Abbey Rahman Wahab v Ben Bamfo

The Plaintiff, Abbey Rahman Wahab, is a businessman who lives at Abeka Lapaz, Accra, while the Defendant, Ben Tete Bamfo, is an architect who lives at Bawaleshie in Accra.

The facts of this case are that the Plaintiff and the Defendant acquired leases of substantially the same parcel of land located at Kokrobite in the Greater Accra Region, from a common grantor, the Nii Arde Nkpa Family of Plerno.

Before the Plaintiff executed his lease on the land in dispute on 3rd August 2003, the Defendant had already executed a lease in respect of the same parcel of land in February 2003 with the same grantor family.

The Plaintiff subsequently presented his document to the Lands Commission for stamping and registration and has since obtained a land title certificate on which he relies, in addition to other pieces of evidence, to establish his claim to the land in dispute.

In their pleadings, the parties recounted their modes of acquisition of the land in dispute, as well as acts of ownership that they had exercised over the said land until the instant dispute arose.

At the close of pleadings, the following issues were set down for determination during the trial:

Whether or not the Plaintiff acquired the land in dispute from the Nii Arde Nkpa Family of Plerno?

Whether or not the Nii Arde Nkpa Family of Plerno has granted the land in dispute to the Defendant?

Whether or not the Plaintiff has been in possession of the land and exercised acts of ownership over it since it was granted to him?

Whether or not the Defendant trespassed on the Plaintiff’s land?

In an action for declaration of title to land, the burden is on the Plaintiff to adduce evidence to prove his claim on a preponderance of probabilities. See: Adwubeng v Domfeh (1996–97) SCGLR 660.

The term “preponderance of probabilities” has been defined in section 12(2) of the Evidence Act, 1975 (NRCD 323) as:

“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.”

In the case of Ackah v Pergah Transport Ltd & Others (2010) SCGLR 728 at 736, the Supreme Court, speaking through Adinyira JSC, summed up the duty imposed on a party who bore the burden of proof and persuasion on an issue in the following manner:

“It is a basic principle of the law on evidence that a party who bears the burden of proof is to produce the required evidence of the facts in issue that has the quality of credibility short of which his claim may fail. The method of producing evidence is varied and it includes the testimonies of the party, material witnesses, admissible hearsay, documentary and things (often described as real evidence) without which a party might not succeed to establish the requisite degree of credibility concerning a fact in the mind of the Court or tribunal of fact such as a jury.”

In the instant case, the Defendants also filed a counterclaim. Therefore, both parties had a burden to adduce sufficient and credible evidence to prove their respective claims on a preponderance of probabilities. See: Nortey (No 2) v African Institute of Journalism and Communication & Others (2013–2014) SCGLR 703 at 724 and Jass Co Ltd & Another v Appau & Another (2009) SCGLR 265 at 271.

The Plaintiff’s testimony regarding his mode of acquisition of the land in dispute was that in January 2003, he acquired a vacant plot of land at Kokrobite measuring 0.366 acres from Nii Arde Nkpa V and Nii Ofei II of Kokrobite, heads of the Nii Arde Nkpa Family of Plerno.

Before acquiring the land, he carried out checks to ensure that he was acquiring the land from the right source. Having satisfied himself that the said family were the actual owners of the land, he paid a total of ten million cedis in two instalments as evidenced by his receipts, Exhibits ‘C’ and ‘D’.

Subsequently, he paid an additional amount of Five Thousand Ghana Cedis (GH¢5,000.00) to his grantor family when a new chief was installed, as shown in Exhibit ‘E’, which was dated 13th January 2012.

The Plaintiff further testified that he was given a lease dated 8th August 2003, which he submitted to the Lands Commission for stamping and registration. He stated that an advertisement was made in the Saturday, October 17 to Friday October 23, 2015 edition of the Spectator, as evidenced by Exhibit ‘F’, and that he was eventually issued with a land certificate (Exhibit ‘G’).

He claimed that after acquiring the land in dispute, he immediately went into possession and quietly enjoyed possession of same until 2016 when the Defendant erected pillars around it overnight. He claimed that on one occasion when he was sending gravels to his land, his vehicle broke down and the Defendant’s agent collected the gravels and used them.

He maintained that he had obtained a building permit and land certificate in respect of the land in dispute, which he tendered as Exhibits ‘H’ and ‘J’.

The Plaintiff also claimed that he conducted searches at the Lands Commission, the results of which he attached to his lease as Exhibits ‘A’ and ‘B’.

Exhibit ‘A’, which was dated 3rd July 2014, showed that the land in dispute fell within a larger area acquired under an Executive Instrument dated 10th May 1979 for an irrigation project, while Exhibit ‘B’, which was dated 5th October 2015, indicated that the site was not state land and that it fell within Nii Arde Nkpa Family land of Plerno, James Town.

Under cross-examination, the Plaintiff insisted that the Defendant erected pillars around the land in dispute in 2015 and not in 2003 as claimed by the Defendant. The Plaintiff claimed that when the Defendant erected the pillars, he reported the matter to Nii Ofei III.

As regards the propriety of his acquisition of a land certificate on the subject of litigation, the Plaintiff explained that he started the registration process in 2014; however, it was in 2016 that he eventually obtained his land certificate. He claimed that in 2014 the land had been released by Government to the family and therefore the Land Title Registry went ahead to register the land in his name.

When asked whether he erected pillars around the land in dispute when he acquired it, the Plaintiff stated that he deposited a heap of gravels on the land in dispute as a means of securing it.

Nii Ofei III, who described himself as the current chief of Kokrobite, testified on behalf of the Plaintiff. In his witness statement, he stated that the land in dispute had not been sold to the Defendant and therefore when the Plaintiff informed him that the Defendant had erected pillars around it, he warned the Defendant off the land.

He also denied the exercise of any acts of possession by the Defendant in relation to the land in dispute and stated that he was aware that the Plaintiff had since registered his interest in the land in dispute based on the documents that his family gave him.

Under cross-examination, Nii Offei III appeared to have contradicted himself when he stated that he was not among the parties who signed or witnessed the Plaintiff’s document.

Again, contrary to his evidence in his witness statement, he claimed that he did not warn the Defendant off the land in dispute but rather confronted the Plaintiff when he went onto the land to develop it. He claimed that the Plaintiff showed him his document and, realizing that the Plaintiff had a grant from his predecessor, Nii Offei II, he allowed him to continue to work on the land.

He maintained that he had not seen the Defendant’s document and therefore did not know whether it was given to him by Nii Offei II or not. He also stated that he had gone through all the customary rites to be installed as a chief but was waiting to be gazetted by Government.

The Plaintiff’s second witness, Baba Kassim, testified that the Plaintiff, who was his uncle, had asked him to be a caretaker of the land in dispute. He claimed that in 2016, when the Defendant trespassed onto the land, he lodged a complaint at the Kokrobite Police Station where the police asked both parties to produce their documents.

He further testified that earlier on in 2015, the Defendant had erected pillars around the land. He claimed that when he informed the Plaintiff about it, the Plaintiff reported the development to the chief, who asked the Plaintiff to remove the pillars from the land.

Under cross-examination, he maintained that he was asked by the Plaintiff to look after the land in dispute in 2003. He also claimed that the Plaintiff obtained his indenture on the land in dispute about a month after he had been issued with his receipt for payment of the purchase price.

The Defendant’s case, on the other hand, was that he acquired the land in dispute in February 2003 from Nii Arde Nkpa VI, Mantse of Plerno, and the late Nii Ofei II, Kokrobite chief, heads of the Nii Arde Nkpa Family of Plerno.

He tendered his indenture in evidence as Exhibit BTB, as well as a memorandum dated 24th October 2000 from the Nii Arde Nkpa Family to the surveyor to allocate two plots of land to him.

He also stated that he conducted investigations before acquiring the land in dispute and was satisfied that his grantors were the rightful owners of the land in dispute. He further stated that his investigations revealed that a section of his grantor’s land fell within the Weija irrigation project.

The Defendant further stated that after acquiring the land in dispute, he went into possession by depositing 400 pieces of blocks, two trips of sand, and two trips of gravels on the land, and by erecting 50 pieces of concrete pillars around its boundaries.

He also asked a friend, one Emmanuel Akpe, to keep an eye on the land, which he did by regularly employing someone to weed it.

He stated that he enjoyed quiet possession of the land in dispute until 2016 when the Plaintiff began his acts of trespass. He stated that he had done everything humanly possible to put a stop to the Plaintiff’s activities, including initiating an action against him at the District Court, Weija.

Under cross-examination, the Defendant insisted that he erected pillars around the land in dispute in 2003 immediately after he had acquired it.

The Defendant’s first witness, Nelson Nukunu, testified that he was the one who erected the corner pillars around the Defendant’s land and also informed the Defendant about the Plaintiff’s acts of trespass.

Under cross-examination, he maintained that he erected the pillars in 2003 and not in 2015. He also stated that he once met the Plaintiff when he was transporting gravels to the land in dispute and told him that the land belonged to the Defendant.

The Defendant’s second witness, Emmanuel Akpe, testified that he had once approached the Defendant to allow him to set up a block factory on a section of the land in dispute.

According to him, the Defendant granted his request but on condition that he filled the large hole at the back of the land. However, when he calculated the cost of filling the hole, he decided to site his block factory elsewhere.

He stated that he supplied the Defendant with the heap of sand and stones that were deposited on the land in dispute and that he gave the Defendant’s number to one Mr Appiah who has been weeding the land.

Further, he stated that he informed the Defendant when one Lt Col Bediako expressed interest in starting a restaurant business on the land in dispute. He stated that the Defendant agreed to the business idea but as soon as they started clearing the land, land guards came to destroy the pillars.

Under cross-examination, he insisted that the land belonged to the Defendant and that when the Plaintiff trespassed, he was the one who lodged a complaint at the Kokrobite Police Station.

When one compares the Plaintiff’s Exhibit ‘F’ with the Defendant’s Exhibit ‘BTB 1’, it is evident that both parties acquired the land in dispute from the same family, the Nii Arde Nkpa Family of Plerno. However, the Defendant’s document preceded that of the Plaintiff by at least six months.

A critical look at the two documents shows that the parties who acted as heads of the Nii Arde Nkpa Family were not the same in respect of the two transactions. In the case of the Defendant, the heads of family were Nii Offei II and Nii Arde Nkpa VI, whereas in the case of the Plaintiff, the heads of family were Nii Offei II and Asafoatse Emmanuel Ayitey Tagoe.

It is interesting to note that Asafoatse Emmanuel Ayitey Tagoe witnessed the signature of Nii Offei II in the Defendant’s document which was executed in February 2003. By August 2003, he was signing as a co-head of the same family as per the Plaintiff’s document.

It seems curious that a party who witnessed the signature of the head of family on a land document in February 2003 would be signing a document from the same family as a co-head within such a short span of time.

The Plaintiff also tendered in evidence Exhibit ‘C’, a receipt dated 3rd January 2003 as evidence of the first instalment payment he made in respect of the land in dispute.

The effect of this receipt, I believe, was to demonstrate that he had an equitable interest in the land in dispute (by virtue of having made part payment for same) that preceded the date on which the Defendant executed his document in relation to the said land.

An examination of Exhibit ‘C’ showed there was no description of the land purchased and therefore one could not pin it down to the subject matter of this suit. It is significant to note that the Plaintiff’s witness, Kassim Baba, admitted under cross-examination that the land in dispute was not the only piece of land that the Plaintiff had acquired in Kokrobite.

It would therefore be unsafe to rely on Exhibit ‘C’ as conclusive proof of Plaintiff’s prior equitable interest in the land in dispute.

Again, it is significant to note that, in his witness statement, the Plaintiff stated that the Nii Arde Nkpa Family made him pay an additional amount of Five Thousand Ghana Cedis (GH¢5,000.00) as development levy.

However, under cross-examination, he stated that he was annoyed when Nii Offei III asked him to pay Five Thousand Ghana Cedis (GH¢5,000.00) because, To quote his words; “why do I have to pay for a land twice and my son advised me that because he is a new chief that is why he said I should bring all the two plots of money (sic) again.”

This statement implies that at the time the Plaintiff paid Five Thousand Ghana Cedis (GH¢5,000.00) to the Nii Arde Nkpa Family in 2012, his understanding was that he was being made to pay for the same piece of land twice.

If the Plaintiff was made to pay as much as Five Thousand Ghana Cedis (GH¢5,000.00) in 2012 for the same piece of land, then PW1’s assertion that he allowed the Plaintiff to continue to develop the land when he saw that he held a document from his predecessor cannot be accurate.

The question one would ask then is; what was the payment of Five Thousand Ghana Cedis (GH¢5,000.00) made for?

In paragraph 4 of his witness statement, PW1 stated categorically as follows; “I maintain that we, the Mantse of Plerno and the chief of Kokrobite and the principal elders did not sell this particular piece of land to the Defendant”. Emphasis mine.

He further went on to say in paragraph (6) that; “we gave the Plaintiff the necessary documents to cover the land, which I have been made aware he has duly registered”.

He spoke as someone who was involved personally in the sale of the land to the Plaintiff and who, along with others, presumably the elders, gave the Plaintiff documents on the land in dispute.

Yet under cross-examination, PW1 denied giving any document to the Plaintiff or being involved in the sale of the land to him. Indeed, if PW1 had given any document to the Plaintiff, it could not have been the one the Plaintiff relied on in this suit because the said document, Exhibit ‘F’, was executed in 2003 and at that time, Nii Offei III’s predecessor was in office.

This Court is therefore of the view that PW1 was economical with the truth when he stated that he allowed the Plaintiff to continue to develop the land because he had a grant from his predecessor.

It can be inferred from the totality of the evidence adduced by the Plaintiff and PW1 that PW1 took money from the Plaintiff with the intention of either selling or re-selling the land in dispute to him. He did this totally oblivious of the fact that the Defendant also had a prior grant from his family.

Indeed, he admitted under cross-examination that he had not seen the Defendant’s document and therefore he could not tell whether the Defendant also obtained his grant from his family.

I therefore find, as regards the issue of acquisition of the land in dispute, that the Defendant obtained his grant from the Nii Arde Nkpa Family before the Plaintiff obtained his grant.

By the nemo dat quod non habet principle, the Nii Arde Nkpa Family, having already divested itself of its interest in the land in dispute to the Defendant, had nothing left to give to the Plaintiff.

Therefore, the Plaintiff’s document did not pass any title in the land in dispute to him.

See Brown v Quashigah (2003–2004) SCGLR 930 at 934, where it was held in Holding 5 of the Head Notes per Kludze JSC that:

“the document the plaintiff registered as a lease was a nullity as it passed to him nothing. A fortiori, the land certificate issued to the plaintiff on the basis of that registered lease was also of no effect. On this ground alone the land certificate may be cancelled as both it and the lease on which it was based were of no legal effect. The purported lease told a lie of itself and that lie tainted and invalidated the resultant land certificate issued to the plaintiff. There was no interest to be guaranteed by the land certificate under the Land Title Registration Law 1986 …”

So it is in the instant suit. The certificate held by the Plaintiff guaranteed him no title in the land in dispute as he acquired none from his grantors on the date of acquisition of his lease.

On the issue of which party exercised acts of possession over the land in dispute, the Plaintiff claimed that he heaped gravels on the land after he acquired it as a means of securing the land and also asked one Baba Kassim to look after the land.

The said Baba Kassim also testified that he started looking after the Plaintiff’s land in 2003 and that it was in 2016 that the Defendant first interfered with the land.

The Defendant, on the other hand, stated that he erected corner pillars around the land immediately after he acquired it. He called as his first witness, Nelson Nukunu, who testified positively in paragraph 4 of his witness statement that “I was the one who erected the concrete pillars around his plots of land”.

Under cross-examination, he stated that he erected the pillars sometime in 2003 but could not remember the exact date.

When questioned about his testimony that he saw the Plaintiff carrying gravels to the land in dispute and informed him that the land belonged to the Defendant, he insisted that he did meet the Plaintiff.

The Defendant’s second witness, Emmanuel Akpe Kwasi, also displayed an intimate knowledge of the land in dispute when he testified that he had once approached the Defendant for permission to set up his block factory on a section of the land in dispute.

He stated that the Defendant obliged him on condition that he should fill up the hole at the back of the land. But when he did the calculations, he decided to set up the block factory elsewhere.

He also testified that he supplied the Defendant with the heap of sand and stones that was deposited on the land because he operated a block factory in the vicinity.

Again, he testified that he gave the contact number of one Mr Appiah to the Defendant and that the said Mr Appiah had been clearing the land until the Plaintiff began to interfere with the land.

When one compares the evidence of the Defendant’s witnesses as regards the details of actions they took to protect the Defendant’s land, the evidence of the Plaintiff’s caretaker, Baba Kassim, appears to be rather shallow.

He did not testify as to what steps he took to protect the Plaintiff’s land, except in relation to the police case, which occurred in 2016.

This suggests that the Plaintiff’s relationship with the land in dispute was more recent in time than he wanted the Court to believe, and I so find.

Again, the Plaintiff admitted that he caused the destruction of the Defendant’s pillars on the land in dispute and that the said pillars were erected on the land in 2015.

But the mere presence of boundary pillars on the land was an indication that someone else had an interest in that land. Therefore, it was the duty of the Plaintiff to find out the nature of that interest and to challenge it by lawful means, if need be.

Rather, he took the law into his own hands when he destroyed the Defendant’s pillars with the support of PW1 who had taken money from him.

I therefore find that the evidence of the Defendant regarding acts of ownership that he exercised in relation to the land in dispute from the time of acquisition until the instant dispute arose was stronger and more probable than that offered by the Plaintiff on the same issue.

Upon considering the evidence adduced by both parties in its totality, this Court is of the view that the Defendant has established a better claim to the land in dispute in terms of the priority of his grant and in terms of adducing convincing evidence as to acts of ownership that he exercised over the land in dispute.

The question then is: what is the effect of the Plaintiff’s land certificate?

There is no evidence as to the date on which the Plaintiff lodged his document at the Land Title Registry for registration. However, the land certificate was issued to him on 28th October 2016.

It is significant to note that the Plaintiff commenced the instant action against the Defendant on 9th August 2016.

In his statement of claim, he indicated at paragraph 7 that after he was issued with the indenture, he submitted it to the Lands Commission for stamping and in accordance with the process for registration, an advertisement was placed in the Spectator newspaper in 2015.

The Plaintiff was therefore in the process of registering his interest in the land in dispute when he commenced the instant action against the Defendant for declaration of title to the land in dispute.

The fact that he obtained the land certificate while this case was pending did not derogate from the Court’s duty to make a determination of the rightful owner of the land in dispute based on the facts before it.

Clearly, the Land Title Registry was unaware of the fact that there was litigation over the land in dispute when they issued the land certificate to the Plaintiff. Had they been aware of the instant litigation, they would have suspended the registration process until the Court had made a final determination of the rightful owner of the land in dispute.

As it turns out, the Plaintiff has registered a non-existent interest in the land in dispute and therefore his land title certificate is of no legal effect. See Brown v Quashigah supra.

In view of this judgment, I order that pursuant to section 122 of the Land Title Registration Act, 1986 (PNDCL 152), the Lands Registrar is to ensure that the land certificate issued to the Plaintiff covering the land in dispute, in respect of which he has been adjudged to have no interest whatsoever, is cancelled.

In view of the destruction of the Defendant’s pillars by the Plaintiff, damages of Three Thousand Ghana Cedis (GH¢3,000.00) is awarded to the Defendant against the Plaintiff.

The Defendant is entitled to recover possession of the land in dispute from the Plaintiff.

Further, the Plaintiff is perpetually restrained from interfering with the Defendant’s interest in the land in dispute.

Having regard to the length of the trial, the fact that the Defendant called witnesses and engaged counsel to represent him, costs of Six Thousand Ghana Cedis (GH¢6,000.00) will be awarded against the Plaintiff in favour of the Defendant.