yes I have.

Q: And you will agree with me that as evident on that Will, your father appended his signature by indicating his initials that is RK Hayfron that is correct.

A: Yes that is correct.

Q: You have also annexed to your witness statement a search report dated 14th June 2017.

A: Yes my lady.

Q: You still rely on the contents of that search result. A: Yes I do.

Q: You would agree with me that the disputed land forms part of the lands owned by the Gbawe Kwatei Family since 1963 as clearly indicated on the search.

A: Anything prior to September 1969 I have no knowledge.

Q: I put it to you that even the events that happened in 1969 you have no knowledge of same because you were not born.

A: Yes I have said so.

Q: Because of your absence of any knowledge concerning the disputed land all you did was to conveniently copy the recitals in your indenture as your witness statement.

A: No I did not.

Q: Do you want the Court to believe that the expressions and description of the land in your witness statement specifically paragraph 2 should not be taken as what is contained in the indenture?

A: We have the originals to back that statement up.

 

Q: Before this Court you have no positive evidence to support your bare allegation that your late father constructed a wall around the land and also registered the alleged deed, I put that to you.

A: We have what is registered at the lands Commission to support my witness statement.

Q: You will agree with me that the 1st Defendant’s building in which he lives

is adjacent to the disputed land is not in doubt.

A:  Yes my lady.

Q:  And you will also agree with me that the disputed land is where the 2nd

Defendant’s uncompleted building is situate that is also not in doubt.

A:  No it is not in doubt. (Emphasis mine)

Q:  And it is again not in doubt that the 1st Defendant’s has been on his land

since the 1990s I put that to you.

A:  That was what I was told that he has been there since 1990.

Q: It is also not in doubt that the whilst the 1st Defendant developed his property and in fact his continuous living in the property for over 17 years there was not resistance.

A: Yes it is not in doubt but we were on exile out of the country so we were not aware of anything being done on the land or if the Defendant went through the necessary process we are not aware.

Q: From your immediate answer you were not bothered with the land since 1979 until you commenced the instant action is that not so?

A: Yes I would not say we were not bothered, we were in exile as I said before.”

Plaintiffs’ Counsel Julio De Medeiros in his written address filed on 10th May 2024 stated as follows:

 

“Upon acquiring the land, the deceased took possession of same by building a wall around it with a gate. Evidence on record also shows that the deceased registered his land on the 20th day of February 1970, at the Deed office, the Lands Department at the time, with reference number C6819A/1969. The transaction was consented to by the Lands Commission as LS No. 530/68 and LS No. GSL 1232/1969. My Lord, it is instructive to note that patent on the face of EXHIBIT C is proof that the interest of the Deceased’s grantor preceded the judgment registered by the Gbawe Kwatei Family. EXHIBIT C also indicates that the Deceased’s land was still registered in the name of his grantor, Godwin Aggrey-Fynn and that, it had not been affected by any transaction as at 14th June, 2017. My Lord, we humbly submit that the land in dispute was owned by the late Robert Kwesi Hayfron and forms part of his estate and as such, must be collected and distributed among the beneficiaries

according to his wish as expressed in his Will.”

Counsel for Defendants Paa Joy Akuamoah Boateng in his written address filed on 14th June 2024 delivered himself thus: “We cannot, but bluntly say, that the Plaintiffs wasted the precious time of the honourable court in compelling this litigation over a parcel of land to which the evidence they relied on proved to be very different from the subject matter of the dispute. Your Ladyship, the observation in paragraph “1” above is more evident per the composite plan (Exhibit CW2) prepared by the Court’s Appointed Expert (CE1) who tendered his report of same (Exhibit CW1) in evidence without any objection from any of the parities as per the proceedings of the 27th day of February 2024. It is important your Ladyship, to emphasis that the Report of the Court’s Expert (CW1) accompanied by the Composite Plan (CW2) tendered in evidence were

without any objection from any of the parties. None of the parties also bothered to put any question to CE1. The implication of this is that, the parties did accept as sacrosanct the report of the surveyor and thus, same serves as an important guidance to the Honourable Court in determining:

a. Whether the land the Plaintiffs claim evidenced per their site-plan is the land the Plaintiffs litigated over?

b. Whether the disputed land is the same land evident on the Plaintiffs’ site- plan or the Defendants’ site-plans.

Whilst My Lady will find no difficulty from a cursory examination of Exhibit CW2, that the answer to the first posited question above is in the negative; that of the second question is easily resolvable in favour of the Defendants.

More specifically, from Exhibit CW2, it is very glaring as it is interesting, that the land described in the indenture the Plaintiffs rely on and same shown on the alleged site-plan of Robert K. Hayfron (Deceased) is marked yellow. This land, which the Plaintiffs claim form part of the estate of Robert K. Hayfron (deceased) is not the disputed land. Further, the Defendants’ site- plans all conform to the disputed area as per the composite plan. The implications of this vital evidence that:

i. The disputed land does not form part of the estate of Robert K. Hayfron (deceased) per the Plaintiffs’ own documentary evidence before the court, if weighed against Exhibit CW2.

ii. …

iii. At all times, the Plaintiffs were litigating over a land which they were not entitled to…”

 

Given the nature of the pleadings and the burden of proof cast on the Plaintiffs, the witness (PW1) Plaintiffs produced in Court knew next to nothing about the transaction. Save Exhibit B (indenture) the Plaintiffs were in no position to produce primary evidence.

A Plaintiff or Defendant-counterclaimant in an action for declaration of title to land has a duty to establish his mode of acquisition. The critical requirement has been clearly stated in the following cases: Kponuglo vs Kodadja [1933]2 WACA at 251

In judgment the Court is enjoined to consider every material fact evident on the face of the record and this includes cross-examination of the parties. In the case of Wood (substituted by) Asante-Koranteng vs Tamakloe & Derban [2007-2008] SCGLR page 852, holding 3 the Supreme Court held that

“in an appeal, the court is required to make its determination by taking into account every material fact evident on the face of the record.” I adopt same and apply the same consideration in this case.

When PW1 was told that her father’s alleged grantor never owned the land in dispute her response was ‘I would not know about that’. How does the Plaintiffs to prove the issue of acquisition if their only witness demonstrates that she knows next to nothing about the acquisition of the land in dispute?

“Q: And Godwin Aggrey-Fynn has never owned the disputed land before.

A: I would not know about that.(emphasis mine)”

The next material evidence evident on the face of the record is Exhibits CW1 and CW2 which I shall proceed to discuss presently.

Exhibits CW1 and CW2

The Court differently constituted on 31st January 2019 ordered that the Survey Department of Lands Commission, Accra to draw up a Composite Plan covering the land in dispute.

The Plaintiffs’ Counsel filed the following survey instructions on 20th February 2019:

1. “Produce a composite plan and indicate as follows

a. Plaintiff’s land as shown on the ground

b. Defendants’ land as shown on the ground”

2. The Defendants’ Counsel filed the following survey instructions on 5th March 2021:

“That a composite plan be drawn showing:

a. The land claimed by each party per their respective site plans

b. The land as pointed out to the surveyor on the ground by each party as belonging to them and or forming part of their land.

c. Whether any part’s land is within the others.

d. Whether the disputed land forms part of any of the defendant’s land

per their site-plan.

e. Any buildings, land marks, features or wall as pointed out on the ground by the Defendants as being put up or erected by any of them or within their land.”

The Director Survey & Mapping Division submitted a report and composite plan dated 25th May 2021. On 27th February 2024 the Assistant Geomatic Engineer Nathaniel Quarshie (CE1) testified about the work he had done. He explained the composite plan in evidence as follows:

“Q: You were served with the order of the Court to appear this morning?

A: Yes my lady.

Q: Per a Court order dated 31st January, 2019, the Survey and Mapping Division was tasked to prepare a composite plan in respect of the property subject matter of the dispute before this Court?

A:  Yes my lady.

Q: And you have with you the composite plan prepared and the report dated 25th May, 2021?

A: Yes my lady.

Q: Do you wish to tender same into evidence? A: Yes my lady.”

The Report and Composite plan were received into evidence without objection and marked as CW1 and CW2 respectively. Defendants’ Counsel waived the right to cross-examine CE1. Counsel for Plaintiff though given the opportunity to cross-examine CE1 under the applicablerules did not exercise that right though some adjournments were granted for him to exercise that right.

For ease of reference CW1 is set out below:

“Physical survey of the land in dispute carried out

…

A composite plan showing the land surveyed and superimposition of site plans for the respective claimants have been prepared thus:-

- Land surveyed as shown by rep. of the plaintiff, J.C.K HAYFRON is indicated (P1/D1, P2/D2, P3/D3 & P4/D4) and edged RED

- Superimposition of the site plan with Land Registry No. 311/1970 for ROBERT K. HAYFRON, presented by the Plaintiff is edged YELLOW.

- Land surveyed as shown by a rep. of the defendant, GODWIN ANYAOGU is indicated (P1/D2, P2/D2, P3/D3 & P4/D4) and edged RED.

- Superimposition of site plan (0.297 acre) for GODWIN UCHE ANYAOGU presented by the defendant is edged PURPLE.

- Superimposition of site plan for JANET AMUAH, presented by the defendant is CYAN.

- Area in dispute (0.282 Acre) as shown on the ground is the portion hatched

BLACK.”

On the facts the Plaintiffs claim from Godwin Aggrey Fynn who had the conveyance from J.G.A. Cleland in 1969 and 1st Defendant is claiming from, the Gbawe Kwatei family who plotted a judgment obtained on 01/02/1963 but the Plaintiffs’ land as indicated on their site plan completely falls outside the disputed area. The resultant plan produced by the Court appointed Surveyor (CE1), from the superimposition of the respective site plans of the parties showed the land allocated to the deceased Robert K. Hayfron falls outside the area in dispute (0.282 acre) hatched black on Exhibit CW2.

In the case of Salomey Shorme Tetteh & Nii Amon vs Mary Korkor Hayford (substd by Stella Larbi & Comfort Decker) Civil Appeal No. J4/34/2011 dated 22nd February 20222 Dotse JSC (as he then was) delivered himself thus:

“Before we consider the issues raised in the two grounds of appeal filed in this case, there are some procedural issues which must be dealt with for the guidance of parties, counsel and trial court Judges, whenever an order is made for a survey plan in a land dispute. The first one is of what relevance is the work of a Surveyor appointed by a court to assist in the determination of a land suit? …

It should thus be noted that, in view of the massive assistance that a court determining issues of title to land and other related and ancillary reliefs would derive from Survey Plans, care and some amount of professionalism should be exhibited by Counsel whenever a Survey Plan is ordered in contested land disputes. This is because, Counsel who is on top of his brief in a land suit, will definitely take advantage to ensure that overt acts of ownership and possession are clearly delineated by the Surveyor on the plan to boost his or her clients’ chances of success. Thus, the request for a survey plan if properly managed, will ensure that a lot of evidence will be introduced by the party through pictorial representation as will be delineated on the plan as if the court had moved to the locus in quo.”

In the case of Salomey Shorme Tetteh & Nii Amon vs Mary Korkor Hayford (substd by Stella Larbi & Comfort Decker) case3 Dotse JSC as he then was stated as follows on the issue of identity of the land in dispute:

“The position of the law, following from Fofie vs Wusu [1992-93] GBR 877 is that it is the Plaintiff who bears the burden of establishing the identity of the land she is laying claim to. Failure to prove this identify is fatal to a claim for declaration of title. In the above case, the Court of Appeal, Coram, Lamptey, Adjabeng and Brobbey JJA (as they were then) speaking with one voice through Lamptey JA held as follows: “To succeed in an action for a declaration of title to land a party must adduce evidence to prove and establish the identity of the land in respect of which he claimed a declaration of title. On the evidence the plaintiff failed to prove the identity of the land claimed.” See also:

i. Kwabena v Atuahene [1981]GLR 136

ii. Anane v Donkor [1965] GLR SC and

iii. Bedu v Agbi [1972] 2 GLR 238, CA”

It is generally understood that a court is not bound by the evidence given by an expert such as the Surveyor, in this case. See case of Sasu v White Cross Insurance Co. Ltd [1960] GLR 4 and Darbah & another v Ampah [1989-90] 1 GLR 598 (CA) at 606 where Wuaku JA (as he then was) speaking for the court also reiterated the point that a trial Judge need not accept evidence given by an expert. But the law is equally clear that a trial court must give good reasons why expert evidence is to be rejected.

 

Let us examine whether the Plaintiffs discharged this basic requirement of the identity of the land they claim satisfactorily from the evidence on record. In seeking to establish the identity of the land in dispute, PW1 traced her title to the land to 1969 when her deceased father acquired the land in dispute from G. Aggrey Fynn. PW1 tendered in evidence Exhibit B the lease evidencing the transaction between the deceased and Godwin Aggrey-Fynn. It is the evidence of PW1 that the deceased registered the land at the Deed Registry office, the Lands Department at that time, with reference number AC6819A/1969. The transaction was concurred by the Lands Commission as LS No. 530/68 and LS No. GSL 1232/1969.

Exhibit C is a search result from Lands Commission dated 14th June 2017. Attached to it is the site plan attached to Exhibit B. From the Plaintiffs Exhibit B the registered site plan was only one. Exhibit C confirms the judgment dated 01/02/1963 in favour of Gbawe Kwatei Family. The transaction involving deceased grantor G. Aggrey Fynn is listed in Exhibit C.

Part of the recitals in Exhibit B is also captured in the search results. The question is, if the Plaintiffs’ site plan is the same as the land in dispute why was the transaction between the deceased and Godwin Aggrey Fynn not captured in the search results particularly when the indenture had also been registered at the Deeds Registry? The inference I draw is that the Plaintiffs land is different from the land in dispute.

The clear documentary proof contained in PW1’s Exhibit B and Exhibits CW1 and CW2 shows that the land in respect of which the plaintiffs sued, is outside the disputed area, the area that the Defendants are laying claim.

 

In Exhibit CW2 the Defendants site plan superimposed in the composite plan is the same area as the land in dispute.

That being the case, and since the initial allocation of the burden of proof is on the Plaintiffs before it will shift to the Defendants later, it is apparent that the Plaintiffs have failed to discharge this burden. Sections 10 and 14 of the Evidence Act, 1975 NRCD 323. See the following cases where the Supreme Court took pains to explain sections 10 and 14 of the Evidence Act, 1975 NRCD 323 referred to supra.

1. Dzaisu v Ghana Breweries Ltd [2007-2008] SCGLR 539, holding 1 at 546-547 on Section 14 of NRCD 323 per Sophia Adinyira JSC (as she then was) and

2. Ackah v Pergah Transport Ltd. [2010] SCGLR 728 holding 1 especially at 735-737 per Sophia Adinyira JSC on Section 10 of NRCD 323.

The Plaintiffs land it appears from the evidence before this Court lies at a place different from the land in dispute.

I find therefore that the Estate of the late Robert Kwesi Hayfron is not the legal and the beneficial owner of the land in dispute. I therefore resolve issue 1 against the Plaintiffs.

The dismissal of the Plaintiffs’ claim have ended the matter and left the Defendants in possession possibly until another challenger emerged. This is because the Defendants did not counterclaim.

The 2nd Defendant acquired title from the 1st Defendant. Therefore the next issue for determination is whether the Defendants have any legal interest in the disputed land. I shall proceed to resolve issue 2.

 

[7.2] Issue 2 - Whether or not the Defendant has any legal interest in the disputed land?

The Supreme Court in the case of Mondial Veneer (Gh.) Ltd. v. Amuah Gyebu XV (2011) SCGLR 466, laid down the nature of the evidence that a party who seeks declaration of title to land has to lead in order to get a ruling in that person’s favour. The Supreme Court speaking through Georgina Wood CJ (as she then was) noted at page 475 of the report as follows:

“In land litigation … the law requires the person asserting title and on whom the burden of persuasion falls … to prove the root of title, mode of acquisition and various acts of possession exercised over the subject matter of litigation. It is only where the party has succeeded in establishing these facts on a balance of probabilities that the party would be entitled to the claim.”

Whether the 1st Defendant acquired the land in dispute

In his evidence before the Court, the 1st Defendant generally repeated the averments in his amended statement of defence. He acquired two plots of land on 27th September 1996 from the Oblogo Family of Accra through its head and lawful representative Nii Oblogo Lamptey. The 1st Defendant tenders in evidence Exhibit 1 and 1a which is a lease dated 27th September 1996 between the Oblogo family and the 1st Defendant and plan of the land. The 1st Defendant testified that he took steps to register it with the Land title Registry and applied for building permit on 23rd December 1998 on Ga District Assembly-Amasaman, see Exhibit 3.

 

It is the further case of the 1st Defendant that in the year 1999 he constructed his dwelling house with a wall on a portion of the said land and had been in peaceful possession for over seventeen (17) years without any let or hindrance from the Plaintiffs and deceased knowing of his possession and occupation of that land. The 1st Defendant further stated that after 13 years of acquisition of the land he also paid again for the same land to the Gbawe Kwatei family for being the rightful owners of the land. They issued him with a new indenture on 7th September 2009 was tendered in evidence as Exhibit “4”. Exhibit 5 is a plan of the land bearing the 1st Defendant name dated 22nd December 2020 with the same grid marks as Exhibit CW2.

The 1st Defendant asserts that in the year 2014 he sold the remaining portion of the land (the disputed land) to the 2nd Defendant for Fifty Thousand Cedis (GH₵50,000.00) and that the disputed land does not belong to the Plaintiffs so their actions and reliefs should be refused.

There is evidence that the 1st Defendant applied to the Land Title Registry on 6th October 2009 for the registration of the land and was issued with an acknowledgement receipt commonly known as “yellow card” tendered in evidence as Exhibit 6. Exhibit 7 captures the publication on Saturday 14th May 2011 in the Spectator Newspaper and yet there is no record of objection filed by the Plaintiffs even though probate was granted to them in respect of the estate of the deceased on 31st March 2008.

The Supreme Court in the case of Salomey Shorme Tetteh & Nii Amon vs Mary Korkor Hayford (substd by Stella Larbi & Comfort Decker) case4 (supra) decided “There is an obligation on a grantor, or lessor or owner of land to ensure that any grant he purports to convey to any grantee, or lessee is guaranteed and that he will stand by to defend the interest so conveyed to any grantee or lessee…”

The 1st Defendant and his grantor accepted the challenge thrown to them by the Plaintiffs and set forth to establish it by DW1 testifying and tendering various documents including judgments obtained by the Gbawe Kwatei family. Interesting the Plaintiffs Exhibit C the search results show that the Gbawe Kwatei family registered Judgment with Suit No L 107/61 at the Lands Commission.

The 1st Defendant grantor testified as DW1 (Isaac Nii Laryea Quartey). Testifying per his adopted witness statement DW1 stated that he was a principal member of the Gbawe Kwatei Family and that the disputed land formed part of their larger family land in Gbawe, Accra about 9000 acres of land. It is the case of DW1 that his ancestors had since time immemorial, the Gbawe Kwatei Family occupied, possessed and exercised acts of ownership and control over the land. DW1 stated that “My lord there have also been series of judgments from the courts since the 1950s, which have also affirmed the Gbawe Kwatei Family’s ownership of the land. I hereby tender some in evidence as Exhibit 11 series. My Lord I must say, that even before the formal alienation of the land to the 1st Defendant sometime in 2009, he was already possessed of the land for so many years.”

Counsel for Plaintiff subjected DW1 to rigorous cross-examination and suggested that the judgments in Exhibit 11 series was not referable to the land in dispute but DW1 remained resolute in his answers that the Judgments were referable to the land in dispute. See extract of Plaintiffs’ Counsel cross-examination of DW1 on 13th July 2023 as follows:

 

“Q: Mr Isaac Nii Laryea Quartey, you have attached a number of judgements to your witness statement and mark them as exhibit 11 series.

A: That is correct

Q: These judgements has been attached to establish Gbawe Kwatei family ownership of the disputed land.

A: Exactly so.

Q: The first judgment is the judgment dated 1st February 1916 with Suit No.

L107/1961.

A: Exactly so My Lady.

Q: In that Judgment it was in respect of a land which is not the very land in dispute.

A: That is not correct. This is because before the judgment was granted, all the belonging to Gbawe Kwatei family was mentioned including the disputed land in the matter in this suit.

Q: Could you show to the court where the disputed land was mentioned in the judgment that you hold.

A: What I said was that the land belonging to Gbawe Kwartei family covers over 9000 acres and this very suit in respect of the disputed land was included and that was why that judgment was granted in our favour.

Q: Could you please show to the court what portion of the judgment spoke of the 9000 acres.

A: We have a judgment plan which indicated the portion that spoke of the 9000 acres.

Q: Indeed that judgment plan is not attached to the judgment, is it?

A: As we speak now that judgment plan is not attached to the judgment but if the court will allow we will bring it to court.

 

Q: And is not attached to the judgment because there is no judgment plan in existence.

A: That is not correct. We have a judgment plan which we can bring to the Court.

Q: I put it to you in view of this that this judgment that has been discussed about has nothing to do with the land in dispute.

A: That is not correct. It has something to do with the land in dispute. This is because all the judgment we had including the disputed land is

contained in the judgment.”

I have read Suit No. L215/2001 consolidated suits AL23/2003. The judgment refers to the Gbawe Kwatei Lands and its boundaries. The counterclaim of 4th Defendant Nii Adam Kwartei Quartey in Suit No. L215/2001 was upheld. In Suit No. L219/200 now AL2/2003 the claim of Plaintiff Nii Adam Kwatei was upheld against the 1st Defendant, 2nd Defendant and Co-Defendants.

On the issue of acquisition of the land in dispute there is evidence to support the 1st Defendant position that he lawfully acquired the land in dispute and that the land in dispute forms part of the Gbawe Kwatei lands.

Identity of the land claimed

In the case of Kwasi Bugya Acheampong vs Frank Osei Assibey case (supra) Sowah JA ( as she then was) held as follows: “It is settled law that proof of the identity of the land goes to the root of every case where declaration of title is sought. It becomes a key issue in this appeal where it is alleged that Plaintiff failed to identify the land he claimed”.

 

The position of the law following from Fofie vs Wusu [1992-93] GBR 877 is that it is the Plaintiff who bears the burden of establishing the identity of the land she is laying claim to. Failure to prove this identity is fatal to a claim for declaration of title. However, a Defendant who counterclaims has a burden similar to that of a plaintiff to prove the land in respect of which he is seeking a declaration of title.

As the records shows the site plan in Exhibit 1 was superimposed on the composite plan Exhibit CW2.

Exhibit CW1 and 2 as set out supra shows that the 1st Defendant land as shown from his site plan falls within the area in dispute.

Issue of possession

It is again not enough for a claimant, to establish acquisition and the identity of the land claimed. He must fulfil the last and third major task of proving that since the acquisition, he has been in possession or retained the right to possession.

Possession, according to the Black’s Law Dictionary (2009, 9th Ed. P 1281) is:

“The fact of having or holding property in one’s power; the exercise of dominion over property”... 2. The right under which one may exercise control over something to the exclusion of all other; the continuing exercise of a claim to the exclusive use of a material object...”

Actual possession is “physical occupancy or control over property”, and a right to possession, also called constructive possession, “is control or dominion over property without actual possession or custody of it”. See Black’s Law Dictionary (supra) 1282.

 

It is a requirement that the 1st Defendant herein must prove his possession, in addition to proving his acquisition and boundary, in order to succeed in a counterclaim.

Our law, as provided in the Evidence Act, 1975, (NRCD 323), section 48, consider possession and acts of ownership as proof that the person in possession owns the thing involved.

In Amankwa v Nsia [1994-95] 2 GBR 758 at 775, Abban JA (as he then was) citing the dictum of Lord Fitz Gerald in Danford v McAnnulty [1883] 8 App cases 456, House of Lords, held that “possession is nine points of the law and a Defendant who has no counterclaim, only has to plead that he is in possession...”

Halsbury’s Laws of England, (3rd Ed. Vol. 15P. 285, para 516), as well categorises possession as evidence of ownership. The many cases which elucidate the principle that a person in possession of land is presumed to be the owner includes: Summey v Yohuno [1962] 1GLR 160; Aidoo v Adjei [1976] 1GLR 431;Ababio v Kanga [1959] GLR 190; Majolagbe v Larbi [1959] GLR 190; Nyiklorkpo v Agbedetor [1987-88] 1GLR 165; Ago Sai & ors v Kpobi Tetteh Tsunu III SCGLR 762; Odonkor v Amatei [1992-93] GBR 59; Ricketts v Addo [1975] 2 GLR 158 and Perry v Clissold [1907] AC 73.

It is tempting to over emphasise the importance of possession as evidence of ownership. There are many kinds of possession, and mere long possession does not ripen into title. In Panyinlli v Anquadah [1947] 12 WACA 284 at 286, it was held:

“In this country where land may be in the occupation of persons who are not owners but who for generations may have right of occupation as licensees or customary tenants or under other conditions known to local custom, the reversion nonetheless being in the owner, it is essential that the nature and origin of the occupiers should be determined. Mere occupation even for long periods is not sufficient proof of ownership”.

The following cases: Yartey & Oko v Construction & Furniture West Africa Ltd & 2 Ors [1962] 1GRL 86, SC; Kuma v Kuma [1936] 5 WACA at Pp 8-9 and Birimpong v Barwuah [1991] 2 GLR 20 CA, held to the same effect. In Nartey v Mechanical Lloyd Assembly Plant [1987-88] 2 GLR 341 SC, Amua –Sekyi JSC, in a dissenting opinion which has gained much legal traction, elucidated the matter as follows:

“There seems to be a misunderstanding of the cases which decide that a party who is in possession of land is entitled to the protection of the courts against all these (sic) who cannot prove a better title. The cases show that it is not possession for a day or two, a week, a month, or even a year which suffices to bring the rule into operation. It is rather long, peaceful, undisturbed possession over a considerable period of time, long and peaceful enough to raise a presumption that the occupation of the land must have a lawful origin”.

Exhibit D shows a structure on the land in dispute. PW1 when cross- examined admitted that the 1st Defendant had been on the land since the 1990s.

This Court finds that the 1st Defendant has succeeded in establishing he has been in possession of the land in dispute. I resolve issue 2 in favour of 1st Defendant.

[6.3] Issue 3 - Whether or not the Defendants have trespassed on the disputed land?

 

According to law the Plaintiff by suing in trespass and claiming an injunction against further trespass had put his title in issue: see Kponuglo

v. Kodadja (1933) 2 WACA 24, PC followed in Nkyi XI v. Kuma (Bedu subst.) [1959] GLR 281, C.A.

The proper statement of the law is that “mere possession is sufficient to maintain an action for trespass against anyone who cannot prove a better title.” What the expression “one who cannot prove a better title” means is, “one who cannot avoid the effect of the Plaintiff’s possession by showing that notwithstanding the actual possession by the Plaintiff, he (the defendant) had a better right to the land” - per Denman, C.J., in Whittington v. Boxall ((1843) 12 L.J.Q.B. 318, 114 E.R. 1201 at 1203), cited with approval in England v. Palmer (14 W.A.C.A. 659).

Based on my resolution of issue 1, I find that the Defendants have not trespassed onto the land in dispute. I therefore resolve issue 3 against the Plaintiffs.

The resolution of the issue of Plaintiffs claim effectively resolves the case and I do not intend to deal with the issues of limitation, laches, and acquiescence. I find support in the decision of the Supreme Court in Mrs. Vicentia Mensah v. Numo Adjei Kwanko II, Civil Appeal No. J4/17/2016 (14th June 2017) where the Supreme Court speaking through Anin-Yeboah JSC (as he then was) noted at page 7 of the Judgment as follows:

“It must, however, be made clear that a court of law is not bound to consider every conceivable issue arising from the pleadings and the evidence if in its opinion few of the issues could legally dispose off the case in accordance with the law.”

 

[7]  Conclusion

From the totality of the evidence led, I hold that the Plaintiffs’ claim fails entirely and same is accordingly dismissed. Specifically, the reliefs i to vi are dismissed.

Cost of GH¢50,000.00 awarded in favour of the Defendants.