Beke Investment Limited v John Kodie & 2 Ors

Plaintiff’s case

By an amended writ of summons issued on 21 st December 2018, the plaintiff claimed the following reliefs against the defendants:

i. An order of perpetual injunction restraining the defendants John Kodie, Michael Mensah Kodie and Banner of Grace Ministries by themselves, their assigns, agents, privies whomsoever or otherwise from dealing or interfering with the plaintiff’s possession and/ or control of the said parcels of land as described in paragraph 4 of the statement of claim. (The land was described in paragraph 4 of the statement of claim as all that piece or parcel of land situate and lying at Dawhenya in the Dangbe West District of the Greater Accra Region and bounded on the North-West by the Lessor’s land measuring 100 feet more or less, on the North-East by the Lessor’s land measuring 240 feet more or less, on the South-East by an existing road measuring 110 feet more or less and on the South-West by the Lessor’s land measuring 200 feet more or less.)

ii. An order for the 3rd defendant Banner of Grace Ministries to demolish the unauthorized footing on the said parcels of land, clear the debris and free the said parcels of land of all encumbrances.

iii. Nominal damages against the 3rd defendant for trespass.

iv. Costs including legal fees.

It is the plaintiff’s case that in January 2005, it acquired the land in dispute through its agent Alphonse Yao Dom from the Kodie family acting through one Samuel Martey Kodie. The 1 st defendant John Kodie witnessed the jurat and deposed to the Oath of Proof covering the documentation. After acquiring the property, it constructed a dwarf wall around it in order to secure it. It then put a caretaker, one Wofa Yaw, on the land to ward off trespassers.

The plaintiff asserts that it had information that sometime around 2010, the 1 st defendant brought agents of the 3rd defendant onto the land and threatened the caretaker to vacate the land. This harassment continued for some time. As a result, the said caretaker, out of fear for his life, abandoned his duties and vacated the land. This then allowed the 3 rd defendant to come onto the land and commenced construction on the land. The plaintiff made a report to the Tema District Command of the Ghana Police Service and their intervention temporarily halted the defendants’ trespass on the land.

The plaintiff asserts that the defendants resumed their acts of trespass in the early part of the year 2018 and a report was made to the Dawhenya Police but the 1 st defendant could not produce any documents of title covering the land. A later search that was made by the plaintiff revealed that the land in dispute had been sub-leased to the 3 rd defendant by the 2nd defendant sometime in August 2017 after the demise of Samuel Martey Kodie, the plaintiff’s grantor and also the father of the 1st and 2nd defendants. The plaintiff therefore asserts that it is only the intervention of the court that will restrain the defendants from their activities hence the present action.

1st and 2nd defendants defence

In their joint statement of defence, the 1st and 2nd defendants denied the plaintiff’s assertions. They asserted that the land in dispute was sold by the said Samuel Martey Kodie to one Rosina Fiahagbe in the year 2002 and she registered the land in the names of her children Freda and Frances Fiahagbe. She exercised possession over the land and constructed a fence wall around the land. They further asserted that the said Madam Rosina Fiahagbe surrendered her interest in the land back to the Kodie family sometime in the year 2015 and the Kodie family resold the land to the 3rd defendant in the same year. They assert that the land had never been in the possession of the plaintiff as at all material times, it had been in the possession of Madam Rosina Fiahagbe.

They further assert that the 1st defendant’s signature on the plaintiff’s purported lease is a forgery and this invalidates the lease. The 1 st defendant denied harassing the plaintiff’s agents on the land but stated that he only went onto the land to inform agents of the plaintiff that the land had already been sold to Madam Rosina Fiahagbe. The 1 st defendant further asserted that he does not lay any claim to the land as his deceased father had already divested the land to Madam Rosina Fiahagbe and as such he could not have any documents covering the land. The 1st and 2nd defendants therefore invited the court to dismiss the plaintiff’s claim.

3rd defendant’s defence

The 3rd defendant also denied the plaintiff’s claim and stated that it is the owner of the land in dispute by virtue of a sub-lease made in August 2017 which has been duly registered and a land title certificate issued in favour of the 3rd defendant. After the sub-lease, they took physical possession of the land and commenced the construction of a church building on the land which was up to the 2nd floor level at the time of the institution of the action.

They assert that prior to acquiring the land from the 2 nd defendant, they conducted a search which revealed that the land was held in the names of Freda and Frances Fiahagbe. Their further enquiries revealed that the land had been surrendered to the 2 nd defendant and that is why the 3rd defendant subleased the land from the 2nd defendant. They further assert that no adverse claim was brought to their attention and it was only when they had reached an advanced stage in their development that the plaintiff surfaced to lay claim to the land.

They further asserted that the first time they went onto the land was in 2014 and not in 2010 as the plaintiff alleged and they thus could not have been reported to the police in 2010. They also stated that when they went onto the land in 2014, it was fully walled and it was not a dwarf wall as is being claimed by the plaintiff. Their enquiries revealed that the wall was constructed by Rosina Fiahagbe who had registered the land in the name of her children being Freda and Frances Fiahagbe.

The 3rd defendant admits a later report to the Dawhenya Police by the plaintiff but they state that when the police sighted their documents covering the land, they realized that the 3 rd defendant had title over the land in dispute and the police thus dropped all charges against them. The 3rd defendant therefore averred that it has a legitimate title over the land in dispute.

 

They further relied on the Land Development (Protection of Purchasers) Act, 1960 (Act 2) as a defence to the plaintiff’s action.

Plaintiff’s reply

In its reply to the defence of the defendants, the plaintiff joined issue with the defendants and the plaintiff challenged the supposed surrender from Madam Rosina Fiahagbe to the 2 nd defendant. They further asserted that the 2 nd defendant did not have any leasehold interest in the land in dispute in order to create a valid sub-lease in favour of the 3 rd defendant. They also stated that the 1st defendant collected and signed for various sums of money from the plaintiff towards the payment for the land in dispute.

Issues for trial

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

i. Whether or not Samuel Martey Kodie (deceased), a relative of the 1 st and 2nd defendants conveyed leasehold lands, the subject matter of the instant suit, indexed AR/4010 B/2005 to the plaintiff on the 4 th day of January 2005.

ii. Whether or not the 1st defendant being a family member witnessed the jurat, deposed to the oath of proof of the said lease to the plaintiff and collected money from the plaintiff’s representative to cover payments for the said parcels of land.

iii. Whether or not the 2nd defendant has any legal leasehold interest in the disputed parcels of land to grant a sub-lease to the 3 rd defendant, the Banner of Grace Ministries.

iv. Whether or not the 1st defendant’s signature on the plaintiff’s lease is a forgery and invalidates the lease.

v. Whether or not the plaintiff is entitled to its claim.

vi. Whether or not the 3rd defendant has trespassed on plaintiff’s land.

vii. Whether or not the land in dispute was sold to Rosina Fiahagbe in 2002.

viii. Whether or not Rosina Fiahagbe surrendered her interest to the Kodie Family in 2015.

ix. Any other issues arising out of the pleadings.

Though in the pleadings of the parties the defendants did not raise any issue about the plaintiff being given a different land from the land in dispute, during cross-examination of the 1st defendant, he stated that the plaintiff must have been given a different land by his brother the late D. T. Kodie and certainly not the land in dispute. This then raises the issue as to whether the land that was supposedly granted to the plaintiff by the late Samuel Martey Kodie is the same as the land in dispute in this suit . This issue will therefore be treated under the omnibus issue – any other issue arising out of the pleadings. Furthermore, the defendant raised a defence under the Land Development (Protection of Purchasers) Act, 1960 (Act 2) and this will also be dealt with under the omnibus issue.

Burden of Proof

It is settled under our jurisprudence that a party who asserts assumes the burden of proving same. The burden of producing evidence as well as the burden of persuasion is cast on such a party and the standard of proof required to discharge the burden of persuasion in civil matters is one of “preponderance of the probabilities”. Sections 12 (1) and (2) and 11(4) of the Evidence Act, 1975 (NRCD 323) are the statutory provisions that deal with the burden of proof and the standard of proof.

These statutory provisions have been the subject of discussion in a plethora of decisions in our courts. Some of the cases on this point are Takoradi Flour Mills v. Samir Faris [2005- 2006] SCGLR 882, where the Supreme Court per Ansah JSC exhaustively dealt with the burden of proof at pages 896-898 of the report and In re Ashalley Botwe Lands; Adjetey Agbosu & Ors. v. Kotey & Ors. [2003-2004] SCGLR 420, amongst others.

It is also a duty of the court to assess all the evidence on record in order to determine in whose favour the balance of probabilities should lie. This duty has been explained in the case of In re Presidential Election Petition (No. 4) Akuffo-Addo & Ors. Vs. Mahama & Ors. [2013] SCGLR (Special Edition) 73, where the Supreme Court held at page 322 of the report as follows:

“Our understanding of the rules in the Evidence Decree, 1975 on the burden of proof is that in assessing the balance of probabilities, all the evidence, be it that of the plaintiff, or the defendant, must be considered and the party in whose favour the balance tilts is the person whose case is the more probable of the rival versions and is deserving of a favourable verdict.”

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 C.J. 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.” [Emphasis mine].

Similarly in the case of Mrs. Vincentia Mensah (substituted by Beatrice Tsotso Adjetey)

v. Numo Adjei Kwanko II; Civil Appeal No. J4/17/2016 [2017] GHASC 22 (14 th June 2017), the Supreme Court speaking through Anin-Yeboah JSC (as he then was) held as follows:

“In land suits in which title is in issue, the party claiming title must always plead and prove his root of title to enable him succeed.”

Summary of evidence

The plaintiff testified through Ambose Kwame Awity and they called two witnesses namely Alphonse Yao Dom (PW1) and John Buabeng aka Wofa Yaw (PW2). They tendered into evidence the following exhibits:

i. Exhibit A – Lease dated 4th January, 2005 between Samuel Martey Kodie of the one part and Beke Investment Limited of the other part.

ii. Exhibit B – Receipt dated 25th February 2005 from Samuel Martey Kodie to Beke Investment Limited.

iii. Exhibit C – Receipt dated 29th April 2005 from Daniel Tetteh Kodie to Beke Investment Limited.

iv. Exhibit D – Receipt dated 15th April 2005 from John Kodie to Beke Investment Limited.

v. Exhibit E – Receipt dated 3rd August 2005 from John Kodie to Beke Investment Limited.

vi. Exhibit F – Receipt dated 19th September 2005 from John Kodie to Beke Investment Limited.

vii. Exhibit G – Email dated 29th August 2007 from Alphonse Yao Dom to beke@intekom.co.za with attachments.

viii. Exhibit H – Email dated 6th September 2007 from Alphonse Yao Dom to abeke@intekom.co.za with attachments.

 

The 1st defendant testified for himself and on behalf of the 2 nd defendant and they did not call any witness. They tendered into evidence the following exhibits:

i. Exhibit 1 – Search report from the Survey and Mapping Division of the Lands Commission dated 9th August 2017 with a site plan attached.

ii. Exhibit 2 – Sub-Lease dated 1st October 2016 between Rosina Fiahagbe of the one part and Michael Mensah Kodie of the other part.

iii. Exhibit 3 – Land certificate No. TD 14890 dated 12 th April, 2018 in the name of Banner of Grace Ministries.

iv. Exhibit 4 – Lease dated 4th January 2005 between Samuel Martey Kodie of the one part and Beke Investment Limited of the other part.

The 3rd defendant testified through Freeman Kove and they did not call any witness. They tendered into evidence the following exhibits:

i. Exhibit 5 – Land certificate No. TD 14890 dated 12 th April 2018 in the name of Banner of Grace Ministries.

ii. Exhibit 5A – Sub-Lease dated 11th August 2017 between Michael Mensah Kodie, head and lawful representative of Kodie family of Dawhenya, of the one part and Banner of Grace Ministries of the other part.

iii. Exhibit 5B – Letter dated 24th July 2018 from the Office of the Administrator of Stool lands to Banner of Grace Ministries with the subject “Payment of Ground rent.”

iv. Exhibit 6 series (6, 6A to 6C) – Pictures of some activities on the land in dispute.

v. Exhibit 7 – Search report from the Survey and Mapping Division of the Lands Commission dated 7th August 2017.

vi. Exhibit 8 – Motion for Injunction filed by the plaintiff on 26 th April 2019 in respect of this suit together with attachments.

vii. Exhibit 8A – Lease dated 4th January 2005 between Samuel Martey Kodie of the one part and Beke Investment Limited of the other part.

viii. Exhibits 8B, 8C and 8D – Series of receipts signed by John Kodie in respect of some amounts received from Beke Investment Limited.

ix. Exhibits 8E and 8E1 – Pictures of some activities on the land in dispute.

 

I will proceed to address the issues as set down for trial. I will firstly deal with part of the omnibus issue under which the issue of the identity of the land in dispute falls.

Issue 10 – Any other issues arising out of the pleadings:

(a) Whether the land that was supposedly granted to the plaintiff by the late Samuel Martey Kodie is the same as the land in dispute in this suit.

The 1st defendant in his evidence before the court asserted that the land the plaintiff is claiming per its documents is different from the land in dispute. In support of its claim before the court, the plaintiff tendered into evidence as exhibit A, a lease dated 4 th January, 2005 between Samuel Martey Kodie of the one part and Beke Investment Limited of the other part. Attached to the lease is a site plan in the name of the plaintiff. Per the said site plan, the land that was granted to the plaintiff by the late Samuel Martey Kodie is located in between grid line 395000 to the north and grid line 396000 to the south and it touches and slightly crosses grid line 1281000 on the west and the land extends eastwards away from grid line 1281000.

The 1st defendant also tendered into evidence a search report from the Survey and Mapping Division of the Lands Commission which had attached to it a site plan as exhibit 1. The same document was tendered into evidence by the 3 rd defendant as exhibit 7. The said site plan is similar to the site plan attached to exhibit 2 which is the sub-lease between Rosina Fiahagbe and Michael Mensah Kodie. He also tendered into evidence the land certificate of the 3 rd defendant as exhibit 3 with a parcel plan attached. The same was also tendered into evidence by the 3rd defendant as exhibit 5.

Per all the site plans attached to exhibits 1, 2, 3, 5 and 7, the land that the defendants claim is the land in dispute in this suit lies in between grid line 395000 to the north and grid line 396000 to the south and it touches and slightly crosses grid line 1281000 on the west and the land extends eastwards away from grid line 1281000. The said land is the same land as the land in exhibit A which was supposedly granted to the plaintiff by Samuel Martey Kodie. Thus it cannot be true that the land that the plaintiff is claiming in this court is different from the land in dispute. They are one and the same land and I so hold.

Issue 1 – Whether or not Samuel Martey Kodie (deceased), a relative of the 1 st and 2nd defendants conveyed leasehold lands, the subject matter of the instant suit, indexed AR/4010 B/2005 to the plaintiff on the 4 th day of January 2005.

Exhibits A, 4 and 8A are one and the same document that was tendered by the parties in proof of different aspects of their respective cases. It is a lease made on 4 th January 2005 between Samuel Martey Kodie and Beke Investment Ltd. and as I have already indicated, it is in respect of the land in dispute. Per the evidence on record, the said Samuel Martey Kodie was the father of the 1st and 2nd defendants and the head of their family. The document was duly thumb printed by the said Samuel Martey Kodie and duly witnessed by one D. T. Kodie (who the 1 st defendant identified as his brother) and the 1 st defendant John Kodie.

When he was being cross-examined by counsel for the plaintiff, the 1 st defendant admitted that the thumb print on exhibit A attributed to his father is actually the thumb print of his late father Samuel Martey Kodie. He also admitted that he witnessed the transaction in exhibit A. Though he claimed he was not sure when the said transaction took place, he testified that he used to witness a lot of these indentures on behalf his brother D. T. Kodie and it was thus possible that this was one of the numerous transactions he witnessed on behalf of his brother. This is the nature of his evidence on this issue when being cross-examined by counsel for the plaintiff on 7th July 2020:

“Q: Look at Exhibit A of the plaintiff which is your own Exhibit 4 which conveyed the two and half parcels of land to the plaintiff.

A: This is the particular document I indicated earlier on that it was brought to our attention after the death of my brother for the very first time.

Q: Open that document to the last but three pages. Beneath the signed, sealed and delivered column we have a name D. T. Kodie.

A: The name D. T. Kodie on the document refers to my late brother Daniel Tetteh Kodie whom I have already told the court that it was after his death that this document was brought to our attention my Lord. …

Q: Beside the name D. T. Kodie, there is a signature. Have you seen that also? A: Yes my Lord.

Q: Is that D. T. Kodie’s signature? A: Yes my Lord.

Q: You have told the court earlier that your father was illiterate. Is that correct? A: That is so my Lord.

Q: That means that for a document like this, he will have to make a mark or thumbprint. Is that correct?

A: My Lord, the practice in my family is that whenever a land is being sold, my late father during his lifetime thumbprints in his capacity as the head of family and so in respect of Exhibit A, my late father thumb-printed for my brother Daniel Tetteh Kodie.

Q: By your own explanation, it means that after your late brother had read to your father before he thumb-printed. Is that correct?

 

A: My Lord, my late brother Daniel Tetteh Kodie had his own parcel of land and so when he informed my late father that he had granted his land and had also undertaken this transaction, my late father thumb-printed the document for him. …

Q: Under the name of D. T. Kodie is the name John Kodie. Is that your name? A: Yes my Lord.

Q: And it indicates that you were witness to D. T. Kodie explaining this document to your late father?

A: My Lord, I have already indicated that my late brother owned some parcels of land and so when he brought Exhibit A to me and upon seeing his name there, I witnessed for him and I have done same in other transactions for him.

Q: You will agree with the document that you witnessed the sale of the two and half plots of land to the plaintiff.

A: My Lord, I always witness transactions undertaken by my brother in respect of his parcels of land but with reference to the land in issue pending before this court, we have stated from day one that this particular land does not belong to my late brother and we have challenged same. …

Q: According to the receipt you are holding, an amount of five million old Ghana Cedis was collected by D. T. Kodie in respect of part payment for 0.50 acre or 20 hectare or parcels of land situated at Dawhenya on the Tema-Aflao road in the Dangbe West District of the Greater Accra Region. The piece of land is being leased for 99 years as per the indenture dated 4 th January 2005 and was sworn at the Registrar of Lands Commission Accra on the 17 th of January 2005. The document you are holding, does it say that?

A: Yes my Lord but that is why I said that the family will investigate the transaction and this is because the family identified so many issues with the document that the plaintiffs brought to us. But because it was my late brother D. T. Kodie who sold the land coupled with the fact that the document also had my late father’s thumbprint and also my signature as witnesses to the transaction, the family indicated so the plaintiffs that the family will show the plaintiffs the location of the D. T. Kodie’s parcels of land. The land that the plaintiffs are claiming in this court does not belong to D. T. Kodie and finally, Exhibit B was a transaction that took place between the plaintiffs and D. T. Kodie alone.” [Emphasis mine.]

It must be noted however that though he claimed he was witnessing on behalf of his brother, the evidence however shows that it was his father, the late Samuel Martey Kodie, who was the grantor and not his late brother D. T. Kodie. Exhibit A conveyed a ninety-nine year leasehold interest to the plaintiff commencing from 4 th January 2005. To all intents and purposes then, the 1st and 2nd defendants’ father Samuel Martey Kodie conveyed a leasehold interest over the land in dispute to the plaintiff on 4th January 2005 and I so hold. This holding is however subject to the resolution of the other issues with respect to the supposed forgery of the 1 st defendant’s signature on exhibit A.

Issue 2 – Whether or not the 1st defendant being a family member, witnessed the jurat, deposed to the oath of proof of the said lease to the plaintiff and collected money from the plaintiff’s representative to cover payments for the said parcels of land.

I have already dealt with the witnessing of the jurat in the previous issue and I will deal with the swearing of the oath of proof when dealing with issue 4. I will thus limit this issue to whether the 1st defendant collected money from the plaintiff’s representative to cover payments for the said parcels of land.

In an attempt to prove that the plaintiff paid the 1 st and 2nd defendant’s family for the land in dispute, the plaintiff tendered into evidence receipts of payment which were admitted in evidence as exhibits B, C, D, E and F. Exhibit E is a receipt dated 18 th February 2005 from Samuel Martey Kodie, the plaintiff’s grantor and the head of the Kodie family to the plaintiff. The said receipt acknowledges the payment of an amount of fifty five million cedis (GH¢5,500.00) from the plaintiff to the late Samuel Martey Kodie ‘ being part payment’ for land situate at Dawhenya. Exhibit B is a hand written receipt dated 29 th April 2005 from Daniel Tetteh Kodie to the plaintiff acknowledging the receipt of fifteen million cedis (GH¢1,500.00) from the plaintiff as ‘part payment of two and half plots of land ’ at Dawhenya.

Exhibit D is a receipt dated 15th April 2005 from John Kodie, the 1st defendant, to the plaintiff acknowledging the receipt of two million cedis (GH¢200.00) as ‘ part payment of two and half plots of land’ at Dawhenya. Exhibit E is a receipt dated 3 rd August 2005 from John Kodie, the 1 st defendant, to the plaintiff acknowledging the receipt of three million cedis (GH¢300.00) as ‘ part payment of two and half plots of land ’ at Dawhenya. Exhibit E is a receipt dated 19 th September 2005 from John Kodie, the 1st defendant, to the plaintiff acknowledging the receipt of ten million cedis (GH¢1,000.00) as ‘payment on account of two and half plots of land bought at Dawhenya’. It is interesting to note that the 3rd defendant also tendered exhibits D, E and F in evidence as exhibits 8B, 8C and 8D.

From exhibits B to F, the late Samuel Martey Kodie received part of the consideration paid by the plaintiff, the late Daniel Tetteh Kodie received part and the 1 st defendant John Kodie also received part of the consideration. The 1st defendant did not deny receiving the said amounts from the plaintiff but in his evidence under cross-examination he seemed to suggest that the first two payments of GH¢200 and GH¢300 were in respect of a different land and not the land in dispute and the third payment of GH¢1,000.00 was an appreciation that was shown by the plaintiff to the Kodie family after they accepted to grant the land to the plaintiff.

 

It has to be noted that the evidence on record has already established that the Kodie family dealt with the plaintiff in respect of the land in dispute and not in respect of any other land. This is the nature of his evidence on this issue when he was being cross-examined by counsel for the plaintiff on 7th July 2020:

“Q: Let us turn to Exhibit D and that one is dated 15 th April 2005 and it reads ‘I John Kodie have received an amount of two million old Ghana Cedis from Beke Investment Limited being part payment of two and half plots of land from Dawhenya.’ Is that correct?

A: After the death of my late brother, the plaintiffs came to the family and told the family that my late brother D. T. Kodie sold the land to them at a cost of seventy-five million old Ghana Cedis or GH¢7,500.00 and that the remaining amount due the family is five million old Ghana cedis or GH¢500.00. The plaintiffs promised to return with the outstanding amount but on the day they came and met the family, Mr. Dom paid an amount of two million old Ghana Cedis or GH¢200.00 to the family and a receipt was issued to the plaintiffs, my Lord.

Q: You told this honourable court that your late brother died in July 2005. Is that not so?

A: My Lord, I indicated that it was somewhere July 2005. It has been a long time.

Q: And this amount of money was paid to you on 15 th April 2005 when your late brother was alive.

A: My Lord, it is not true. I indicated that at the time the plaintiffs visited the family and paid the two million old Ghana Cedis or GH¢200.00 my late brother had not been buried. And it was in that same meeting that the plaintiffs brought the documents to the family to show that they had transacted business with my late brother. My Lord, in addition, my late brother never took ill. He went to work and we received news of his untimely death. So it is possible that we may have erred in stating the date but all of my testimony is true.

Q: As I said earlier, on the 24th April 2005, your late brother D. T. Kodie received fifteen million old Ghana Cedis from Beke Investment Limited after receiving the GH¢200.00. So you are not telling the court the truth.

A: My Lord, I have been honest with the court and as I said earlier on, it could be that we erred in the course of writing or stating the date but the truth is that we got to know of the plaintiffs after the death of my late brother. And although the two million old Ghana Cedis or GH¢200.00 did not come to me personally, I received same on behalf of the family because I witnessed the transaction for my late brother .

 

Q: Again, look at Exhibit E, on 3rd August 2005 and it reads ‘I John Kodie have received an amount of GH¢300.00 from Beke Investment Limited being part payment for two and half plots of land at Dawhenya.’

A: It is so my Lord and that is what I have already explained that the plaintiffs informed the family that there is an outstanding balance of GH¢500.00 to be paid to the family.

Q: For Exhibits D and E, you claim the balance is GH¢500.00 and they paid GH¢200.00 and GH¢300.00 but then on 19 th of September 2005, it says ‘received from Beke Investment Limited ten million old Ghana Cedis [that is GH¢1,000.00] being payment on account for two and half plots of land bought at Dawhenya’ and you signed as having received he money. Is that correct?

A: My Lord, it is so but after the burial and final funeral rites of my late brother, we met with the plaintiffs and an agreement was reached between both parties concerning the sale of the land. And so after the plaintiffs left, they came back somewhere in September to express appreciation to the family for accepting to grant the land to the plaintiffs and so a careful look on the exhibit reads ‘being payment on account of the land’ and not part payment or anything of that sort. And so it was merely an appreciation to the family.

Q: I put it to you that that payment covered part payment for the land and it is stated clearly on the document. There is no ambiguity about it.

A: My Lord I have stated the absolute truth in respect of Exhibit F. ” [Emphasis mine.]

The evidence of the 1st defendant on this issue is preposterous to say the least and it was quite evident that he was lying to the court with respect to the purpose for which he received the said monies. Whilst in one breath he is denying that the family had any transaction with the plaintiff, in another breath he is claiming that the plaintiff came to thank them when they accepted to grant the land to them. Furthermore he claimed that he received some of those monies on behalf of the family because his brother was deceased but when it was brought to his notice that the amount indicated on exhibit D was received by him before the death of his brother, his answer left much to be desired as already captured above.

The evidence on record therefore points to only one conclusion on this issue and that is that the 1st defendant collected money from the plaintiff’s representative to cover payments for the said parcels of land that was granted to the plaintiff by the late Samuel Martey Kodie even after the death of Daniel Tetteh Kodie.

Issue 7 – Whether or not the land in dispute was sold to Rosina Fiahagbe in 2002.

 

The defendants have asserted and have testified that the land in dispute was sold to one Rosina Fiahagbe in the year 2002 by the late Samuel Martey Kodie and as such he could not have validly transferred the land in dispute to the plaintiff in the year 2005. The defendants did not tender into evidence any document of transfer evidencing the said transaction to Madam Rosina Fiahagbe. They rather tendered into evidence a search report from the Survey and Mapping Division of the Lands Commission as exhibits 1 and 7.

Per exhibits 1 and 7, it is stated that the land in dispute ‘falls within a plotted activity for Freda & Frances Fiahagbe’. There is nowhere in the said exhibits that it is stated that the land in dispute belongs to Rosina Fiahagbe or it was sold to the said Rosina Fiahagbe. It only mentions a plotted activity for Freda and Frances Fiahagbe. The said Freda and Frances Fiahagbe were not called to testify so the court does not know their identity. There is also no positive evidence that they are related in any way to the said Rosina Fiahagbe.

In his evidence before the court, whilst the 1st defendant initially indicated that the land was sold to Rosina Fiahagbe and a document executed on her behalf, he later changed his story to the effect that the land, though sold to Rosina Fiahagbe, she instructed that the documents be made in the names of her children and it was done according to her instructions. This is the nature of his evidence on this issue when he was being cross-examined by counsel for the plaintiff on 13th July 2020:

“Q: In paragraph 3 of your witness statement, you claimed that one Rosina Fiahagbe registered the disputed lands in the names of her two daughters, Freda and Frances Fiahagbe. Unfortunately, there is no document to show that any transfer was made in respect of the disputed lands to those two individuals.

A: My Lord, the document was prepared for Madam Rosina Fiahagbe covering the land, but when we conducted the search, the results revealed that the land had been registered in the names of her two children.

Q: I again put it to you that the search result did not say that those two and half parcels of land had been transferred to Freda and Frances Fiahagbe.

A: My Lord, my late father sold the land to Rosina Fiahagbe and she registered the land in the names of her two children.

Q: Did you see that document you are testifying to that she registered the land in the name of her two children?

A: The document covering the land was prepared in the name of the two children of Rosina Fiahagbe and it was so because that was the instruction she gave us.

Q: Again, this is the first time I have heard you say that Rosina Fiahagbe bought the land in her children’s name. Is that correct?

 

A: The transaction in connection with the sale of the land was between Rosina Fiahagbe and my late father but she instructed that the document be prepared in her children’s name.

Q: You just told the court that Rosina Fiahagbe transferred the disputed land into the names of her two children. Is that correct?

A: My Lord, we dealt with Rosina Fiahagbe as the one who bought the land and we do not know the children. She only instructed that the documents should be prepared in their names.

Q: I put it to you that you are not telling the court the truth. A: My Lord, I am telling the truth.” [Emphasis mine.]

I find the testimony of the 1st defendant difficult to believe. I must however commend the 1 st defendant for one thing – he is a good story teller but most of his stories did not add up in this case. The introduction of Rosina Fiahagbe into the picture is a well-planned story by the defendants to attempt to make credible the grant of the land in dispute to the 3 rd defendant by the 2nd defendant and a discussion of some of the later issues will further expose the lies of the defendants especially the 1st and 2nd defendants.

In any case, the said search in the said exhibits is only an indication that there is a plotted activity for the said persons. It does not in any way confirm title. This is clearly indicated on the face of the exhibit in the following terms:

“This search report from the Survey & Mapping Division (SMD) does not in any way confer or confirm ownership of title to the land on the attached site plan shown edged pink. It may only indicate a stage in the land title registration process.” [Emphasis mine.]

As counsel for the plaintiff rightly pointed out, there are different divisions of the Lands Commission dealing with different aspects of land registration and for a more comprehensive search, it will be advisable to conduct searches in all the divisions in order to be sure about the status of a particular piece of land. Thus, usually searches at the Land Registry Division and the Public and Vested Lands Management Division of the Lands Commission may give a more accurate, though not conclusive, picture of the status of a particular land. Be that as it may, per the said exhibit, Rosina Fiahagbe is not known.

It is also of interest to note that while the site plan attached to exhibits 1 and 7 is a similar site plan to the one attached to exhibit A and exhibit 2, the name on the site plans in exhibits 1 and 7 is entirely different from any of the names that have been mentioned so far in this suit. The said name is Anthony Hood but neither the parties in this suit nor any of their supposed

 

grantors bear that name. This raises more issues with respect to the defendants’ defence before the court. While the defendants claim that the land in dispute was granted to Rosina Fiahagbe in 2002, their own search reveals that the land is in somebody else’s name being Freda and Frances Fiahagbe. Furthermore, the site plan that was used to conduct the said search is also in the name of a totally different person Anthony Hood.

Exhibit 2 being the sublease between Madam Rosina Fiahagbe and Michael Mensah Kodie supposedly recites the said grant to Madam Rosina Fiahagbe in the year 2002. By the said recital, the land was granted to Madam Rosina Fiahagbe on 16 th July 2002. The said recital is however an apology of a recital. Per the said recital, instead of Madam Rosina Fiahagbe being referred to as a lessee in the said grant, she was rather referred to as the lessor and Michael Mensah Kodie was referred to as the lessee.

If the land was really granted to Madam Rosina Fiahagbe by Samuel Martey Kodie in 2002, the recital should have stated so. The recital however refers to a supposed lease between Rosina Fiahagbe and Michael Mensah Kodie who, per the evidence on record, was not clothed with capacity to have granted that land. This is also inconsistent with the defendant’s story that it was rather Samuel Martey Kodie who granted the land to the said Rosina Fiahagbe.

From the analysis and the discussions above, it is more probable than not that the land in dispute was not sold to the said Madam Rosina Fiahagbe in the year 2002. If that is the case, then Madam Rosina Fiahagbe could not have surrendered any interest in the land in dispute to the Kodie family in 2015. There are however some further issues with the supposed surrender that I need to deal with under the next issue and I will so proceed.

Issue 8 – Whether or not Rosina Fiahagbe surrendered her interest to the Kodie family in 2015.

The fulcrum of the defendants’ defence has been a supposed grant to Rosina Fiahagbe in 2002 and a surrender of the grant to the Kodie family in 2015. This is captured in paragraphs 4 and 5 of the 1st and 2nd defendants’ amended statement of defence filed on 24 th June 2019 and paragraphs 8 and 11 of the 3rd defendant’s statement of defence filed on 25 th April 2019. In his witness statement filed on 8th October 2019 which was admitted as his evidence in chief on 7 th July 2020, the 1st defendant tendered a copy of the supposed ‘Deed of Surrender’ as exhibit 2. It was referred to in paragraph 4 of the witness statement as a ‘lease re-conveying the land by Madam Fiahagbe to the Kodie family’.

It appears that counsel for the 1st and 2nd defendants realized that the said document could not stand as a Deed of Surrender so they had to re-strategise and call it by a different name – a re-conveyance. Per the authorities, a surrender arises when a lessee of land yields up the residue of the leasehold interest to the lessor. When that happens, the leasehold interest and

 

the reversion thereby merges in the lessor and the lease is extinguished. Osborn’s Concise

Law Dictionary (London: Sweet & Maxwell, 1993) 8th Ed., Rutherford, L. and Bone, S. Editors., defines surrender in the following terms:

“The yielding up of a limited estate in or lease of land, so that it merges in the remainder or reversion. Surrender may be by deed, or by operation of law ….”

For there to be a valid surrender therefore, there must be a valid subsisting lease. The lessee, for one reason or another, then decides that he is yielding up the residue of the unexpired term of the lease back to the lessor. When this happens, it is said that the lease and the reversion have merged in the lessor and the lease is thus extinguished. The reversion is usually the freehold interest that was held by the lessor. When this happens, the lessor is at liberty to create a new lease in respect of the land which has been so surrendered.

The evidence that has been led so far has revealed that there was no grant in favour of the said Rosina Fiahagbe for her to have surrendered it back to the Kodie family through Michael Mensah Kodie. Even if there was such a valid lease, exhibit 2 which purports to have surrendered the property back to the Kodie family leaves much to be desired. Exhibit 2 is a supposed sublease between Rosina Fiahagbe and Michael Mensah Kodie. This means that per exhibit 2, Rosina Fiahagbe attempted subleasing the land in dispute to Michael Mensah Kodie.

A sublease only arises where a lessee of a property being a sub-lessor, transfers either the whole or a part of the property leased to a third party (sub-lessee) for a number of years

shorter than the number of years left on the sub-lessor’s original lease. Black’s Law Dictionary, 6th Ed. (1990) defines a sub-lease in the following terms:

“A lease executed by the lessee of land or premises to a third person, conveying the same interest which the lessee enjoys, but for a shorter term than that for which the lessee holds (as compared to assignment, where the lessee transfers the entire unexpired term of the leasehold to a third party).”

Thus, for there to be a valid sub-lease, there must firstly be a valid existing lease. Secondly, the lessee, being the sub-lessor, will transfer the property or part of the property to the sub-lessee for a term which is shorter than his term in the lease (usually referred to as the head lease). In the present case before me, what Rosina Fiahagbe sought to do through exhibit 2 (the sublease) was to re-convey (to borrow a word from counsel for the 1 st and 2nd defendants) the property back to Michael Mensah Kodie. A re-conveyance, with all due respect to counsel for the 1st and 2nd defendants, cannot be the subject of a sublease.

 

Furthermore, whenever there is a sublease, the reversion remains in the sub-lessor, in this case Rosina Fiahagbe. What it therefore means is that per exhibit 2, Michael Mensah Kodie was not the absolute owner of the land and he could not therefore have dealt with it as an absolute owner and any further assignment, subletting or parting with possession of the property, per clause 4 (d) of exhibit 2, should have been done with the prior consent in writing of Rosina Fiahagbe. This is totally contrary to a surrender where the property would have totally vested in Michael Mensah Kodie without any encumbrance.

Thus exhibit 2 is not, and could not have been, a valid Deed of Surrender from Rosina Fiahagbe to Michael Mensah Kodie. It can also not be a valid sub-lease because it has already been held that there is no evidence that the said Rosina Fiahagbe had a valid lease from Samuel Martey Kodie to enable her create a sub-lease out of the said lease. Furthermore, there is no duration indicated in exhibit 2 but it talks about a release. It must be noted that a sub-lease being a type of lease should be for a number of years and since there is no duration in exhibit 2, it cannot be a valid sublease. To that extent, exhibit 2 did not create any proprietary rights in favour of Michael Mensah Kodie.

It is interesting to note that despite this overwhelming evidence on record that there was no deed of surrender in favour of the 2nd defendant, the 1st defendant in his evidence before the court insisted that there was a supposed deed of surrender which was given to their lawyers. This is the nature of his evidence on this issue when he was being cross-examined by counsel for the plaintiff on 13th July 2020:

“Q: I am putting it to you that there is no surrender document before this court.

A: My Lord, the document concerning the surrendering of the land to the family is in the custody of my lawyer.

Q: I am putting it to you that Rosina Fiahagbe did not have any land to surrender to anybody.

A: My Lord, the documents brought by Rosina Fiahagbe is in the custody of my lawyer and the various searches that we conducted is in the custody of my lawyer.

Q: I put it to you that you concocted these stories to justify the illegal sale of the disputed lands to the 3rd defendant in this matter.

A: My Lord, it is not correct.”

The said deed of surrender was however not tendered in evidence to help the court in the determination of the issues between the parties. Even if there was such a deed of surrender, it would not have been effective because per the evidence on record, there was no lease in favour of Rosina Fiahagbe for her to have made a valid surrender to Michael Mensah Kodie.

 

Issue 3 – Whether or not the 2nd defendant has any legal leasehold interest in the disputed parcels of land to grant a sub-lease to the 3 rd defendant, the Banner of Grace Ministries.

With my holding above, it follows that Michael Mensah Kodie, the 2 nd defendant, did not have any valid interest in the property in dispute to have made a valid grant to the 3 rd defendant. I will however review the document that the 2 nd defendant made in favour of the 3rd defendant. The said document was admitted in evidence as exhibit 5A. It is a sub-lease between Michael Mensah Kodie, 2nd defendant, and Banner of Grace Ministries, 3 rd defendant.

If the story of the defendants with respect to the surrender is to be believed, then the reversion would have been vested in Michael Mensah Kodie and that reversion was not a leasehold interest but a freehold interest. As a freehold interest reversion, he then could have granted a leasehold interest to the 3rd defendant. He however purported to grant a sub-lease to the 3 rd defendant. A sub-lease should however be based on an existing lease. I have already held that exhibit 2, which the 2nd defendant was relying on did not create any rights in his favour. It is not a proper deed of surrender, neither did it grant any term of years to the 2 nd defendant as a sublease. As a result, the 2nd defendant could also not have purported to make any grant to the 3rd defendant by way of sub-lease as the 2nd defendant’s supposed tenure was indeterminate.

Exhibit 5A is a sublease between Michael Mensah Kodie as sub-lessor and Banner of Grace Ministries as sub-lessee and that is how the parties are described in the document. Thus any reference to the sub-lessor in exhibit 5A refers to Michael Mensah Kodie and any reference to the sub-lessee in exhibit 5A refers to Banner of Grace Ministries. There are no words of conveyance in exhibit 5A but recital 1 purports to double as the words of conveyance. It provides as follows:

“Under and by virtue of a lease stamped as No. LBV 2540/2008 and made between Michael Kodie (thereinafter described as ‘the Lessors’) of the one part and the Sub- Lessor herein Banner of Grace Ministry (thereinafter described as ‘the Lessees’) all that piece or parcel of land (hereinafter called ‘the Property) a portion of which is intended to be hereby demised/ sublet was leased unto the Sub-Lessors herein for the term of 80 years from the 11th day of August 2017 …”

Though the 2nd defendant Micheal Mensah Kodie was referred to in the commencement as the Sub-Lessor, the said recital also refers to the 3 rd defendant as the Sub-Lessor. However, the commencement part, being the operative part takes precedence over the recital and the definitions in the commencement part will therefore hold sway. In that vein, the said recital talks about the property being ‘leased unto the Sub-Lessors’ for a term of eighty years. It therefore appears that it was rather the 2 nd defendant who the property was being leased to for a term of eighty years and not the 3rd defendant.

The said recital also raises further issues. This is because it recites a supposed lease made between Michael Mensah Kodie and Banner of Grace Ministries which was stamped as LBV 2540/2008. This therefore means that there was already in existence a lease agreement between the 2nd defendant and the 3rd defendant which was stamped in the year 2008. Considering the date of the stamping, that lease was either made in 2008 or earlier, therefore implying that as at 2008, the 2nd defendant had already leased the land in dispute to the 3 rd defendant.

No such lease was however tendered into evidence. In any case, it is a mystery how the parties who had entered into a leasehold agreement on or before 2008 in respect of the land in dispute will in 2017 attempt to enter into a sub-lease agreement in respect of the same land. All these point to an orchestrated attempt by the defendants to perpetuate fraud on the plaintiffs. I do not hesitate to reach this conclusion because there is so much evidence on record that the defendants were not being candid with the court.

As an example, a careful comparison of exhibits 2 (the sub-lease between Rosina Fiahagbe and Michael Mensah Kodie) and exhibit 5A (the sub-lease between Michael Mensah Kodie and the 3rd defendant) will reveal some striking but worrying similarities . Both documents, though

they appear to be subleases are all really not subleases but rather apologies of subleases. It is also difficult to determine what instrument they really are. As an example, recital 1 of exhibit 2 states as follows:

“Whereas under and by virtue of a lease stamped as No. LBV2540/2008 and made (sic) Rosina Fiahagbe (therein described as ‘the Lessors’) of the one part and the Sub- Lessor herein Michael Mensah Kodie (thereinafter described as ‘the Lessees’) all that piece or parcel of land (hereinafter called ‘the Property) a portion of which is intended to be hereby demised/ sublet was leased unto the Sub-Lessors herein for the term of 99 years from the 16th day of July 2002 …”

Recital 1 of exhibit 5A also states as follows:

“Under and by virtue of a lease stamped as No. LBV 2540/2008 and made between Michael Kodie (thereinafter described as ‘the Lessors’) of the one part and the Sub- Lessor herein Banner of Grace Ministry (thereinafter described as ‘the Lessees’) all that piece or parcel of land (hereinafter called ‘the Property) a portion of which is intended to be hereby demised/ sublet was leased unto the Sub-Lessors herein for the term of 80 years from the 11th day of August 2017 …”

 

One will realise from these two recitals that they are essentially the same just that Rosina Fiahagbe is replaced by Michael Mensah Kodie in exhibit 5A and Banner of Grace Ministry replaces Michael Mensah Kodie in exhibit 5A. The dates in both exhibits also differ. What is curious however is that all of them refer to a lease stamped as LBV 2540/2008. The said stamping number presumes that the lease being referred to is the same lease. However, per recital 1 in exhibit 2, the parties to the said lease registered as LBV 2540/2008 are Rosina Fiahagbe as Lessor and Michael Mensah Kodie as Lessee and per exhibit 5A, the parties in the said same lease registered as LBV 2540/2008 are Micheal Mensah Kodie as Lessor and Banner of Grace Ministry as Lessee.

All these point to a clear attempt by the defendants to manufacture documents in order to annex the land in dispute and the court should not lend its support to such blatant fraudulent actions by the defendants. From the above discussions, I hold that the 2 nd defendant did not have any legal leasehold interest in the disputed parcels of land to grant a sub-lease to the 3 rd defendant, the Banner of Grace Ministries.

Issue 4 – Whether or not the 1st defendant’s signature on the plaintiff’s lease is a forgery and invalidates the lease.

As I have indicated already, all the parties tendered the plaintiff’s lease into evidence. The plaintiff tendered it into evidence as exhibit A, the 1 st and 2nd defendants tendered it into evidence as exhibit 4 and the 3rd defendant tendered it into evidence as exhibit 8A. In resolving issue 1, I have already held that the late Samuel Martey Kodie validly granted the land in dispute to the plaintiff through exhibit A. The defendants have however challenged the genuineness or authenticity of exhibit A mainly because the signature of the 1 st defendant in the Oath of Proof is different from his signature as a witness to exhibit A.

The 1st defendant has admitted witnessing exhibit A but he has denied swearing to the Oath of Proof. A careful look at the documents that were supposedly signed by the 1 st defendant which are in evidence before this court show a similarity in the signatures signed by the 1 st defendant except the signature in the Oath of Proof of exhibit A. Reference can be made to his signature as a witness to exhibit A, his signature on the receipts marked as exhibits D, E and F, his signature as a witness to exhibits 2 and 5A and his signature in his witness statement filed on 8 th October 2019. Thus, if the 1st defendant asserts that he was not the one who swore to the Oath of Proof in exhibit A, his assertion may be true.

Does it therefore mean that exhibit A is thus invalidated as a result of wrong attribution of a signature in the Oath of Proof to the 1st defendant? My humble answer is in the negative. The reason is that per the authorities, when an indenture is duly executed by the grantor, it transfers or conveys whatever interest that is contemplated in the indenture to the transferee

even if the transferee has not executed the document. In Dacosta & others v. Ofori Transport Ltd. [2007-2008] SCGLR 602 for example, the Supreme Court held that a deed of grant or other assurances of property take effect immediately upon its execution by the grantor and passes the property to be assured to the grantee although the grantee has not executed or assented to the deed.

The evidence on record has clearly established that the late Samuel Martey Kodie duly executed exhibit A, the jurat was signed by his son D. T. Kodie and the document was witnessed by John Kodie, the 1st defendant. To all intents and purposes then, with the due execution of the document by the late Samuel Martey Kodie, it created rights in favour of the plaintiff and those rights, respectfully, cannot be wished away by the wrongful execution of the Oath of Proof.

Closely related to this issue is the assertion by counsel for the 1 st and 2nd defendants that because exhibit A was executed on behalf of the plaintiff by one Alphonse Yao Dom who is not an officer of the plaintiff company but a ‘friend of Professor Beke’, then it was not executed in accordance with the provisions of section 40 of NRCD 175 and as such it invalidates any rights the plaintiff might have acquired in the land in dispute.

To this assertion, I will refer counsel for the defendants to the recent decision of the Supreme Court in Oppong Banahene v. Shell Ghana Ltd. [2017-2018] 2 SCLRG 338 . In that case, the driver of the plaintiff who was supposed to sign delivery notes had failed to sign them and the plaintiff was relying on the absence of the signatures to deny responsibility for goods that were apparently diverted by his driver. There was however evidence on record that the goods had actually been handed over to the driver and the Supreme Court held that the failure of the driver to sign the delivery notes did not detract from the fact that the goods were actually handed over to him.

The court went on further to state that it is not in every case where the absence of a signature of a party on a document will invalidate the transaction. They held that if there is enough evidence on record to show that the transaction actually took place, effect will be given to it even though the relevant document was not signed by one of the parties. The Supreme Court noted at pages 366 to 367 of the report as follows:

“There must be certainty about the reason for the lack of signature, for the absence of a signature should not be fatal to the substance of an agreement if it has in fact been executed by either party in accord with the terms of the contract. … for it is not in every case that the lack of signature invalidates a contract, in the absence of clear agreement to that effect . And even in those cases where there has been a failure to sign the document in clear breach of an agreement, equity would not allow the plaintiff to take the benefit of the service rendered under the terms of the contract without paying for it, albeit on a quantum meruit basis. It would only entitle a plaintiff to resile from the rest of the agreement. For the principle of unjust enrichment would not allow a court of equity to allow the plaintiff to get away with the gains made by his agent to the detriment of the defendant.” [Emphasis mine.]

Though the facts of Oppong Banahene v. Shell Ghana Ltd. (supra) are not on all fours with the present suit, the reasoning of the Supreme Court is sound and I will adopt it for the purposes of this case. It has been established that the plaintiff’s indenture, exhibit A, was signed on behalf of the plaintiff by one Alphonse Yao Dom. In his evidence before the court, he admitted that he was not an officer of the plaintiff company but rather a friend of the majority shareholder of the plaintiff company and he acted for the plaintiff company in that capacity. To all intents and purposes then, he was not clothed with capacity to have signed exhibit A on behalf of the plaintiff company.

The evidence has already established that exhibit A was duly executed by the plaintiff’s grantor Samuel Martey Kodie. I have also already held that per the decision of the Supreme Court in Dacosta v. Ofori Transport Ltd. (supra) , what is necessary is for the due execution of the indenture by the transferor in favour of the transferee. With the said due execution, the plaintiff as transferee became the owner of the land in dispute. The wrongful execution of the indenture by the transferee does not therefore detract from the fact that there was a valid transfer from the transferor to the transferee. I therefore hold that in so far as exhibit A was duly executed by the grantor of the plaintiff, it created rights for the plaintiff regardless of the non-execution or wrongful execution of exhibit A by the plaintiff.

One may also argue that because the plaintiff’s indenture (exhibit A) is not registered, it did not create any rights in favour of the plaintiff. The authorities have established that the validity of a conveyance is dependent on the Conveyancing Act, 1973 (NRCD 175) and not on registration laws. Thus a conveyance when duly executed, creates rights for the transferee even without registration. Registration is only a later act that comes after a due execution of a conveyance.

In Anthony Wiafe v. Dora Borkai Bortey; Civil Appeal No. J4/43/2015 – 1 st June 2016,

the Supreme Court noted on this issue as follows:

“It is by the Conveyancing Act that a transfer of an interest in land is effected whether the grant is under customary law or otherwise, for even customary grants are required to be recorded in the appropriate registry. The court should not downplay the relevance and importance of the purpose of the Conveyancing Act and relegate it to the background and give prominence to the laws requiring registration , lest the latter laws should be used to defraud persons who had genuinely secured grant of land but had not succeeded in registering same.” [Emphasis mine.]

The Supreme Court had made a similar ruling in an earlier case Amuzu v. Oklikah [1998-99] SCGLR 141 where they held at holding (4) of the headnotes as follows:

 

“Non-compliance with the provision of section 24(1) of Act 122 did not render an instrument null, void or invalid. Its effectiveness at law was deferred until or unless it was so registered. However, by the provisions of section 1(1) and (2) of the Conveyancing Decree, 1973 (NRCD 175) a document affecting land even if unregistered could be enforced against a vendor who sought to overreach the holder of that document, who could also use the unregistered document in an action for specific performance against the vendor.”

In the present suit, it is very evident that the 1 st and 2nd defendants being the predecessors in title of the plaintiff’s grantor were attempting to use the fact of their non-registration against them and the court should not lend credence to their actions especially in the light of the fraud that they perpetuated against the plaintiff.

Issue 6 – Whether or not the 3rd defendant has trespassed on plaintiff’s land.

From the holdings above, the plaintiff is the bona fide owner of the land in dispute. That being the case, the 3rd defendant’s presence on the land amounts to trespass and I so hold.

Issue 10 – Any other issues arising out of the pleadings:

(b) Whether the 3rd defendant can be protected under the Land Development (Protection of Purchasers) Act, 1960 (Act 2).

The 3rd defendant asserted that in the event that the court finds that it does not have the right to be on the land in dispute, it shall rely on the Land Development (Protection of Purchasers) Act, 1960 (Act 2). This Act seeks to protect buyers of property who have conducted their affairs in good faith but it later comes out that their title is defective. If the land in dispute is situate within an area covered by Act 2 and they have built up to a certain level, the court can, based upon the provisions of the Act, grant them relief and compensate the other party.

The Act has been applied in cases such as Dove v. Wuta-Ofei [1966] GLR 299, Dzade v. Aboagye [1982-83] 1 GLR 209, Conney v. Bentum-Williams [1984-86] 2 GLR 301 and Oppong v. Vaughn-Williams [2015-2016] 1 SCGLR 781. In Conney v. Bentum-Williams (supra), the court noted at pages 312 and 314 as follows:

“Some of the conditions to be proved by the party seeking protection under Act 2 are that he is a purchaser, he took a conveyance and has in good faith constructed a building on the disputed land. These are all questions of fact to be determined by the trial court.  We think on the evidence, the defendant acted recklessly in putting

up the building. He just wanted to steal a march over the plaintiff because despite the

 

adverse claim made by the plaintiff and indeed, in the teeth of opposition from the plaintiff, he went ahead to construct the building completely indifferent as to the outcome of the dispute. There is no doubt that he put up the building in bad faith, and as rightly found by the learned judge, what the defendant sought to do was to gain title to the land by hurriedly putting up a building on the land . In the circumstances, section 1 of Act 2 could not possibly be applied for his benefit.” [Emphasis mine.]

I am not sure whether the land in dispute is in a prescribed area that Act 2 covers. Proceeding arguendo that the land in dispute is covered by Act 2, does the 3 rd defendant’s actions show any good faith on their part? I do not think so. A careful look at their own title document, exhibit 5A should have put them on notice that there were issues with the land in dispute. It purports to be a sublease but it is not a valid sublease to all intents and purposes.

The evidence of the 3rd defendant’s witness also gave them away that they did not act in good faith. While stating that he knew Rosina Fiahagbe since 2001, he later claimed that it was a mistake and that he did not know her at all. Then he made a quick U-turn and stated that he got to know her in the year 2014 when the 3 rd defendant expressed interest in acquiring the land. This is the nature of his evidence when he was being cross-examined by counsel for the plaintiff on 15th July 2020:

“Q: You stated in paragraph 3 of your witness statement that you were personally involved in the purchase and leasing of the land to Rosina Fiahagbe in 2001. Is that correct?

A: Yes. 2001 is in the witness statement but there is an error. It should be 2002 and not 2001.

Q: When you appended your signature under the witness statement and at the oath of proof, you did not know that it was 2001?

A: My Lord, it was an oversight. …

Q: As a consultant, do you know Rosina Fiahagbe? A: No my Lord.

Q: But in paragraph 3 of your witness statement you claim that you were involved in the leasing and the sale of the disputed land to Rosina Fiahagbe. Now you are saying you do not know her.

A: I repeat again that there is an error in that paragraph. I do not know Rosina Fiahagbe.” [Emphasis mine.]

Then on 20th July 2020 when counsel for the plaintiff asked him further questions on the same

 

issue, this is the nature of his evidence:

“Q: And if it is conclusive, did it mention the name of Michael Kodie as the owner of the land?

A: My Lord, it did not mention the name of Michael Mensah Kodie. The name the search report gave was the name we based on and we traced this name to confirm from Mrs. Rosina Fiahagbe.

Q: Again, I am putting it to you that you are not telling the court the truth because earlier you told this court you did not know Rosina Fiahagbe.

A: My Lord, I am saying the truth, nothing but the truth because my paragraph 3, the date 2001 was an error. I know Mrs. Rosina Fiahagbe since 2014 when I went on the land and did the search. And I asked Kodie family who is that woman and they gave me her address. That is where I got to know the woman.

Q: Did you not tell this court earlier on that you did not know Rosina Fiahagbe?

A: I told the court I did not know Rosina Fiahagbe because I did not know her in 2001. I knew her in 2014.

Q: I put it to you again that you are not telling the court the truth because when you were asked about Rosina Fiahagbe, it was not linked to any year.

A: My Lord, I am under oath. I am saying the truth and nothing but the truth. I knew her in 2014.”

The 3rd defendant also conducted a search only at the Survey and Mapping Division of the Lands Commission. That search alone would not be enough to determine any conflicting interests on the land in dispute. Though the 3 rd defendant was acting through a consultant Freeman Kove who claimed the name of his consulting company was Gold Dust Construction Ltd., the said search they are relying on was not conducted by the said consultant or his company but rather by one Anthony Hood. There is no evidence before the court as to the identity of the said Anthony Hood.

The evidence on record also reveals that the plaintiffs were in possession but the 1 st and 2nd defendants actually drove them off the land. Though the defendants claimed that the plaintiffs were never in possession but it was rather Rosina Fiahagbe who was in possession, in paragraph 7 of the 1st and 2nd defendants further amended statement of defence filed on 24 th June 2019, the 1st defendant claimed he went to the disputed land to warn the plaintiffs that the land had already been sold to Rosina Fiahagbe. The said paragraph 7 stated as follows:

 

“The defendants deny paragraphs 6, 7 and 8 of the statement of claim and put the plaintiff to strict proof thereof. The 1st defendant avers in denial that he only went to the disputed land to inform agents of the plaintiff that the land had already been sold to Madam Rosina Fiahagbe. …” [Emphasis mine.]

If Madam Rosina Fiahabge had been in possession of the land at all material times, how come the plaintiff’s agents were on the land and the 1 st defendant had to go onto the land to inform them that the land had already been sold to Madam Rosina Fiahagbe? This therefore further exposes the lies that the defendants have formed their case around. All these, coupled with the suspicious documents that the 3rd defendant is relying on, it is more probable than not that the 3rd defendant knew of the plaintiff’s interest in the land but they, together with the 2 nd and 1st defendants, wanted to wrestle the land from the plaintiff and this is not an act of good faith. I therefore hold that the 3rd defendant cannot avail itself of the defence under Act 2.

Issue 5 – Whether or not the plaintiff is entitled to its claim.

It therefore follows that the plaintiff has been able to prove its claim on a balance of probabilities. The plaintiff is therefore entitled to its claim before the court. In the light of the evidence on record and based on my holdings above, and in doing substantial justice while being guided by the decisions of the Supreme Court in cases such as Hanna Assi (No. 2) v. GIHOC (No. 2) [2007-2008] 1 SCGLR 16, Muller v. Home Finance Co. Ltd [2012] 2 SCGLR 1234 and Kwa Kakraba v. Kwesi Bo [2012] 2 SCGLR 834 , I make these final orders in respect of this suit:

i. I declare that the plaintiff has a valid ninety-nine year leasehold over all that piece or parcel of land situate and lying at Dawhenya in the Dangbe West District of the Greater Accra Region and bounded on the North-West by the Lessor’s land measuring 100 feet more or less, on the North-East by the Lessor’s land measuring 240 feet more or less, on the South-East by an existing road measuring 110 feet more or less and on the South-West by the Lessor’s land measuring 200 feet more or less commencing from 4th January 2005.

ii. The supposed sublease between the 2nd defendant and the 3rd defendant is not a valid sublease as the 2nd defendant did not have any interest in the land in dispute to have made a valid grant to the 3rd defendant. The said sublease is also tainted by fraud.

iii. The 3rd defendant’s land certificate which is based on the impugned sublease is therefore not a valid land title certificate. I therefore direct the Lands Commission through its Land Registration Division to rectify the land register by cancelling land title certificate number TD 14890 issued to the 3 rd defendant on 12th April 2018.

 

iv. The plaintiff could have recovered possession from the 3 rd defendant but considering the fact that the 3rd defendant has constructed a church building on the land which serves the community, I will, in the interest of justice, direct that the plaintiff grant a sublease to the 3rd defendant for a period not exceeding twenty years with the reversion in the plaintiff, the effective date being 11 th August 2017, the date the 3rd defendant apparently took possession of the land in dispute. The plaintiff and the 3rd defendant can however agree on a term which is more or less than the twenty years and they may also agree on the transfer of a different interest other than a sublease to the 3 rd defendant.

v. In the event that the plaintiff and the 3rd defendant decide to enter into a sublease, they may negotiate the rent payable among themselves failing which the land on which the property is situate will be valued and a licensed professional will help them to come up with an acceptable rent agreeable to all. The cost of any such valuation and determination of the rent payable will be borne solely by the 3 rd defendant.

vi. The 1st and 2nd defendants or any persons claiming through them are perpetually restrained from dealing in any manner with the land in dispute until the plaintiff’s lease is extinguished.

vii. I award cost of GH¢10,000.00 jointly against all the defendants in favour of the plaintiff.

Postscript

Trial in this suit concluded on 20th July 2020. Parties were directed to file their addresses on or before 16th October 2020. Counsel for the plaintiff filed the plaintiff’s address on 16 th October 2020 and counsel for the 1st and 2nd defendants filed the 1st and 2nd defendants address on 15 th October 2020. When I was about to deliver this judgment on 22 nd December 2020, counsel for the 3rd defendant informed the court that he was now filing the 3 rd defendant’s address and he apologised for the delay in the filing. The said address was indeed filed on 22 nd December 2020 at 10.30am after I had finished delivering the judgment. I must state that whilst I am not bound by the addresses of the parties, I did not consider the address of the 3 rd defendant in delivering this judgment as it was filed too late in the day.