Opanin Kwaku Asare v. Oheneyere Abena Akyaa Panin

INTRODUCTION

This appeal lies from the Judgment of the Circuit Court, Kumasi, delivered on 17 March 2023. The trial Judge upheld plaintiff’s claims for declaration of title to land, recovery of possession, damages for trespass and injunction. Questions raised by this appeal include the effect of failure of a trial court to pronounce on the counterclaim of a defendant; allocation of burden of proof of fraud in a civil suit; legal effect of an allocation paper in land transactions; reliance on documents marked as rejected and whether the planning scheme of an area is an instrument affecting land. The defendant has invoked our jurisdiction by her notice of appeal filed on 4 April 2023. Henceforth, plaintiff/respondent and defendant/appellant will simply be referred to as plaintiff and defendant, respectively, for ease of reference.

BACKGROUND FACTS

We state the facts relevant to this appeal. The plaintiff describes himself as a farmer. The defendant is also described as the Queen mother of Atonsu- Kuwait and occupant of Takyiaw Stool, having succeeded her mother Obaapanin Amma Nyantakyiwaa (deceased). The plaintiff asserted that, during the reign of defendant’s predecessor, Obaapanin Amma Nyantakyiwaa, he acquired three plots of land from the Takyiaw Stool. Details of the acquisition are: (i) Plot No. 18 Boakye Ansah Street; (ii) Plot No. 19 Atonsu Kaase Road, both purchased on 16 September 2002; and (iii) Plot No. 20, Atonsu-Kaase Road purchased from one Madam Ama Benewaah Regina Hammond, an allotee of the Stool, on 10 March 2004. The plaintiff averred that he gave valuable consideration for the purchases and was given documents evidencing the transactions. He then molded cement blocks and kept trips of sand on the land. As regards Plot No. 19, it was the case of plaintiff that, he gave a portion of this land to another person to be used as a washing bay temporarily. In the main, plaintiff stated that he remained in quiet and undisturbed possession until he noticed defendant actively filling the plots with soil and when he approached defendant, she told him she had taken back the plots.

It was based on these facts that plaintiff sued defendant for declaration of title to Plots No. 18,19 and 20, described above, an order for recovery of possession, damages for trespass and an order of perpetual injunction to restrain defendant, her agents, servants, workmen and all others claiming title through her from dealing with the plots in dispute.

One Hamidu Mahama Sorogo was joined to the suit as 2nd defendant but plaintiff later discontinued the suit against him. By her further amended statement of defence and counterclaim filed on 19 June 2020, defendant denied plaintiff’s claims. Defendant alleged that prior to the demise of her predecessor, she was unwell, physically and mentally. In that condition, plaintiff herein, one George Agyapong and Kofi Owusu Dwumfour who assisted her predecessor in allocating lands took undue advantage of her ill-health to prepare fraudulent allocation notes of the land plaintiff is laying claim to. The plaintiff specifically pleaded that she does not have any interest in Plot No. 18, Boakye Ansah Street and Plot No. 19, Atonsu Kaase Road as same were allocated by her predecessor long before she was enstooled. Another specific averment made by the defendant was that, neither she nor her predecessor allocated Plot No. 20, Atonsu-Kaase Road, now Plot No. 2 Kaase Land Fill Road, to anyone. She however admitted allocating Plots Nos. 5 and 7, Kaase Land Fill Road, Atonsu-Edwinase to one Hamidu Mahama Sorogo which was unincumbered, after which plaintiff laid adverse claim to the said plots. Upon her enstoolment, defendant alleged that she caused a public announcement to be made for all land owners to present their documents for verification. She contended that when the plaintiff presented his documents and she examined them, she realized that the documents had been fraudulently procured. She then particularized the alleged fraud and counterclaimed against the plaintiff as follows:

1. (a) A declaration that all the parcels of land described as Plot Numbers 12, 13,14,15 and 17, Kaase Land Fill Road, Edwinase-Kumasi is the property of the Takyiaw Stool.

2. (b) An order for recovery of possession of these lands.

3. (c) An order of perpetual injunction restraining the plaintiff, his agents, assigns, privies and workmen from entering, developing or otherwise interfering with these parcels of land, the property of Takyiaw Stool

4. (d) General Damages for trespass.

DECISION OF THE CIRCUIT COURT

After a plenary trial, the court found that, the Takyiaw Stool allocated the subject matter to plaintiff and defendant had failed to prove that the acquisition was fraudulent; that the identity of the land was not in dispute and the change of the plot numbers was as a result of the demarcation by defendant.

The court rejected the layout of the area which defendant had tendered as exhibit ‘1’, and concluded that, plaintiff had proved his case by the preponderance of probabilities but defendant had failed to prove her counterclaim. The court granted plaintiff’s reliefs as endorsed on her amended writ of summons, and awarded GH₵10,000 damages for trespass against defendant as she has re-entered the land and costs of GH₵ 8000.00.

The defendant was dissatisfied with the judgment of the trial court and did not waste time to launch her appeal against the same.

GROUNDS OF APPEAL

The following constitute the grounds upon which defendant impugns the judgment of the trial Circuit Court:

(a) The learned trial Judge erred in law in holding that the defendant had failed to prove that the plaintiff’s alleged acquisition was fraudulent.

Particulars of error of law

 

That the trial court having rejected the Allocation Notes tendered by the Plaintiff relieved the defendant of the burden to prove that same were fraudulent.That the trial court failed to consider the counterclaim of the defendant thereby occasioning a grave miscarriage of justice.

(b) That the trial judge erred in law in relying on the plaintiff’s exhibits “A”, “A1” and “B”.

Particulars of errors of law

(i) That since the said documents were admitted subject to the production of their originals, they stood rejected upon failure of the plaintiff to produce their original.

(ii) That exhibits “A” and “A1” being documents affecting land were inadmissible per se as they were not stamped.

(c) That the trial Judge erred in law in rejecting the defendant’s exhibit “1” in her judgment.

Particulars of errors of law

That the said document being the approved layout of the area is not an instrument affecting land and need not be stamped.

(d) The Judgment is against the weight of the evidence.

(e) That the trial judge’s finding that the defendant had trespassed onto the plaintiff’s land is not borne out of the record.

CONSIDERATION OF THE APPEAL GROUND A

 

“The learned trial Judge erred in law in holding that the defendant had failed to prove that the plaintiff ’s alleged acquisition was fraudulent”

The substance of the submissions of counsel for defendants is that, the particulars of fraud pleaded by defendant pertained to the documents plaintiff sought to rely on to prove his acquisition of the land in dispute. Consequently, when the trial court rejected those documents, there was no duty on defendant to show that the rejected documents were fraudulent. Counsel argues that such a course will be a waste of the court’s time and amount to defendant introducing evidence to incriminate herself. In counsel’s view, the trial judge’s finding that defendant failed to prove that the plaintiff’s allocation note is fraudulent is not supported by law, particularly when the court itself rejected the document.

On his part, counsel for plaintiff submits that, the onus of proof of fraud was on defendant who alleged fraud and particularized it. Counsel stressed that, defendant failed to adduce any evidence on the mental capacity of her predecessor, Nana Nyantakyiwaa, as well as the alleged forgery of her signature. In particular, counsel emphasized that the signature of a dead person can be proved by comparing the disputed signature with another signature admitted to be genuine, and coming from proper custody. He submits that defendant made no effort to prove that the disputed signature of her predecessor was forged.

We have examined the record of appeal as we are enjoined by law to do. The trial judge’s finding on fraud can be found at pages 296 to 297. The Judge acknowledged that defendant did particularize her allegation of fraud but did not lead evidence to prove same. The trial Judge stated in her judgment that, “the allegation that Obaapanin Nyantakyiwaa was weak and mentally unstable was not substantiated with evidence. Neither did she lead evidence to show that exhibits ‘A’ and ‘A1’ were fraudulently obtained”. The Judge went on to state that at page 10 of her judgment (297 of the record of appeal) that, “the defendant claimed the signature of Nana Ama Nyantakyiwaa on the allocation paper was completely different from her original signature but the defendant did not tender any of the original allocation notes that had her signature to buttress her claim. In her defence she claimed PW1 and George Agyapong (deceased) had access to original allocation papers, so they erased the name and plot numbers on the allocation note and that is why the plaintiff did not have the original document. If that was so, then at least the signature of the allotor will be original”

The trial judge accepted the evidence of plaintiff and PW1 and found that, the Takyiwa (sic) stool allocated the subject matter to plaintiff and that defendant had failed to prove that the acquisition was fraudulent. What is fraud in law? We turn to Kerr on the Law of Fraud and Mistake, 7th edition, by Denis McDonnel and John Munroe, at page 18 as follows:

“There is fraud in law if a man makes a representation which he knows to be false or does not honestly believe to be true and makes it with a view to induce another to act on the faith of it, he does it accordingly, and by so doing sustains damage…”

The Court in Aikens v. Dakwa (2013) GMJ 209adopted the meaning of fraud as stated in the celebrated case of Derry v. Peek (1889) 14 Appeal Casesas follows:

“What amounts to fraud has long been settled in Derry v Peek (1889)14 Appeal Cases as follows: ‘fraud is proved when it is shown that a false representation has been made (1) knowingly or (2) without belief in its truth or (3) recklessly, careless whether it be true or false…’ These are the elements of fraud which plaintiff must prove.”

Fraud, when pleaded in a civil matter, amounts to an allegation of commission of a crime. It is the law that an allegation of fraud in a civil matter ought to be proved beyond reasonable doubt, as required by section 13(1) of the Evidence Act 1975(NRCD 323)thus:

 

“In a civil or criminal action, the burden of persuasion as to the commission by a party of a crime which is directly in issue requires proof beyond a reasonable doubt.”

This standard of proof has been applied in cases such as Fenuku & Another v. JohnTeye & Another (2001-2002) SCGLR 985and Sasu Bamfo v. Sintim (2012) 1SCGLR 139. With the above exposition of the law, the onus probandi is always on the person who alleges fraud. See: Motor Parts Trading Co. v. Nunoo (1962) 2 GLR 195.

In Republic v. High Court, Accra, Ex parte Godfred Aryeetey (2006)1 GMLR136, Kpegah JSC clarified that:

“…The proponent must not only distinctively specify the alleged fraud but also strictly prove same because it is not permissible to infer fraud from general situations or facts”

The defendant herein passed the first test by pleading and particularizing fraud in paragraphs 16 and 17 of her further amended statement of defence at page 192 of the record of proceedings as follows:

The 1st defendant avers that when plaintiff was asked to produce all his documents covering the disputed properties mentioned supra, he informed the 1st defendant that she was going to get them from one Kofi Owusu who had custody of the said documents.

The 1st defendant avers that when the said documents were presented to her, she examined them and realized they were fraudulently procured.

Particulars of Fraud

 

(a) That the documents presented were only photocopies and when asked to produce their originals for comparison the plaintiff was unable to do so.

(b) That because Kofi Owusu Dwumfour and George Agyapong had access to the previous allocation notes issued by the 1 st defendant’s predecessor, they erased the names and plot numbers and inserted the plot numbers as claimed by the plaintiff as well as his name.

(c) That since the 1st defendant’s predecessor was at the time mentally incapacitated, she could not have executed the said allocation notes as claimed by the plaintiff.

(d) That the signature on the said allocation notes is remarkably different from that of the 1st defendant’s predecessor.”

Was defendant able to prove the above particulars of fraud beyond reasonable doubt at the trial? The defendant attempted to do so in paragraphs 13 to 20 of her witness statement which she relied on as her evidence in chief. In sum, it was defendant’s testimony that, when she requested plaintiff to produce documents on plots 5 and 7, plaintiff said he was going to collect them from one Kofi Owusu; that Kofi Owusu and George Agyapong used allocation notes which were in their possession by virtue of their relationship with the part (sic) Oheneyere and put numbers and names on these allocation notes to illegally sell lands belonging to the stool; that plaintiff later brought fake allocation notes fraudulently prepared by Kofi Owusu and George Agyapong but could not produce the originals; that Kofi Owusu and George Agyapong used original allocation notes issued by the defendant’s predecessor , cleaned the names and plot numbers and then inserted plot numbers and names and unlawfully allocated these plots without any mandate from the stool; that plot numbers 12,13,14,15 and 17 currently occupied by plaintiff are not his plots because the documents covering them were fraudulently procured.

 

Will the bare assertions of fraud repeated on oath suffice under these circumstances? We do not think so. The plaintiff denied all the allegations of fraud under cross-examination, which raised reasonable doubts in the defendant’s oral testimony. When defendant was subjected to intense cross-examination by plaintiff’s counsel, she repeatedly said the documents defendant brought to her were fake because they differed from the allocation notes issued by her grandmother. The defendant maintained that, whereas her grandmother’s allocation notes were on a yellow A4 paper, with writings in blue ink and bearing her grandmother’s signature, the allocation notes which defendant presented to her were on a “sheet of paper that things have been written on it” and it was not her grandmother’s allocation note. These were again denied by plaintiff.

The defendant made no effort to tender any of the so-called genuine allocation notes issued by her predecessor and the alleged fake allocation notes which plaintiff brought to her and she examined. If these documents had been put in evidence by defendant, this court would have been better placed to do its own independent assessment and make a positive finding as to whether or not plaintiff’s allocation notes and the signature thereon attributed to Oheneyere Ama Nyantakyiwaa a.k.a Obaapanin Ama Nyantakyiwaa, are genuine or not.

The defendant could not also confront Owusu Dwumfour with any of the allegations made against him when he testified as PW1. The evidence of PW1 was so clear that he, together with George Agyapong (deceased) and a surveyor called Owusu Asante (deceased) were in charge of demarcation of portions of Atonsu Edwenase stool land to prospective developers and that they worked for the occupant of the stool by name Obaapanin Ama Nyantakyiwaa a.k.a. Oheneyere Ama Nyantakyiwaa. PW1 testified further that on 16 September 2002, the team sold Plot No. 18 Boakye Ansah Street and Plot No. 19 Atonsu-Kaase road to plaintiff, on behalf of Nana Ama Nyantakyiwaa. PW1 went on to say that, his team prepared the allocation paper and the site plan of the two plots for plaintiff, the allocation note was signed by Obaapanin Ama Nyantakyiwaa and she received the consideration (payment).

Counsel for defendant could not discredit the above testimony of PW1 under cross-examination apart from “putting” or “suggesting” to him that his evidence was not true. PW1 was not asked a single question about

 

issuance of fake documents to plaintiff to enable him explain it away.

When defendant mounted the witness box, she made an unequivocal admission that PW1 was among the persons who assisted her predecessor in selling land. The following transpired between counsel for defendant and PW1 at page 250 of the record of appeal:

Q. You see these two people Kofi Owusu and George Agyapong together with a surveyor called Mr. Asante also deceased; they help (sic) Obaapanin Ama Nyantakyiwaa the sale of Techiwa stool lands (sic)?

A. They were the one (sic) that helped her. She sent them to show the land whenever somebody came to my grandmother for a land. Thereafter, the person comes back for documentation.

Q. And your grandmother normally signed the allocation paper, is that right?

A. Yes, she signs.”

The above answers of defendant under cross-examination confirm the testimony of PW1 as regards how he and his team assisted Obaapanin Ama Nyantakyiwaa in selling Takyiaw Stool land. By this admission, we think plaintiff was able to raise a reasonable doubt in the allegations made against him by defendant.

We are unable to agree with defendant’s counsel that there was no duty on defendant to prove fraud in the peculiar circumstances of this case. The trial court’s rejection of the allocation notes, following the objections raised by defendant’s counsel, did not relieve defendant of the burden of introducing independent evidence of her allegations that the documents which plaintiff had earlier presented to her are fake. This is a fact capable of positive proof and the mere repetition of averments in pleadings on oath did not meet the threshold required to establish the alleged crime.

Again, on a scrutiny of defendant’s evidence, we do not find any positive proof that Oheneyere Ama Nyantakyiwaa a.k.a. Obaapanin Ama Nyantakyiwaa suffered from any mental incapacitation at the time plaintiff acquired his land or even before her death. Accepting the arguments made by defendant’s counsel would mean that, defendant was relieved of the burden of establishing the mental incapacitation of Oheneyere Ama

 

Nyantakyiwaa a.k.a. Obaapanin Ama Nyantakyiwaa because the court rejected plaintiff’s allocation papers. And we ask, where lies the nexus between allocation papers and mental incapacitation? Ordinarily, there is no such connection! Therefore, for defendant to succeed on her allegation of mental incapacitation of her predecessor, she ought to have produced cogent evidence capable of establishing beyond reasonable doubt the mental state of no less a person than Oheneyere Ama Nyantakyiwaa a.k.a. Obaapanin Ama Nyantakyiwaa for which reason she could not legally execute any of the documents attributed to her. This, the defendant failed to do.

The only error on the part of the trial Judge was the reference to exhibits “A”, “A1” and “B”, but the erroneous admission of these documents has not occasioned any substantial miscarriage of justice. We would discuss this further in considering ground “C” of the appeal. Even if these documents were excluded, we still hold the view that the defendant was never relieved from the burden of establishing her allegations of fraud.

The evidence adduced by defendant, which was discredited in cross- examination, cannot by any stretch of imagination amount to proof of the particulars of fraud beyond reasonable doubt. We remind defendant that, to amount to fraud, the conduct complained of must be deliberately dishonest. See: Barclays Bank v. Cole (1966)3 All ER 948, CA. As the Court observed in Osei Ansong v Ghana Airports CoLtd [2013- 2014] 1 SCGLR 25:

“Fraud is not fraud merely because it has been stated in a writ to excite the feelings of the courts”

The defendant having failed to discharge her onerous burden of proof beyond doubt, the trial judge had no option than to dismiss her allegation of fraud. We conclude our discussion on fraud with the Supreme Court’s admonition to legal practitioners on pleading fraud when the same cannot be proved by credible evidence, in the case of Okwei Mensah (decd.) (acting by) Adumuah Okwei v. Laryea (decd.) (acting by)Ashieteye Laryea & Anor (2011) 1 SCGLR 317(holding 2) that:

 

“Fraud qua fraud was such a serious allegation in legal proceedings. It should not be lightly made. The courts would look with disfavour on a party who made it and was unable to substantiate it and would, sometimes, dismiss his action with heavy penalties. Consequently, fraud should not be pleaded when counsel could not, from available instructions, form a strong opinion in favour of it…” (Our emphasis)

We find no merit in ground A of the appeal and the same is dismissed.

GROUND C

The trial judge erred in law in relying on the plaintiff ’s exhibits “A”, “A1” and “B”.

The trial Judge at page 8 of the judgment (295 record of appeal) made reference to exhibits “B”, “A” and “A1” in analyzing the evidence in respect of Plot No. 20. She said:

“According to the plaintiff he further acquired the aforementioned plot known as Plot No. 20 Atonsu road from Madam Ama Benewaa Regina Hammond and was given a document executed by the said Madam Ama Benewaa Regina Hammond transferring her interest in the plot to him. Same was marked as exhibit “B”, and Exhibits “A” and “A1” are the allocation note and site plan of Plot 20.

Then, at page 297 of the record, the trial Judge said “…neither did she lead any evidence to show that exhibits “A” and “A1” were fraudulently obtained.”

It is the above pronouncements which have given rise to this ground of appeal. The plaint of counsel for defendant is that, exhibits “B”, “A” and “A1” are documents inadmissible per se. He argues that exhibits “B” and “A” apart from being photocopies are unstamped; that exhibits “A” and “A1” were admitted subject to the production of the original which were never produced by defendant during the trial; and exhibit “A1” is also not

L.I. 1444 compliant. Yet, the trial court erroneously relied on these documents to arrive at the decision that plaintiff had established his claim to Plot No. 20.

 

Taking his turn, counsel for plaintiff urges us to reject the arguments put across by defendant’s counsel because no objection was raised as to the authenticity of “B”, “A” and “A1” to enable plaintiff to respond. According to plaintiff’s counsel, the objection that the documents are photocopies would not make the documents inadmissible, because in terms of section 166 of the Evidence Act, 1975 (NRCD 323),the photocopy is as good as the original except where a genuine question is raised as to its authenticity, or where it would be unfair to admit the duplicate in lieu of the original.

Counsel also argues that, exhibit “B”, is a statutory declaration and before the passage of the Land Act 2020 (Act 1036),it was not a document which needed to be stamped.

It appears to us that counsel for plaintiff chose not to respond to the submissions that exhibit “A” is not stamped and exhibit “A1” is not L.I. 1444 compliant. Counsel concludes that, assuming without admitting that exhibits “A”, “A1” and “B” are inadmissible, the transactions between plaintiff and the defendant’s predecessor were customary grants and therefore the absence of allocation notes and site plans would not render the grant void.

On our examination of the record of appeal, we note that the trial Judge admitted the statutory declaration for what it is worth, but said “it is to be marked as Exhibit A”. However, it was marked as exhibit “B” and for the sake of consistency, we would maintain that description.

Still at page 201 of the record of appeal, we observe that counsel for defendant objected to the allocation note and site plan on the basis that they are photocopies and the allocation note is also not stamped. The court then admitted these two documents, subject to the production of the original. The allocation notes and site plan of plot 20 were then marked as exhibits “A” and “A1”.

On the complaint that exhibits “A”, “A1” and “B” are photocopies, we say that documents are not made inadmissible per se simply because they are photocopies. We tend to agree with the arguments of plaintiff’s counsel that, a copy or duplicate of a document is admissible to the same extent as the original. Section 166 of NRCD 323provides that:

“Duplicate treated as original

A duplicate of a writing is admissible to the same extent as an original of that writing, unless a genuine question is raised as to the authenticity of the original or the duplicate, or

1. (a) in the circumstances it would be unfair to admit the duplicate in lieu of the original.”

“Section 164 of NRCD 323also defines a duplicate as follows:

“A duplicate of a writing is

1. (a) a copy produced by a technique which ensures an accurate reproduction of the original;

2. (b) a copy produced by the same impression, or from the same matrix, or by means of photography, including enlargements and miniatures, or by mechanical or electronic re-recording or by chemical reproduction, but does not include a copy reproduced after the original by manual handwriting or typing.”

On the basis of the foregoing, a photocopy of a document may be admissible in lieu of the original. See also section 165 of NRCD 323. However, where both the original and the copy are produced for inspection and comparison by the court or adverse parties before or at the hearing, the court is entitled to treat the copy as original. Perhaps, the trial Judge’s order that the originals of exhibits “A” and “A1” ought to be produced was for purposes of comparison. The non-production of the original should not result in an automatic rejection of the photocopy, especially so, when defendant failed to establish her assertion that the copy tendered at the trial was fraudulently procured.

It has also been urged on us by counsel for defendant that exhibit “A”, the allocation paper has not been stamped. Is an allocation paper a document which requires stamping under the Stamp Duty Act, 2005 (Act 689)?

 

Section 32(6) of Act 689provides that:

“Except as expressly provided in this section, an instrument

1. (a) executed in Ghana, or

2. (b) executed outside Ghana but relating to property situate or to any matter or thing done or to be done in Ghana, shall except in criminal proceedings, not be given in evidence or be available for any purpose unless it is stamped in accordance with the law in force at the time when it was first executed.”

The law is settled that a conveyance or transfer of an interest in land must be stamped and registered before it can be admitted in evidence at a trial. However, it has been held in cases like Boateng (No.2) v. Manu (No.2) & Anor [2007-08] SCGLR 1117;and Deliman Co Ltd v HFC Bank Gh Ltd, Civil Appeal No. H1/14/2014, dated 17March 2015, that an allocation paper is not an instrument affecting land and need not be registered. In the Boateng case referred to above, the Supreme Court stated at page 1130, per Brobbey JSC, that at best, an allocation paper “may be stamped for the same of its admissibility”. The court went on to state, that when admitted in evidence, it can only show that some transaction had taken place to signify that the owners of the land had purported to give some land to an individual or a corporate body. The grantee will however need to perfect his title by obtaining the appropriate documents.

In our opinion, an allocation paper which is not an instrument affecting land is not made invalid if it is not stamped. However, for purposes of tendering it as evidence in court, it is required to be stamped. In other words, an allocation paper or note will be inadmissible in evidence unless it is duly stamped in accordance with Act 689. Any defect is to be cured before the same could be tendered in evidence.

 

Similar to an allocation paper, a statutory declaration has been held to be a self-serving document of the facts recited therein and does not constitute an instrument affecting transfer of an interest in land. The learned author, Dennis Dominic Adjei, in his book LAND LAW, CONVEYANCING AND PRACTICE IN GHANA, 3rd edition, page 288, explains how statutory declarations are used in land transactions in these words:

“In practice, a grantee with an allocation paper who wishes to transfer his interest in land uses a statutory declaration for that purpose. The person divesting his interest in a land where there is no instrument affecting the land such as a registered conveyance, deed of gift or a lease transfers his interest to another person by making a statutory declaration that he has divested himself of his interest in the said land. In practice, statutory declarations are not used as evidence of a fresh grant but of a transfer from a person with an allocation paper, a contract of sale, an assurance, etc.”

We hold that, in terms of section 32(6) of Act 689, a statutory declaration by which a person seeks to divest his interest in land ought to be stamped before it can be admitted in evidence. This position finds support in the case of Opanin Kwaku Duah &Another v. Peter Kofi Okyere & 2 Others, Civil Appeal No J4/41/2021, dated 18January 2023, where an objection was raised for the first time at the Supreme Court that a statutory declaration tendered as exhibit 4, was inadmissible for not being stamped. Relying on its previous decision in Lizori Ltd v. Boye & School of DomesticScience & Catering (2013-2014) SCGLR 889, the apex court held thus:

“It is settled law that, a court is not permitted to admit and or rely on evidence which is legally inadmissible per se, with or without objection. Therefore, since exhibit ‘4’ constitutes an instrument affecting land, under the Stamp Duty Act 2005 (Act 689) but had not been duly stamped in accordance with the Act, same was inadmissible and we so hold”

 

In these proceedings, we observe that the trial Judge admitted in evidence the unstamped statutory declaration by which Ama Benewaah Regina Hammond divested her interest in Plot 20 to Opanin Kwaku Enu of Apinkra, and subsequently affirmed plaintiff’s interest in the said plot 20 in her judgment. In our view, the unstamped allocation paper and statutory declaration which sinned against section 32(6) of Act 689 were inadmissible per se and should not have been admitted in evidence by the trial judge. Also, the site plan attached to the allocation paper which was not signed by a licensed surveyor is non-compliant with the provisions of

L.I. 1444 which made it inadmissible in evidence. These documents ought to be excluded from the record, pursuant to Section 8 of the Evidence Act, NRCD 323, which provides as follows:

“8. Exclusion of evidence

Evidence that would be inadmissible if objected to by a party may be excluded by the Court on its own motion.”

We rely on section 8 of the Evidence Act, NRCD 323, supra, and hereby exclude exhibits “A”, “A1” and “B” from the record.

The exclusion of the above documents will not automatically result in a ruling against plaintiff on the facts in issue. The court is enjoined to review the entire evidence and apply the law to determine whether plaintiff’s claims have been proved by the preponderance of probabilities.

We are not oblivious to the law that a judgment or decision will not be altered or set aside or reversed on appeal because of the erroneous admission of evidence unless the erroneous admission has resulted a substantial miscarriage of justice. See section 5 ofNRCD 323.

Although we come to a conclusion that, exhibits “A”, “A1” and “B” were erroneously admitted and have excluded the same, we are unable to set aside the judgment because no substantial miscarriage of justice has been occasioned.

GROUND D

 

“That the trial Judge erred in law in rejecting the defendant’s exhibit “1” in her judgment.”

At the court below, counsel for plaintiff objected to the tendering of exhibit “1” on the basis that it is an unstamped cadastral plan which had also not been signed by a licensed surveyor, as required by L.I. 1444. The response by defendant’s counsel was that, the document is the approved layout of the area but not a cadastral plan. The trial Judge then overruled the objection and admitted the document for what it is worth. Quite strangely, the Judge rejected exhibit “1” in her judgment. She described it as a “cadastral plan” and assigned the following as the reasons for the rejection (see page 299 of the record of appeal):

“Exhibit ‘1’ tendered by the defendant does not show who authored the said land whether indeed it is coming from the town and country planning department of the Kumasi Metropolitan Assembly. The said exhibit is also not stamped. It being a land document, it ought to have been stamped… Inadmissible evidence admitted into evidence does not make same admissible. Thus, the court rejects exhibit ‘1’ and will not rely on same”

Before us, counsel for defendant repeats his argument that, exhibit ‘1’ is the layout of the area but not a cadastral plan as wrongly described by the court below in its judgment. Counsel argues that the document shows on its face that it was prepared by one Rosamund Edusei and approved by the erstwhile Town and Country Planning Department of the Kumasi Metropolitan Assembly. And, without defendant leading evidence to the contrary, nothing more was required to add to the validity of exhibit “1”. He maintains that exhibit ‘1’ is the approved layout of the area but not an instrument affecting land and need not be stamped.

Quite expectedly, counsel for plaintiff also stands by his argument that exhibit “1” is a map of land and the same ought to have been prepared and signed by a licensed surveyor and approved by the Director of Survey or his representative for same to be valid. He adds, that the document is also not signed or dated. Counsel then refers us to Nortey v. African Institute of Journalism and Communication & Others,Civil Appeal No. J4/47/2013, dated 26 February 2014, where the Supreme court held that a site plan admitted in evidence but which was not L.I. 1444 compliant did not constitute evidence for the purpose for which it was tendered, and that the courts have a duty to ensure compliance with statute including subsidiary legislation like L.I. 1444.

The arguments of both counsel call for a scrutiny of the document tendered as exhibit “1” but which the trial Judge “rejected” in her judgment. At page 247 of the record, the trial judge described exhibit “1” as a “plan layout” when she admitted it in evidence. We have examined the document. On its face, the document is the Atonsu Edwenase Planning Scheme, prepared by the Town and Country Planning Department of the Kumasi Metropolitan Assembly, as rightly submitted by counsel for defendant.

It appears to us that counsel for plaintiff seeks to use L.I. 1444 as his trump card for the exclusion of exhibit “1” by the trial Judge. Section 3(1) of the Survey (Supervision and Approval of Plans) Regulations, 1989 (L.I. 1444) states that:

“No plan of any parcel of land attached to any instrument for registration of such instrument shall be accepted by the Chief Registrar of lands or the Registrar appointed pursuant to the provisions of the Land Registry Act, 1962 (Act 122) unless the plan has been approved by the Director of Surveys or any official surveyor authorised in that behalf in accordance with regulation 2 of these regulations.”

The document in issue before us is not a site plan or a plan of land which falls within the ambit of L.1. 1444. It is a planning scheme of an area. On its face, it is a certified true copy of an official document prepared by a public officer from the then Town and Country Planning Department of the Kumasi Metropolitan Assembly in the course of employment. The document was made in July 2015. The plan number is EJI/REV./DEV/CON/11/1. It was prepared by Ophelia Asare and Kwasi Agyemang, under the technical supervision of Samuel Aidoo. It also bears the names of Metro Director, Regional Director and Acting National Director, i.e. William Osei, Rosamund Edusie and Asiedu Poku, respectively.

In terms of section 37 of NRCD 323, the official duty of authorised officers of the then Town & Country Planning Department as regards the preparation and approval of the planning scheme is presumed to have been regularly performed. In the absence of any evidence from plaintiff to displace this presumption, the trial court ought not have excluded exhibit “1” from the evidence, or worst still, “reject” it in the manner she did. We think the trial Judge fell into a grave error in “rejecting” exhibit “1”.

We accordingly allow this ground of appeal and restore exhibit “1” which was erroneously “rejected” by the trial judge in his judgment. We would evaluate exhibit “1” in the course of this Judgment.

GROUNDS B & E

“The trial court failed to consider the counterclaim of the defendant thereby occasioning a grave miscarriage of justice”

“The Judgment is against the weight of the evidence”

We turn to defendant’s grievances that the trial court failed to consider her counterclaim and that the judgment of the court below is against the weight of the evidence. Under these grounds, we would evaluate the entire evidence on record to ascertain whether the court below considered the defendant’s counterclaim and whether the judgment as a whole is well grounded on the evidence adduced at the trial. In doing so, we would presume the that decision of the trial court was right on the facts. Consequently, it is the duty of defendant, as appellant, to displace this presumption in order to succeed. See: Ampomah v. Volta River Authority (1989-90) 2 GLR 28, CA at page 35.

One of the bases upon which the judgment of the trial court is being assailed by defendant is the trial Judge’s handling of the allocation of the

 

burden of proof on the parties. Counsel for defendant argues that, following plaintiff’s admission that all lands at Atonsu-Edwenase belong to the Takyiaw Stool except where the Stool has divested itself of all rights to the same by issuance of Allocation Notes properly endorsed by the occupant of the Stool, the burden shifted onto plaintiff to lead credible evidence to prove that he acquired plots numbered 12,13,14, 15 and 17, Kaase Land Fill Road as claimed in the counterclaim, from the Stool. It is the submission of counsel for defendant that plaintiff did not file any reply and defence to the counterclaim and did not also cross-examine defendant on her counterclaim; neither did he lead any evidence on the acquisition of Plot numbers 12,13,14, 15 and 17. Further, counsel submits that as plaintiff admitted that all grants of portions of Atonsu-Edwenase lands by the Takyiaw Stool are evidenced by an allocation note, he bore the evidential burden to tender the allocation notes issued to him at the trial which he failed to do. In counsel’s opinion, the counterclaim is deemed as proved in law and the trial judge erred in giving judgment to the contrary.

With respect to the other plots claimed by plaintiff, counsel submits that the trial Judge’s view that, because the defendant failed to prove that the plaintiff’s allocation note was fraudulent, same is deemed to be genuine, is wrong in law, especially so when no such allocation note was tendered. It is his further submission that, defendant led both oral and documentary evidence to establish that the land claimed by plaintiff had long been allocated by her predecessor to other persons who live on same. With specific reference to Plot No. 20, counsel submits that per the approved layout, it is a refuse dump and cannot be allocated to plaintiff or to anyone else. Again, counsel submits that once defendant had challenged that the lands claimed by the plaintiff on the ground differed from that endorsed on his writ of summons, the burden was on plaintiff to prove that the parcels of land are one and the same but differently described. And, it was not sufficient for plaintiff to state on oath in his evidence-in-chief that both parcels of land are the same. Therefore, so argues counsel, the trial court run into error when it found that “the change of the plot numbers is as a result of the demarcation by the defendant and from the word go the identity of the land has not been in issue”

 

Counsel for defendant continues to argue that, the trial judge again fell in error to have held that defendant caused the demarcation to be made, and at best, defendant could have applied for a composite plan or call a surveyor or the Town and Country Planning Department responsible for the area to prove or disprove this assertion. Short of these, counsel submits that the trial Judge erred by entering judgment for plaintiff and refusing defendant’s counterclaim.

On his part, counsel for plaintiff concedes that plaintiff did not file an amended reply after defendant’s further amended statement of defence, a failure which he argues is not fatal because, by Order 16 rule 3(6) of C.I. 47, plaintiff will be deemed to rely on the previous amended reply filed in answer to defendant’s further amended statement of defence and counterclaim. He then argues that failure to file a reply and defence to defendant’s further amended statement of defence and counterclaim must not be misconstrued as an admission of the facts contained in the counterclaim.

Order 16 rule 3 (3) (a) and 3 (6) of CI 47provide that:

“3) Where an amended defence is served on the plaintiff by a defendant

(a) the plaintiff, if a reply has been filed, whether amended or not, may amend the reply without leave of the Court to respond directly to the defendant's amendment…

(6) Where a party has pleaded to a pleading which is subsequently amended, and served on the party under subrule (1), if the party does not amend the pleading under the foregoing provisions of this rule, the party shall be taken to rely on it in answer to the amended pleading, and Order 11 rule 14 (2) shall have effect in such a case as if the amended pleading had been served at the time when the pleading, before its amendment under subrule (1), was served.”

The arguments of plaintiff’s counsel seem to find favour with us. We observe from the record before us that, on 19 June 2018, defendant amended her earlier statement of defence and counterclaim filed on 7 July 2014. The plaintiff also filed an amended reply on 10 August 2018.

 

Thereafter, defendant again amended her statement of defence and counterclaim on 19 June 2020 but plaintiff did not file any further pleading, i.e. he did not further amend his amended reply filed on 10 August 2018.

In terms of Order 16 rule 3(6) of C.I. 47, supra, plaintiff is taken to rely on the amended reply and defence to counterclaim filed on 10 August 2018 which is at page 150 of the record of appeal. The defence to counterclaim was in general terms thus:

“1. The plaintiff denies the 1st defendant’s counter-claim and maintains the averments in his statement of claim.

2. The Plaintiff says that the 1st defendant is not entitled to her counterclaim”

So, as counsel for defendant rightly points out, the burden of proof of the positive assertions in defendant’s further amended statement of defence and counterclaim rested on her. In respect of plot 18, Boakye Ansah Street and Plot 19, Atonsu Kaase Street, defendant pleaded in paragraph 5 of her further amended statement of defence and counterclaim at page 191 of the appeal record that she does not have any interest in these plots as same were allocated by her predecessor long before she was enstooled. Yet, when she mounted the witness box, she testified per paragraph 7 of her witness statement thus: “I do not know plot numbers 18,19 and 20. I rather know plot 5 and 7 which I sold to the 2nd defendant”. By this piece of evidence, defendant was either being evasive or ruining her credibility. With defendant’s testimony that she does not know these plots, then the evidence of plaintiff and PW1 to the effect that it was PW1 and his team comprising defendant’s uncle George Agyapong and a surveyor by name Kofi Owusu Dwumfour (both deceased), who sold plots 18 and 19 to plaintiff on behalf of the then Occupant of the Takyiaw Stool, Oheneyere Ama Nyantakyiwaa a.k.a. Obaapanin Ama Nyantakyiwaa, carries more weight. The probative value of these pieces of evidence was further enhanced by defendant’s own admission that during the reign of her predecessor, these persons were responsible for the sale of Takyiaw Stool lands on behalf of the stool. We reproduce the cross-examination of defendant by counsel for plaintiff at page 250 of the record of appeal to buttress our view:

“Q. Do you know George Agyapong

A. I know him.

Q. George Agyapong is deceased, do you know that?

A. I know he is deceased.

Q. You see these two people Kofi Owusu Dwumfour and George Agyapong together with a surveyor called Mr. Asante also deceased; they help (sic) Obaapanin Ama Nyantakyiwaa (sic) the sale of Techiwa (sic) Stool lands?

A. They were the one (sic) that helped her. She sent them to show the land whenever somebody came to my grandmother for a land. Thereafter the person comes back for documentation.

Q. And your grandmother normally signed the allocation paper. Is that right?

A. Yes, she signs…”

In our considered opinion, there is justification for the trial Judge’s reliance on the evidence of plaintiff and PW1 as well as defendant’s firm admissions in cross-examination, supra, to make a finding that the plaintiff had proved his case that Plots numbered 18, and 19 were sold to him by PW1 and his team on behalf of the Occupant of the Takyiaw Stool of Atonsu-Edwenase. It stands to reason that, Madam Ama Benewaah Regina Hammond from whom plaintiff purchased Plot No. 20 after the same had been allocated to her by the Takyiaw Stool, also acquired the plot through the procedure admitted by defendant.

On the identity of the plots claimed by the plaintiff, the evidence of PW1 stands tall. PW1 told the court that after he had sold Plots Numbered 18 and 19 to plaintiff on 16 September 2002 and had prepared allocation papers and site plans for him which were later signed by Obaapanin Ama Nyantakyiwaa, plaintiff took possession by depositing trips of sand and molding 3000 cement blocks on the land. Later, PW1 said after the defendant had succeeded Obaapanin Ama Nyantakyiwaa, he saw that the plots had been ploughed and he thought it was the plaintiff who was

 developing the land. PW1 stood his grounds when he was subjected to cross-examination at page 230 of the appeal record as follows:

“Q. The statement at paragraph 8 of your witness statement to the effect that the 2 plots of land you sold to the plaintiff was done on behalf of Nana Ama Nyantakyiwaa is false.

A. What I said is correct.

Q. I am again putting it to you that the statement at paragraph 9 that the allocation papers you prepared for the plaintiff was signed by Obaapanin Ama Takyiwaa is also false.

A. Nana Nyantakyiwaa signed it.

Q. I am again putting it to you that the statement at paragraph 9 that you paid the amount involved to Obaapanin Ama Takyiwaa is also false.

A. It was Opanin Asare who paid the money to Obaapanin Ama Takyiwaa.

Q. I am putting it to you that, the statement is false because no money was paid to Obaapanin Ama Takyiwaa.

A. I disagree with him (sic) otherwise he could not have built on the land.

Q. It is not correct that the plaintiff molded cement blocks and deposited trips of sand and stones on the disputed land.

A. I saw molded blocks, sand and chippings on the land. Just that it was weedy so if you don’t take care, you will not see that there is something on the land.

Q. I am finally putting it to you that, the plaintiff has never acquired any of the disputed lands from the Takyiwaa Stool.

A. He has bought a (sic) land there.”

It is not in the least surprising that counsel for defendant merely “put” or “suggested” to PW1 that his testimony is false. Counsel appeared in fact handicapped as seen in his unsatisfactory attempt to discredit the testimony of PW1. After all, defendant herself said in her evidence in chief that she does not know Plots Nos. 18 and 19 which the plaintiff lays claim to.

 

Still on the identity of the land in dispute, the defendant relied on exhibit “1” and described the land as plots 5 and 7 which she sold to one Hamidu Mahama. It appears to us that defendant was oblivious to the fact that whereas exhibit “1” was made in the year 2015, the plaintiff acquired his land between the years 2002 and 2004. The defendant’s reliance on the plot numbers in exhibit “1” to justify her assertions that the disputed plots are rather numbered 5 and 7 is untenable. What is more, defendant did not even bother to lead evidence on the description of the plots before exhibit “1” was made in 2015.

From our examination of the record, the alleged plots numbered 5 and 7 fit into PW1’s description of plots 18 and19 which he sold to plaintiff on behalf of Takyiaw Stool in 2002. It is so because per the account of PW1, he knows the physical location of the land which he sold to plaintiff as well as the plot numbers. It is highly probable that the plot numbers changed when the Planning Scheme of Atonsu-Edwenase was decoupled from that of Dompoase after plaintiff’s enstoolment on or about the year 2015 as evidenced by the cross-examination of defendant at page 258 of the appeal record as follows:

Q. So exhibit “1” you tendered is a plan of Takyiwa Stool Land. Is that Correct?

A. That is the plan I met.

Q. When was the plan made?

A. I can’t tell the date. It’s the plan my grandmother did and I am also using. When I came, I could not change it.

Q. You caused this plan to be made in 2015 after you ascended the Stool.

A. My grandmother made the plan. It was part of Dompoase Stool plant (sic). It was later operated (sic) for me by the town and country planning. I have not made any changes.

Q. Before you took back the plot in dispute, there was a washing bay on the land.

A. There was no washing bay on the land. It’s in a valley.”

 

It is not uncommon for plot numbers to change after a formal planning scheme of the area has been made. An example is where the official Planning Scheme is made to meet international best practices in land management such as provision for educational & recreational purposes, hospitals, commercial areas, places of worship and the like. In the case at hand, it is highly probable that the Planning Scheme of Atonsu-Edwenase, exhibit “1”, made in July 2015 affected the numbering of plots which had earlier been granted by the defendant’s predecessor such as the plaintiff’s acquisitions which date back to 2002.

Where the work of planning authorities affects some grants, best practices require that those grants are replaced by the grantor. If the only impact on the earlier grant is the new numbering, the necessary adjustments will have to be made by the grantor as regards previous acquisitions. The grantor cannot purport to make new allocations of the same land just because there are new plot numbers on paper. That is a wrong practice which creates confusion and chaos in land transactions!

Next, we touch on the counterclaim. We observe that the trial Judge did not consider defendant’s counterclaim in detail before dismissing the same. Was the dismissal of the counterclaim justified? Our response, yes, and we explain why.

From our earlier analysis and application of Order 16 rule 3(6) of C.I. 47

, it follows that issues were joined on the counterclaim of defendant.

The relevant portions of the defendant’s evidence-in-chief are paragraphs 22, 23 and 24 of the defendant’s witness statement at page 142 of the record, namely:

“22. I wish to state that plot numbers 12,13,14,15 and 17 which are currently occupied by the plaintiff are not his plots. The documents which are covering them were fraudulently procured.

1. 23. The plaintiff could not produce any documents on same when he was asked by the stool.

2. 24. These plots belong to the Takyiaw Stool”

 

On cross-examination, defendant denied that her predecessor sold these plots of land to plaintiff. In response to a question whether plaintiff has houses on the land claimed by defendant, she answered that plaintiff has some foundations on the land. Unexpectedly, defendant turned around to admit that the land in dispute was property acquired by plaintiff from her predecessor. For emphasis, we reproduce the following portion of cross- examination of defendant by counsel for plaintiff at page 259 of the record of appeal:

Q. I am putting to you that the land in dispute was the property acquired by the plaintiff from your predecessors (sic) the life time of Nana Ama Nyantakyiwaa.

A. That is so.

The defendant’s express admission, as captured above, that plaintiff acquired the land in dispute during the life time of her predecessor Nana Ama Nyantakyiwaa dealt a final blow to her case.

In all, the land in dispute includes plots numbered 18,19,20, as well as 12,13,14,15 and 17. The defendant did not qualify her admission and her lawyer did not also re-examine her on this point. The only logical inference is that her admission pertains to all the property in dispute which plaintiff acquired from defendant’s predecessor.

With the above clear admission, the evidential burden did not shift onto plaintiff who is a defendant to the counterclaim, to introduce evidence to the contrary. This admission inured to plaintiff’s advantage in view of the settled position of the law, as espoused in a plethora of cases such as In Re Asere Stool; Nikoi Olai AmontiaIV (substituted by Tafo Amon II)  v. Akotia Oworsika III (substituted by) LaryeaAyiku III (2005-2005) SCGLR 637 at 651, per Dr Twum JSC, which the Supreme Court followed in Boakye v. The Presiding Bishop of the Methodist Church & 3Ors (2021) GHASC 162, that:

“… this type of proof is a salutary rule of evidence based on common sense and expediency. Where the adversary of a party has admitted a fact advantages to the cause of that party, what better evidence does the party need to establish that fact than by relying on his own admission. This is really an example of estoppel by conduct. It is a rule whereby a party is precluded from denying the existence of some state of facts which he had formerly asserted.”

With the learning deduced from the above statement, defendant is estopped from denying that plaintiff acquired all the lands in dispute from defendant’s predecessor, Obaapanin Ama Nyantakyiwaa a.k.a. Oheneyere Ama Nyantakyiwaa Nana Ama Nyantakyiwaa a.k.a. In any case, plaintiff as a defendant to the counterclaim was not under any obligation to testify as the onus probandi was on the counterclaimant. This could be risky, depending on the nature of the pleadings and the evidence adduced by the counterclaimant because the burden of proof may shift. Where the burden of proof shifts onto a defendant to a counterclaim and he does not adduce evidence, either in person or through witnesses, then the counterclaimant would be deemed to have succeeded on the point in issue.

In re Ashalley Botwe Lands; Adjetey Agbosu &Others v. Kotey &Others (2003- 2004) SCGLR 420is one such case which demonstrates this position of the law, albeit from the point of a plaintiff in a case. The rule equally applies to a defendant/counterclaimant who is taken as a plaintiff as regards the counterclaim. In the Judgment of Brobbey JSC in the case referenced above, at pages 464 to 465 of the report, his Lordship explained the effect of sections 11(1) and 14 and similar sections in the Evidence Act, 1975 on burden of proof in the following manner:

“A litigant who is a defendant in a civil case does not need to prove anything; the plaintiff who took the defendant to court has to prove what he claims he is entitled to from the defendant. At the same time, if the court has to make a determination of a fact or of an issue, and that determination depends on evaluation of facts and evidence, the defendant must realize that the determination cannot be made on nothing. If the defendant desires the determination to be made in his favour, then he has a duty to help his own cause or case by adducing before the court such facts or evidence that will induce the determination to be made in his favour…”

 

In the case before us, the evidential burden did not shift onto plaintiff, being the defendant to the counterclaim, as we have already established.

In the worst-case scenario, the presumption created under section 48 of NRCD 323

would work in favour of plaintiff. It states thus:

“48. Ownership

1. 1. The things which a person possesses are presumed to be owned by that person.

2.

A person who exercises acts of ownership over property is presumed to be the owner of it” (Emphasis added)

The rebuttable presumption created by section 48 of NRCD 323informed the authoritative statement of Adade JSC in the case of Nasali v. Addy [1987-88] 1 GLR143at page 149 as follows:

“As stated earlier, the plaintiff, to succeed, must prove a title which is superior to that of the co-defendant. As far as the latter is concerned, he can sit tight on the fact that he is in possession — a fact which cannot be gainsaid. He may refuse to lead any evidence at all beyond the evidence of possession and challenge the plaintiff to prove a superior title if she can.”

The above statement is an expression of the oft quoted statement that, possession is nine tenths of ownership and that a person in possession is entitled to the law’s protection against the whole world, save one with a superior title, illustrated in cases like Osei (substituted by) Gillard v. Korang [2013-2014] 1 SCGLR 221; Barko vMustapha [1964] GLR 78 SC; and Summey v. Yohuno [1962] 1 GLR 160SC.

The defendant/counterclaimant admitted that plaintiff is in possession of the land in dispute and has even constructed some foundations thereon. The plaintiff on his part gave evidence that he has houses thereon. Whether the plaintiff’s structures are fully constructed houses or foundations only, he is a person in possession of the disputed land and the presumption created by section 48 of NRCD 323, supra, will operate in his favour. This presumption is however rebuttable.

It is our thinking that the defendant against whom this presumption operated could not displace same, especially so when her final answer under cross-examination was an admission of plaintiff’s acquisition of the land in dispute from her predecessor.

On the facts and evidence before us, it is beyond argument that the nemo dat quod non habet principle is applicable. The application of this principle was expressly stated in the case of Seidu Mohammed v. Saanbaye Kangberee (2012) 2 SCGLR1182(holding 2) thus:

“The principle of nemo dat quod non habet would operate ruthlessly and by it, an owner of land could only convey title owned by him at the material time of the conveyance…”

The case of Aboa v. Keelson; Yima v. Keelson, Civil Appeal No. J4/11/2010,dated 16 March 2011, also clarifies the nemo dat quod non habet principle. The Supreme Court delivered itself thus:

“It can thus be safely concluded that, the principle nemo dat quod non habet applies whenever an owner of land who had previously divested himself of title in the land previously owned by him to another person, attempts by a subsequent transaction to convey title to the new person in respect of the same land cannot be valid. This is because an owner of land can only convey what he owns, and having already divested himself of title, the new occupant of the Begoro stool Nana Antwi Awuah III cannot revoke what his predecessor had done. Exhibit I is therefore a worthless document.”

See: Dora Boateng v. McKeown Investment Limited (2020) DLSC 8525at page 19, per Amegatcher, JSC.

In effect, the Takyiaw Stool of Atonsu- Edwenase could only make a grant of any portion of its lands once. After the first grant, the stool has no

interest therein to make a second grant to another person. If the plot numbers changed by virtue of the decoupling of Dompoase lands from Atonsu-Edwenase lands in the planning scheme, it is incumbent on the current occupant of the Stool to regularize what her predecessor did, in terms of the approved planning scheme made in July 2015 and not to purport to make new grants of the same land under the guise of new numbering. Any purported subsequent grants of the same land cannot be valid and any document issued to cover same is worthless.

We also say, that the Takyiaw Stool cannot purport to re-enter land already granted by the defendant’s predecessor without due process. The law is settled, that every re-entry must be backed by a court action, unless the grantee voluntarily gives vacant possession. It appears to us that, defendant herein adopted a very simplistic view of re-entry by her answers under cross-examination at page 257 of the record thus:

“Q. You will agree with me that the plaintiff is not the only person you have dealt with and taken over the land since you ascended the stool.

A. Whoever flaunts the lane, the stool will take back its land…”

Without going through due process, which include giving notice to the grantee to remedy the breach complained of and taking action in court for a formal order to be made or for the grantee to apply for the appropriate relief, it is absolutely wrong for a grantor to re-enter land already granted to a person, under the guise of exercising a right of re-entry.

There is no merit in grounds B and E of the appeal. These grounds of appeal accordingly fail.

GROUND F

“The trial Judge’s finding that the defendant had trespassed onto the plaintiff ’s land is not borne out of the record”

The trial Judge after examining all the evidence before her, concluded at page 301 of the record that, defendant trespassed on plaintiff’s land whenshe re-entered the land. She then awarded GH₵10,000.00 as damages for trespass against defendant.

The plaint of defendant under this ground of appeal is that, there is no evidence on record to support the above finding. Counsel for defendant submits that in the absence of physical interference by defendant, she cannot be liable for trespass. He argues further that even if defendant granted plaintiff’s land to another person, that would amount to an interference with her possessory rights but not an act of trespass. It is on these bases that counsel urges us to set aside the finding of the trial Judge together with the award of damages for trespass.

Expressing a contrary opinion, counsel for plaintiff submits that defendant’s admission under cross-examination that she allocated plots 5 and 7 to Hamidu Mahama Sorogo amounts to a breach of plaintiff’s right of enjoyment to his lawfully acquired plots, which entitled plaintiff to an award of general damages.

We note that relief 3 endorsed on plaintiff’s amended writ of summons is “damages for trespass”. This relief is therefore in relation to plaintiff’s plots numbered 18,19 and 20.

In the Dictionary of Law by L.B. Curzon, ‘Trespass to land’ is defined as “unjustifiable, direct and immediate interference (of an intentional or negligent nature) with another person’s possession of land.”

It settled law that trespass is actionable per se without proof of damage. In order to succeed, there must be evidence that defendant unjustifiably and directly interfered with plaintiff’s land. Without proof of physical interference, it will be near impossible to establish an act of trespass. In this light, counsel for defendant could be right in his argument that no evidence was led to show that defendant physically interfered with plaintiff’s enjoyment of plots numbered 18,19 and 20.

Will plaintiff’s evidence that he was in possession and quiet enjoyment of the land until defendant sold the same to a third party suffice? What of the evidence of PW1 that he saw that the land had been ploughed and when he inquired, he was informed that it was defendant who had sold the plots to another person? None of these pieces of evidence establishes on the balance of probabilities that defendant physically went onto the land. It may well be that it was “the second purchaser” who ploughed the land. We think physical interference by defendant could not be proved so as to sustain the finding of trespass to land.

However, we are of the considered opinion that the evidence of plaintiff sufficiently establishes that defendant’s action in selling the land claimed by plaintiff to another person, amounted to an interference with plaintiff’s title and possession of his property. This also entitles plaintiff to an award of general damages. The position of the law is that, general damages need not be proved as it flows from every infringement of an absolute right. The catch is that, only nominal damages may be awarded. But then, it must be noted that “nominal damages” does not mean a paltry sum. The quantum would depend on the nature of the breach.

This court has power to amend plaintiff’s writ of summons to include a claim for general damages for interference with his title, so as to do substantial justice, and we so amend the writ.

We find merit in this ground of appeal. We therefore set aside the finding and award of damages for trespass together with the award of GH₵10,000.00. In its stead, we award general damages of GH₵15,000.00 against defendant for the interference with plaintiff’s possession and title to the land in dispute.

CONCLUSION

In conclusion, we find and hold that, save the erroneous admission of exhibits “A”, “A1” and “B”, which has not occasioned any substantial miscarriage of justice; the wrongful exclusion of exhibit “1” which we have reinstated in this Judgment and reviewed, as well as the award of damages for trespass which we have set aside, the Judgment of the court below is sound in law and amply supported by the evidence adduced at the trial.

We allow the appeal in part by the exclusion of exhibits “A’, “A1” & “B”; the inclusion of exhibit “1” and the setting aside of the award of GH₵10,000.00 damages for trespass. We however award GH₵15,000.00 damages against defendant for the wrongful interference with plaintiff’s

 possession and title to the land in dispute.

Cost of GHC20,000.00 is awarded in favour of the Respondent against Appellant.