Sloateng & Company Ltd v National Sports Authority

OWUSU-DAPAA JA:

INTRODUCTION

[1]. My Lords, the appeal before us presents a fundamental legal conundrum—one that sits at the uneasy intersection between textual fidelity to statutory form and the higher duty of the courts to do substantial justice. Too often, courts are confronted with situations where the formal appearance of legality—particularly a registered land title—conceals an underlying injustice. In such cases, the

 

mechanical invocation of Statutory Provisions, such as those under the Land Title Registration Law, 1986 (PNDCL 152), has been used as a shield for inequity, enabling those with later but better- documentary claims to override the rights of those with longstanding possession and proven ownership. Yet our judicial oath does not bind us to unthinking literalism, but to the pursuit of justice through the conscientious application of law to fact. The courts must therefore guard against blind fidelity to text, especially where the text is manipulated to achieve what equity would plainly reject.

[2]. The present appeal illustrates that tension vividly. It arises from the judgment of the High Court (Land Division), Accra, delivered on 21stDecember 2020, which dismissed the Plaintiff’s claim to House No. 156, Ringway Estate, Osu, and entered judgment for the Defendant on its counterclaim. The High Court granted a declaration of title in favour of the Defendant and made consequential orders setting aside the Plaintiff’s lease and assignment, together with a direction to the Lands Commission to cancel the Plaintiff’s registration. The Plaintiff now challenges that decision before this Court. For clarity and consistency, the parties shall retain their original designations before the trial court: the Appellant shall be referred to herein as the Plaintiff, and the Respondent as the Defendant. The task before this Court, therefore, is not simply to construe the literal reach of PNDCL 152 or any other statutory instrument, but to determine whether, in the peculiar circumstances of this case, justice is best served by giving primacy to the form of registration or to the substance of right and possession. It is in resolving that delicate balance—between the letter of the law and the conscience of equity—that this appeal must find its answer.

[3].The Plaintiff’s case was that it lawfully acquired House No. 156, Ringway Estate, Osu, Accra (“the disputed property”) from Top Heights Capital Management Limited by a Deed of Assignment dated 20thFebruary 2018 (Exhibit A). Top Heights, in turn, had obtained a sub-lease of the same property from the State Housing Company Limited (“SHC”) on 12thDecember 2016 (Exhibit B), the SHC being the original owner of the property. Prior to the assignment, SHC gave its written consent dated 16thFebruary 2018 authorising the transfer to the Plaintiff (Exhibits C and D).

[4]. The Plaintiff pleaded that at the time of acquisition the premises were vacant, but that subsequently some unknown persons

 

commenced renovation works and refused to vacate when asked. Upon inquiry, Plaintiff discovered that the Defendant – National Sports Authority (NSA) – had caused the renovations and was seeking to take possession. The Plaintiff maintained that the Defendant had no title or lawful interest, and that any prior occupation by its officers did not amount to ownership. It further averred that it had since been issued a Land Title Certificate over the property on 4thFebruary 2019 (Exhibit G). Accordingly, the Plaintiff claimed:

a. A declaration of title to House No. 156;

b. Recovery of possession;

c. Damages for trespass; and

d. A perpetual injunction restraining the Defendant, its agents or assigns from interfering with the property.

In its reply and defence to counterclaim, the Plaintiff denied that the Defendant purchased the property or had any valid title, insisting that the Defendant’s long occupation was at most by licence or allocation and that SHC validly leased and consented to the subsequent assignment to it.

[5]. By its Amended Statement of Defence and counterclaim, the Defendant denied the Plaintiff’s ownership and asserted that it had been in lawful and uninterrupted possession of the disputed property and its adjoining House No. 157 since 1959/1960, when itwas then known as the Ghana Amateur Sports Council. The Defendant pleaded that in September 1959 it applied to the Ghana Housing Corporation (now SHC) for the purchase of two houses, paid the full price of

£6,800 for both, and was duly allocated Houses 156 and 157. SHC thereafter wrote to the Electricity and Water authorities confirming that the Defendant was purchasing the properties and authorising the connection of utilities in its name.

[6].The Defendant maintained that from 1960 it and its officers had occupied, maintained and paid ground rent and utility bills for the property, and that SHC had consistently acknowledged its ownership in correspondence and site-inspection reports extending to 2016. It contended that SHC therefore had no legal capacity to lease the property anew to Top Heights in 2016 or to consent to any assignment to the Plaintiff in 2018. The Defendant pleaded that the

 

Plaintiff and its grantor took their purported interests with notice of its occupation and were not bona fide purchasers without notice. In its counterclaim, the Defendant sought:

a. A declaration of title to House No. 156, Ringway Estate;

b. Declarations that the purported lease to Top Heights and assignment to the Plaintiff are nullities;

c. Orders setting them aside;

d. An order directing the Lands Commission to cancel the Plaintiff’s registered title; and

e. Costs.

The Defendant’s case, therefore, rested on prior purchase, possession, and continuous occupation since 1959, rendering the Plaintiff’s later leasehold and registration void under the maxim nemo dat quod nonhabet.

Summary of the High Court’s Judgment

[7]. The High Court dismissed the Plaintiff’s claim in its entirety and entered judgment for the Defendant on its counterclaim. The learned trial judge found, on the evidence, that the Defendant (National Sports Authority) had been in uninterrupted occupation of House No. 156, Ringway Estate since 1960, following a transaction in which its predecessor, the Ghana Amateur Sports Council, paid £6,800 to the then Ghana Housing Corporation for two houses, Nos. 156 and 157. She accepted documentary proof of that purchase—letters exchanged in 1959 and 1960 acknowledging payment, allocation, and permission to connect water and electricity—and noted that successive officers of the Defendant had resided in the premises, paying rent through the Controller and Accountant-General’s Department. Inspection reports and correspondence from State Housing Company (SHC) up to 2016 confirmed the Defendant’s occupation and payment of ground rent.

[8]. The court held that although no formal lease was executed in 1959/60, the combination of payment of the full purchase price, SHC’s acknowledgments, and continuous possession created an interest beyond a mere equitable right—a legal interest recognised under Section 6 of the State Housing Corporation (Ejectment) Act 1970 (Act 322), which deems agreements for letting to be leases.

 

Consequently, SHC had no subsisting estate capable of being leased again in 2016 to Top Heights Capital Management Ltd or assigned to the Plaintiff in 2018. Applying the principle of nemo dat quod non habet, the court held that SHC “could not give what it no longer had.” The judge further held that the Plaintiff was never in possession: its own Exhibits (particularly the Notice to Vacate dated 31stMay 2018) and the testimony of PW1, who admitted not having keys to the property and discovering that the Defendant was in occupation, proved that fact. Accordingly, the claim for trespass failed since trespass is an interference with possession, and the Plaintiff had none.

[9]. Turning to the Plaintiff’s Land Title Certificate obtained on 4th February 2019, the court ruled that registration did not confer absolute title, citing WESTERN HARDWOOD ENTERPRISE LTD V WEST AFRICAENTERPRISE LTD AND AMUZU V OKLIKAH.

Because the Plaintiff registered while the action was pending and with knowledge of the Defendant’s possession, the registration was tainted by “badges of fraud” and secrecy and could not defeat the Defendant’s prior interest. She invoked Section 24(12) of the Land Registry Act 1962 (Act 122) and equitable doctrines of notice and fraud to support cancellation.

[10]. On the competing titles, the judge concluded that the Defendant’s long, uncontested possession and earlier transaction gave it better title, whereas the Plaintiff’s lease and assignment were void ab initio for want of capacity in SHC. She accordingly dismissed the Plaintiff’s claims, upheld the Defendant’s counterclaim, declared title in the Defendant, set aside the 2016 lease to Top Heights and the 2018 assignment to Sloateng, directed the Lands Commission to cancel the Plaintiff’s registration, and awarded costs of GH¢5,000 against the Plaintiff.

GROUNDS OF APPEAL

[11].The grounds of appeal as originally formulated by the Plaintiff/ Appellant are set out in the Notice of Appeal filed on 22ndJanuary 2021 (appearing at pages 297 to 298 of the Record of Appeal). They read as follows:

i. The judgment is against the weight of evidence.

ii. The learned trial judge erred in law when she declared title of the disputed property (H/No. 156, Ringway Estate, Accra) in the

 

Defendant/Respondent when the Defendant/Respondent failed to prove its root of title and mode of acquisition, and same has occasioned a substantial miscarriage of justice to the Plaintiff/ Appellant.

iii. The learned trial judge erred in law when she declared title of the disputed property in the Defendant/Respondent when the Defendant/Respondent failed to prove the nature of interest it has in the disputed property, and same has occasioned a substantial miscarriage of justice to the Plaintiff/Appellant.

iv. The learned trial judge erred in law when she held that the Plaintiff/Appellant had perpetuated fraud on the Defendant/Respondent when same was neither pleaded by the Defendant/Respondent nor was it patent on the face of record, and same has occasioned a substantial miscarriage of justice to the Plaintiff/Appellant.

v. The learned trial judge erred in law when she failed to declare title of the disputed property in the Plaintiff/Appellant when the Plaintiff was able to establish its root of title, mode of acquisition and the interest it acquired in the disputed property, and same has occasioned a substantial miscarriage of justice to the Plaintiff/ Appellant.

vi. The learned trial judge erred in law when she declared title of the disputed property in the Defendant when there was no contract for sale of land between the Defendant and State Housing Company, and same has occasioned substantial miscarriage of justice to the Plaintiff/Appellant herein.

vii. The learned trial judge erred in law when she failed to follow the Supreme Court decision in the case of Oppong v Anarfi(January 2012) 36 M.L.R.G. 127 @ 133 S.C., which held that receipts are not instruments of transfer of interest in land, and same has occasioned a substantial miscarriage of justice to the Plaintiff/Appellant herein.

viii. The learned trial judge erred in law when she failed to follow the Court of Appeal decision in GRACE KAKI ASEM V FRANCIS AGYEMAN & ANOR (November 18, 2019) Part 149 (2019) 149

GMJ 58 @ 64–65, which held that the Plaintiff in that case continued to hold legal title to the said land and in that regard had capacity to sue regarding it, even though she admitted having sold the land to the Defendant, because she had not executed a documenttransferring title in same to the Defendant; and same has occasioned substantial miscarriage of justice to the Plaintiff/Appellant herein.

ix. The learned trial judge erred in law when she held that the Defendant has established interest that is beyond an equitable interest, when the Defendant/Respondent herein was not able to establish any legal interest in the disputed property, and same has occasioned substantial miscarriage of justice to the Plaintiff/ Appellant herein.

APPELLATE REVIEW STANDARDS AND COMPETENCE OF GROUNDS OF APPEAL

[12]. This appeal being a first appeal to this Court is, by law, a rehearing on both facts and law. Under Rule 8(1) of the Court of Appeal Rules, 1997 (C.I. 19), the Court of Appeal is required to subject the entire record of proceedings to a fresh and exhaustive scrutiny, evaluating both the documentary and oral evidence as well as the applicable principles of law, and then come to its own conclusion on whether the decision of the trial court was right. While doing so, the Appellate Court must remember that the trial judge had the unique advantage of seeing and hearing the witnesses and observing their demeanour.

[13]. Where an Appellant raises the omnibus ground that the judgment is “against the weight of evidence,” the duty of the A ppellate Court is clear. As held in DJIN V MUSAH BAAKO [2007–2008] SCGLR 686 and reaffirmed in SARPOR V BOSOMPRAH (J4/55/2020, SC, 2NDDECEMBER 2020), the Appellate Court must examine the totality of the evidence on record and determine whether, on a balance of probabilities, the trial court’s findings were justified. The burden is, however, on the Appellant to point to specific pieces of evidence which were wrongly evaluated or disregarded by the trial court and which, if properly considered, could have led to a different result.

[14].The principle was reiterated in ATUGUBA & ASSOCIATES V SCIPION CAPITAL (UK) LTD (CIVIL APPEAL NO. J4/04/2019,

JUDGMENT OF 3RDAPRIL 2019, SC), where Amegatcher JSC (as he then was) reminded counsel that although the rules allow the omnibus ground, it is not a licence for vagueness and that it is always better to identify the specific findings challenged. The Court also restated in KOGLEX LTD (NO. 2) V FIELD [2000] SCGLR 175 that the appellate court will interfere with findings of fact only where they are notsupported by the evidence, or where the reasons given are unsatisfactory, or where the findings are based on a wrong proposition of law. On questions of law, the appellate court is entitled to substitute its own view if the trial court misapplied or failed to apply the relevant principle — as stated by Dr. Twum JSC in BROWN V QUARSHIGAH [2003–2004] SCGLR 930:

“The jurisdiction of an appellate court is available but the rule of practice in our courts is that the Appellant must invoke it by filing appropriate groundsof appeal, distinguishing the so-called omnibus ground from misdirection or errors of law,challenge to jurisdiction or capacity, etc. A party who only gives notice that he intends to rely on the omnibus ground should not be permitted to argue points of law. The duty of the appellate court when the omnibus ground is invoked is to review the evidence led at the trial, not to consider new questions of law that were never raised below.”

[15]. In the present appeal, nine (9) grounds were filed by the Appellant. These may be grouped and considered under three categories. The first is the general or omnibus ground, which asserts that the judgment is against the weight of evidence. This ground is a recognised general ground under Rule 8(5) of C.I. 19, and it is properly before this Court. The second category comprises the substantive errors of law and fact alleged in grounds 2, 3, 5, 6, 7, 8 and 9. These grounds challenged the learned trial judge’s decision to declare title in the Defendant/Respondent; the finding that the Respondent’s interest was “beyond equitable”; and the failure to follow decisions such as OPPONG V ANARFI(January 2012, 36 MLRG 127) and GRACE KAKI ASEM V FRANCIS AGYEMAN & ANOR[2019]149 GMJ 58. These are competent grounds of appeal because they identify specific findings of fact and propositions of law said to be erroneous. They are neither vague nor general, and they sufficiently apprise the Respondent of the complaints to be met.

Though repetitive in substance, they may conveniently be argued together under one composite issue — namely, whether the trial court erred in its evaluation of the competing titles and in the application of the law relating to transfer of interests in land and registration. The third category is ground 4, which complains that the learned trial judge erred in holding that the Plaintiff/Appellant had perpetuated fraud on the Defendant/Respondent when no such allegation was pleaded or evident on the record. This ground is also competent. It identifies a specific finding of fact and law — namely, the trial court’s resort to fraud — which the Appellant challenges as having been made without evidential or procedural basis. The ground raises a question of law under Order 11 Rule 8(2) of C.I. 47, which requires fraud to be specifically pleaded and proved.

[16].Having examined the notice and grounds of appeal against the requirements of Rule 8(4) and (5) of C.I. 19, I am satisfied that the appeal is procedurally sound. The grounds set forth are concise, refer to distinct heads of complaint, and are capable of supporting appellate arguments. Although prolix and overlapping, they are not incurably vague. They collectively raise the central questions whether the trial court properly assessed the evidence on ownership, possession, and registration; whether it rightly applied the nemo dat quod non habet principle and Section 6 of the State Housing Corporation (Ejectment) Act, 1970 (Act 322); and whether its reference to fraud was justified. All the grounds therefore meet the test of competence under the Rules, and the appeal is properly before this Court for determination.

ANALYSIS AND DETERMINATION OF THE APPEAL

[17].The appeal is contingent upon four principal issues: (i) SHC’s legal capacity to lease or grant consent during 2016–2018; (ii) the characterization and precedence of the Respondent’s interest; (iii) the implications of registration and notice; and (iv) whether fraud was a necessary element and, if so, whether it was established.

1) SHC’s capacity to lease/consent in 2016–2018

[18].The Plaintiff argues that SHC was the original owner and, in 2016, validly granted a 30-year lease to Top Heights Capital Management Ltd (THCML) (Exhibit. B) and, in 2018, validly consented to the assignment to Sloateng (Exhibits. C–D). On this footing, the Plaintiff’s Root of Title is secure. It urges that historic “allocation” or receipts do not pass title and that, absent a formal conveyance to NSA, SHC’s re-grant was competent; it cites OPPONG V ANARFI (receipts are not instruments of transfer) and GRACE KAKI ASEM V AGYEMAN (legal title remains with transfer or until written transfer), pressing that mere possession cannot bar SHC’s later lease and consent.

 

[18].A contrario, Counsel for Defendant submitted that SHC had nothing left to grant in 2016–2018. By 1959/60 the Defendant’s predecessor (Ghana Amateur Sports Council) paid for Houses 156 & 157, was put intopossession, and SHC contemporaneously and subsequently acknowledged that status by various documents including letters to utilities (ECG); inspection minutes; ground-rent demands/receipts. Counsel added that under Act 322, once the corporation has let/allocated and put a party in occupation, re-entry must follow due process; there is no evidence of a lawful re-entry or surrender. Hence SHC lacked capacity to re-grant in 2016 or to consent to a 2018 assignment to defeat the Respondent’s pre-existing interest.

ANALYSIS

[20].The Defendant’s evidential narrative rested heavily on historic correspondence and official records demonstrating continuous occupation and ownership acknowledgment by the State Housing Company (SHC) spanning over six decades. It produced, through DW1 and DW2, several primary documents originating from the period between 1959 and 2016.

The first strand of evidence comprised correspondence between the GhanaAmateur Sports Council (GASC)—the Respondent’s predecessor—and the then Ghana Housing Corporation (now SHC). In a letter dated 22ndSeptember 1959, GASC enclosed a cheque for

£G6,800 as the full purchase price “for two houses of the type DH 121 E.” This was followed by SHC’s reply dated 28thSeptember 1959, acknowledging receipt of the money and provisionally allocating Houses Nos. 156 and 157 at Ringway Estate, each valued at £G3,400. A further letter of 2ndNovember 1960 from SHC to the Electricity and Water Departments confirmed that the Ghana Amateur Sports Council was purchasing the two properties and authorised the Council to negotiate directly for electricity and water connections in its name. These early communications were relied on to show that the Respondent’s predecessor had fully paid for the properties and had been placed in lawful possession with SHC’s knowledge and consent.

[21]. The second line of proof related to the Defendant’s occupation and maintenance of the property through its staff. Utility bills from the Ghana Water Company and the Electricity Company bore the names of officers of the National Sports Authority, reflecting continuous usage of the premises by the Authority’s personnel. In addition, the Respondent tendered payroll records of its Estate Manager covering the years 2009 to 2014, which revealed monthly rent deductions processed through the Controller and Accountant- General’s Department for House No. 156, further evidencing official occupation sanctioned by the State.

[22]. Finally, the Respondent called Mr Edward Yaw Awuah, Head of Estates at SHC, under subpoena. He produced the SHC estate file on House No. 156, which contained inspection reports and internal memoranda. Among these were a 2013/2014 site inspection report confirming that the property was still occupied by the Defendant’s officers and a minute dated 24thMarch 2016 explicitly recording that “Plot 156, Ringway Estate, belongs to the Ghana Sports Council.” These internal documents, generated long after the initial transaction, were considered by the High Court to be strong admissions by SHC that the Respondent had remained the lawful occupant and effective owner of the disputed property. Taken together, this unbroken paper trail—from the 1959 purchase correspondence through decades of utility transactions, rent, and inspection records—was accepted by the trial court as proving that the Defendant’s possession and proprietary interest had been consistently recognised by SHC and had never been lawfully terminated.His evidence-in-chief and cross-examination contained the following admissions recorded by the trial court:

The witness produced SHC’s estate file for House No. 156 and stated that:“the word ‘purchase’ as used in Exhibit 2 meant that the National Sports Authority bought properties Nos. 156 and 157 but no lease was made out to the Authority.” He tendered an Allocation L etter of 31stMay 1960 confirming that the houses had been allocated for the Authority’s personal occupation only.

[23].When questioned further, he explained that a 1972 letter from SHC to the Water and Sewerage Corporation directed that water-rate demands be sent to the Sports Council as purchaser of House No.156, and that a subsequent site-inspection report recorded that “properties 156 and 157 belong to the Ghana Sports Council.” He added that SHC’s demand notices and receipts for ground rent spanned 1960 to 2000 and conceded that “the Defendant has been exercising control over the disputed property since 1960.”In cross-examination he candidly stated: “There is no Lease A greement between the Defendant and State Housing Company, and there was no Contract of Sale between them.” He nonetheless admitted that SHC had later leased the same property to Top Heights Capital Management Ltd. in 2016 and consented to its assignment in 2018 while the Authority still retained the keys and occupation.

[24].Equally noteworthy is the viva voce evidence of DW1 – Mr Richard Abankwah-Yeboah(Estate Manager, National Sports Authority). During cross-examination on 26thMay 2020, the exchange proceeded thus:

“Q: I am putting it to you that the disputed property is owned by the Plaintiff, havingsecured a land-title certificate covering same.

A: As far as we are concerned, the subject property has been in our possession, so we own the property. Since 1960 our officers have been in possession up till date.

Q: I am further suggesting to you that, in the course of registering title to the disputed land by the Plaintiff, there was a publication in the newspapers and there was no objection to the said registration from any quarter, includingtheDefendant.

A: We were not aware of any such publications.

Q: As you sit here, are you aware that the disputed property is vacant?

A: As I sit here, our officers are occupying the property, and we are in possession of the keys to the property

[25].These answers reaffirmed the Respondent’s claim of continuous possession since 1960 and showed that, even after the former Estate Manager’s retirement, officers of the Authority remained in occupation.These exchanges, taken together, provided the evidential foundation on which the High Court accepted thatthe Respondenthad been in uninterrupted occupation since 1960 and that SHC’s later lease and consent in 2016 to 2018 were made while the Authority remained in possession.

[26].The Plaintiff’s own Root of Title is not in doubt. The Plaintiff’s documentary case was built upon a chain of formal instruments originating from the State Housing Company (SHC) and its grantee, Top Heights Capital Management Limited (THCML). Central to its claim was the Deed of Assignment, tendered as “Exhibit A”, executed on 20thFebruary 2018 between THCML and the Appellant, Sloateng & Company Limited. Under that deed, THCML, described as “assignor,” transferred to Sloateng, as “assignee,” the unexpired residue of a thirty-year lease in consideration of GH¢400,000, the assignment to take effect from 20thMarch 2017. The document was accompanied by a Survey Plan clearly delineating the property boundaries at Ringway Estate, Accra.

[27].The root of that assignment was the earlier lease agreement between SHC and THCML, admitted as “Exhibit B”, dated 12th December 2016, for a term of thirty years commencing from 22nd November 2016. The lease contained a notable clause 2.6, which prohibited the lessee from assigning or transferring the property within the first five years without first offering to assign it back to SHC. The recitals also expressly stated that the lessee was “adequately informed about the encumbrance on the land” and had agreed to assume responsibility for it. These two clauses later featured prominently in the Respondent’s challenge to the validity of the Appellant’s title.

[28].To regularise the transfer from THCML to Sloateng, the Plaintiff relied on SHC’s written consent, tendered as “Exhibit C”, dated 16th February2018,authorising the assignment of House No. 156, Ringway Estate, from THCML to the Plaintiff. A covering letter from SHC, tendered as “Exhibit D”, accompanied the consent. The trial court, however, noted that the sealed original of the consent was not produced and therefore admitted these exhibits “for what they were worth.” In support of its factual assertions, the Plaintiff produced a seriesof photographs marked “Exhibit E”, showing ongoing renovations at the property, with a polytank and satellite dish visible on the premises. These images were intended to depict the state of the property at the time of acquisition and the alleged trespass by the Defendant.

[29]. The Plaintiff also tendered “Exhibit F”, a Notice to Vacate dated 31st May 2018, addressed simply to “the Occupier” of House No.

156, Ringway Estate. This notice directed the unnamed occupant to vacate the premises within three months and formed the basis of the Plaintiff’s contention that the Defendant was unlawfully in possession. Finally, the Plaintiff relied on its Land Title Certificate, admitted as “Exhibit G”,issued on 4thFebruary 2019 by the Lands Commission in Sloateng’s name.The certificate confirmed registration of Sloateng as lessee for the unexpired residue of the 30-year term granted in 2016. Notably, thisregistration occurred pendente lite, several months after the writ initiating the suit had been filed. These seven exhibits together comprised the evidentiary foundation of the Plaintiff’s case, portraying a seamless chain of title from SHC to THCML and ultimately to Sloateng.

[30]. That entire chain of instruments forming the Plaintiff’s asserted Root of Title ultimately depends upon the residual capacity of the State Housing Company (SHC) to convey any subsisting interest in the disputed property in 2016 to 2018. On the undisputed record, the Respondent’s evidence establishes that as far back as 1959 to 1960, the Ghana Amateur Sports Council—the Respondent’s predecessor—had fully paid for the two Ringway Estate houses, had been placed in possession, and had been continuously recognised by SHC throughcorrespondence, ground-rent demands and inspection reports extending into 2016. There is no evidence that SHC ever effected a lawful re-entry or repossession pursuant to statute or otherwise before executing the 2016 lease to Top Heights Capital Management Ltd. or the 2018 consent to assign to the Appellant.

[31]. In these circumstances, SHC could not have conveyed in 2016 or 2018 an unencumbered leasehold estate superior to the Respondent’s subsisting possessory and proprietary interest. To hold otherwise would permit SHC to derogate from its own earlier grant and to defeat vested rights by unilateral re-allocation, a course the law will not countenance. As the High Court rightly observed, Section 6 of the StateHousing Corporation (Ejectment) Act 1970 (Act 322) deems even informal lettings to be leases, and the statute requires re-entry only through the procedures it prescribes. The learned trial judge’s reasoning therefore accords with the settled policy of the law against self-help re-grants, affirmed in decisions such as WESTERN HARDWOOD ENTERPRISES LTD V WEST AFRICAN ENTERPRISES LTD[1998–99] SCGLR 105, which emphasis that a landlord seeking to repossess must proceed by action and not by unilateral conveyance.

Section 6 of the State Housing Corporation (Ejectment) Act, 1970 (Act 322), relied upon by the Defendant in this case, provides that:

“In this Act, ‘lease’ includes any agreement for the letting of any premises whether oral or otherwise.”

This definition was invoked by the Respondent to argue that, even if no formal lease had been executed between the State Housing Company (SHC) and the National Sports Authority in 1959/60, the long-standing arrangement by which SHC accepted payment, placed the Respondent in possession, and continued to collect rent for decades was deemed by law to constitute a lease. Consequently, under Act 322, SHC could not lawfully re-enter or re-grant the property in 2016 without first complying with the statutory procedure for repossession. I have not legitimate basis to disagree with the erudite argument by Counsel for Defendant on this point.

The fact that lease is given expansive and liberal meaning under Act 322 to encapsulate even oral grant or agreement reinforces the compelling impression gathered from configuration of evidence on record that some tenants or lessees or purchasers including instant Defendant who had their grant or allocation long ago (over fifty years) may not have documents in formal sense of lease.

It bears emphasis that under Act 322 a person who refuses to vacate premises commit an offence. I have painstakingly reviewed the record and have not come across any notice of ejectment served on Defendant by SHC prior to the purported sublease and assignment at the centre of instant controversy.

[32]. Also, in WESTERN HARDWOOD ENTERPRISES LTD V WEST AFRICAN ENTERPRISES LTD (supra) the Supreme Court in Holding 4 stated:

“Section 29 of the Conveyancing Decree, 1973 (NRCD 175), required that a lessee be served with notice of the breach of any covenant in the lease complained of, and must have knowledge of the fact that such notice had been served before a right of entry could be exercised. Furthermore the enforceability of the re-entry should have been by action or otherwise and by Section 30(1) … the lessee might

… apply to the court for relief. It meanttherefore that the Apowa Stool could only have legally divested the Plaintiff of its lease and resold the property to Western Hardwood by action in court. The purported lease of the property to Western Hardwood under the circumstances was therefore illegal and unenforceable.”

33. On this analysis, the Plaintiff’s documentary chain of title cannot survive the absence of SHC’s legal capacity at the time of its purported lease and consent. The first issue formulated for determination of this appeal is accordingly resolved against the Plaintiff as SHC lacked capacity to re-grant in 2016 or consent in 2018 so as to defeat the Defendant’s pre-existing interest.I am satisfied that the conclusion of the trial court on this aspect of the matter in substance is in tandem with our analysis and does not warrant interference by appellate court. Indeed, the learned trial judge held that SHC’s subsequent transactions were void for want of capacity, and stressed that “the Defendant did not just part perform its part of the contract but fully performed by paying the full purchase price… and has been in possession since… [T]his case ought to fall under the exception to the requirement for writing…” and applied the nemo dat rule to conclude that SHC had nothing to give in 2016/2018. She thereforerightly set aside the 2016 lease and 2018 assignment.

NATURE AND PRIORITY OF THE DEFENDANT’S INTEREST

[34].On the question of the nature and priority of the Respondent’s interest, the Appellant argued forcefully that the Respondent had failed to prove any legal estate in the disputed property. It contended that the documents relied upon by the Respondent—namely, the 1959 allocation letters, correspondence, and utility bills—could not in law constitute an instrument of transfer capable of vesting title. Counsel cited OPPONG V ANARFI[2012] 36 MLRG 127 AND GRACE KAKI ASEM V AGYEMAN & ANOR[2019] 149 GMJ 58for the proposition that receipts or allocation notes are not instruments of conveyance, and that until a formal instrument of transfer is executed, legal title remains vested in the transferor. On that footing, the Plaintiff contended that the trial court erred in elevating the Defendant’s interest “beyond equitable” and in treating it as superior to its own registered leasehold interest derived from the State Housing Company (SHC).

[35].Counsel for Defendant, on the other hand, maintained that on a balance of probabilities, it had demonstrated a title far stronger than that of the Plaintiff. The Defendant relied on a continuous chain of events beginning with the full payment of £6,800 in 1959, allocation of Houses Nos. 156 and 157 by SHC, occupation from 1960 to date by its officers, repeated ground-rent demands and receipts, and SHC’s consistent recognition of the Respondent as owner or purchaser in subsequent letters and inspection reports. Even though a formal lease deed was not produced, counsel urged that under S ection 6 of the State Housing Corporation (Ejectment) Act, 1970 (Act 322)—which provides that “in this Act, ‘lease’ includes any agreement for the letting of any premises whether oral or otherwise” —the Defendant’s relationship with SHC constituted a valid leasehold interest. That interest, having never been lawfully determined, could not be defeated by SHC’s purported re-grant in 2016 or the Appellant ’s derivative assignment in 2018. The Defendant therefore claimed a legally cognisable estate, superior in both equity and priority to the Plaintiff’s.

[36]. The documentary record strongly supports the Respondent’s position. The 1959 to 60 correspondence, tendered as “Exhibits 1–5”, showed payment, allocation, and authorisation for utilities in the Respondent’s name. Later internal memoranda and inspection reports—notably the 2013 and 2016 reports produced under subpoena—expressly stated that “House No. 156 belongs to the Ghana Sports Council.” The oral evidence reinforced these facts: DW2, the Head of Estates of SHC, candidly admitted under cross- examination that although “no formal lease was made out,” the file revealed long occupation by the Respondent, continuous payment of ground rent, and acknowledgment by SHC that the Defendant was the purchaser and occupant. He further conceded that SHC had never repossessed the property or reclaimed the keys before executing the 2016 lease in favour of Top Heights Capital Management Ltd.

[37].Upon a full evaluation of the record, this Court finds that the Defendant’s interest is indeed better in priority and substance. While OPPONG V ANARFI and GRACE KAKI ASEM V AGYEMAN correctly affirm the necessity for written instruments to perfect legal title, those authorities cannot override the statutory deeming effect created by Act 322, nor the long-established equitable principle that a grantor who has placed a purchaser or tenant into possession and continues to recognise that possession cannot lawfully re-grant the same property to another in the absence of lawful re-entry, which is manifestly lacking in the instant case. The Defendant’s purchase, possession, and recognition by SHC over a period exceeding half a century created an estate which, though imperfect in form, is complete in substance and enforceable both in law and equity.

 

[38].The learned trial judge was therefore correct in holding that “by the massof documentary evidence it clearly shows that, short of a formal conveyance, the Defendant has an interest which is beyond equitable but a legal interest.” The court further observed that possession had remained with the Defendant’s officers from 1960 to date, rendering the Appellant’s subsequent lease and assignment void ab initio. I find no error in that reasoning; the Defendant’s interest, having both historical and statutory legitimacy, prevails over the Defendant’s derivative and later-acquired claim.

EFFECT OF REGISTRATION AND NOTICE

[39].The next question concerns the legal effect of the Appellant’s registration of its interest and whether that registration could prevail over the Respondent’s prior possession. The Appellant anchored its argument on the Land Title Certificate issued to it on 4thFebruary 2019 under the Land Title Registration Law, 1986 (PNDCL 152). It contended that registration raises a presumption of ownership, and that a registered title may only be impeached on the limited grounds of fraud or mistake as provided by statute. Since no fraud was pleaded or proved against it, counsel maintained that the trial judge erred in treating the registration as a badge of fraud and in ordering its cancellation. It was further submitted that the registration process is a public one, involving notice through newspaper publication, and therefore the suggestion of secrecy or impropriety was wholly misplaced.

[40].The Respondent’s response was twofold. First, it was submitted that registration under PNDCL 152 does not create an indefeasible title where the registrant acquires with actual or constructive notice of a prior equitable or possessory interest. Citing WESTERN HARDWOOD ENTERPRISES LTD V WEST AFRICAN ENTERPRISES LTD[1998–99] SCGLR 105, TORNADO ENTERPRISES LTD V CHOU SEN LIN [2001–2002] SCGLR 835, and AMUZU V OKLIKAH[1998–99] SCGLR 141, counsel argued that a registered title obtained in such circumstances is liable to rectification or may simply yield to the prior equity. Secondly, the Respondent pointed out that the Appellant registered its interest pendente lite, several months after filing the Writ of Summons on 31 stAugust 2018, and crucially after issuing a Notice to Vacate dated 31 stMay 2018 (Exhibit F) to the very persons already in occupation.

These facts, it was said, demonstrated the Appellant’s actual knowledge of the Respondent’s possession, such that its subsequent registration could not confer priority.

[41].The evidence on record supports the Respondent’s position. By the Appellant’s own admission, it had issued a Notice to Vacate to the “occupier” of House No. 156 before the commencement of the action. In cross-examination, PW1 also admitted that he did not have the keys to the boys’ quarters and later came to know that the Defendant was in possession. He further stated that his access to the main building was facilitated only by Top Heights Capital Management Ltd, not through delivery of possession by SHC. These admissions, which the trial judge explicitly referenced in her discussion of possession and notice, make it clear that the Appellant was fully aware of the Respondent’s continued occupation when it proceeded to register the property in its own name. The registration, occurring on 4thFebruary 2019, therefore took place after both the N otice to Vacate and the commencement of litigation. On these undisputed facts, the resulting Land Title Certificate cannot defeat the Respondent’s long-standing interest and occupation. The absence of a formal pleading of fraud is immaterial: under the equitable doctrine of notice, a purchaser who takes with actual or constructive notice of an existing encumbrance takes subject to it.

[42].The authorities relied upon by the Respondent correctly reflect this principle. In WESTERN HARDWOOD ENTERPRISES LTD V WEST AFRICAN ENTERPRISES LTD.(supra), the Supreme Court held that a party with actual notice of an encumbrance is deemed to have constructive notice of all that a reasonably prudent purchaser would have discovered. The law on the effect of registration has long been settled by the Supreme Court.

[43].In TORNADO ENTERPRISES LTD V CHOU SEN LIN [2001–2002] SCGLR 835 at 847–848, Acquah JSC (as he then was) emphasised that:

“Registration of an instrument under the Land Registry Act does not, by itself, confer title. Registration cannot validate a transaction which is otherwise void, nor can it operate to extinguish an already existing and valid title or interest. It merely gives notice of the instrument and affords it priority over subsequent instruments.”

The same principle was earlier affirmed in AMUZU V OKLIKAH [1998–99]SCGLR 141 at 148–149, where the Court, also per Acquah JSC, held that:

“Registration does not confer title; it is not meant to create title but only to give notice of an existing one. Where there is a conflict between a registered title and an earlier unregistered but equitable interest, the court will protect the equitable interest if the registered proprietor had notice, actual or constructive, of that prior right.”

[44].These authoritative pronouncements make plain that registration under the Land Title Registration Law, 1986 (PNDCL 152) cannot cleanse a transaction of its inherent defects or extinguish an already existing and superior equitable or legal interest of which the registrant had notice. In consequence, the Appellant’s reliance on its Certificate of Title issued in February 2019 cannot prevail against the Respondent’s earlier and long-recognised interest coupled with open possession of the property. Accordingly, I find that the Appellant’s registration does not prevail over the Respondent’s prior and superior interest. To the extent that the Appellant took with knowledge of the Respondent’s possession and proceeded to register while litigation was pending, the registration cannot confer upon it a higher title than that possessed by its grantor.

[45].The learned trial judge addressed this matter in clear terms, stating that the Plaintiff“obtained the Land Certificate on 4th February 2019 and was aware that the Defendant was in possession, yet failed to give notice of the registration to the Defendant. A transaction conducted pendente lite has on it a badge of fraud; secrecy is always evidence of fraud.” On that reasoning, she ordered the cancellation of the Plaintiff’s title and affirmed that registration in these circumstances does not create absolute title. I find her conclusion to be firmly supported by both the evidence and the law. I will emphasize without equivocation that registration cannot, and does not, defeat a subsisting and better title known to the registrant at the time of registration.

Whether Fraud Was Necessary or Established

[46].The final issue relates to the question of fraud and whether a finding of fraud was necessary to sustain the judgment. The Plaintiff argued that the Defendant had not pleaded fraud, and that no such allegation was patent on the record. It therefore contended that the learned trial judge erred when she invoked fraud to impeach the Plaintiff's Land Title Certificate and order its cancellation. Counsel emphasised that the law is settled: fraud must be specifically pleaded and strictly proved, and courts must not rely on conjecture or inference to reach such a grave conclusion. Further, it was submitted that the Land Title Registry enjoys a presumption of regularity, and absent proof of collusion or misrepresentation, the issuance of a certificate by the Lands Commission cannot be impugned on mere suspicion.

[47].The Defendant, however, answered that even if fraud had not been expressly pleaded, courts are entitled, in clear cases, to infer fraud from the record where the circumstances so demand, as recognised by the Supreme Court in AMUZU V OKLIKAH [1998–99] SCGLR 141. More importantly, counsel argued, the High Court’s decision did not depend on a finding of fraud. The State Housing Company’s lack of legal capacity to re-grant the property in 2016, coupled with the Defendant’s superior title and uninterrupted possession, were sufficient bases for the decision. In such circumstances, the Plaintiff's registration done pendente lite and with actual notice of the Defendant’s possession—was liable legally questionable regardless of whether fraud was established.

[48]. Having reviewed the record, I am persuaded that a conclusive finding of fraud was not necessary to determine the rights of the parties. The material facts speak for themselves. The Appellant registered its interest on 4thFebruary 2019, long after it had issued a Notice to Vacate dated 31stMay 2018 to the “occupier” of the premises (Exhibit F), and after the commencement of this suit in August 2018. During cross-examination, PW1 candidly admitted that he entered the premises through Top Heights, that he did not have the keys to the boys’ quarters, and that he later discovered that the Defendant was in possession. These admissions, which the trial judge expressly relied upon, clearly demonstrate that the Appellant had actual notice of the Respondent’s possession before registration. Such conduct, though not amounting to proven fraud in the technical sense, deprived the Appellant’s registration of any equitable priority.

[49]. Consequently, even if the trial judge’s references to “badges of fraud” and “secrecy” were perhaps strongly worded, the outcome does not depend on that characterisation. The decree setting aside the 2016 lease to Top Heights and the 2018 assignment to the Plaintiff, together with the consequential order for cancellation of the Appellant’s registration, is amply justified on grounds other than fraud—namely, the lack of capacity of SHC to convey in 2016, the priority of the Respondent’s interest, and the Plaintiff’s registration with notice and pendente lite. In equity, a purchaser who registers with knowledge of another’s possession takes subject to that interest; the registration cannot confer a higher title than what its grantor lawfully possessed.

[50]. The learned trial judge succinctly addressed this matter when she held that the Appellant“obtained the land certificate on 4th February 2019 and was aware that the Defendant was in possession, yet failed to give notice of the registration to the Defendant. A transaction conducted pendente lite has on it a badge of fraud; secrecy is always evidence of fraud.”After making that observation, the judge proceeded to resolve the case on the substantive doctrines of nemo dat quod non habet and capacity, entering a declaration of title in favour of the Defendant, setting aside the impugned instruments, and ordering the cancellation of the Appellant’s registration. I find this approach unimpeachable in principle: the judgment is properly sustainable on the grounds of capacity, priority, and notice, without the need for a definitive finding of fraud.

CONCLUSION

[51]. Having carefully re-evaluated the entire record, the submissions of counsel, and the applicable principles of law, this Court reaches the following conclusions on the four issues raised for determination. With respect to the first issue, concerning the capacity of the State Housing Company (SHC), the evidence overwhelmingly establishes that SHC had no subsisting legal estate in House No. 156 which it could lawfully convey in 2016 or 2018. The company had long before parted with possession of the property, having received full payment from the Defendant’s predecessor and recognised the Defendant’s occupation over several decades. Accordingly, SHC lacked the capacity to re-grant or consent to an assignment of the same property in favour of the Plaintiff or its grantor.

[52]. On the second issue, which relates to the nature and priority of the Defendant’s interest, the Defendant succeeded, on a balance of probabilities, in establishing a better title than that asserted by the Plaintiff. The Defendant’s title was grounded in payment of the purchase price, continuous and open possession since 1960, payment of ground rent, and repeated acknowledgments of ownership by SHC. These elements together created an interest that is both legally and equitably superior to the Plaintiff’s derivative and later-acquired leasehold.

[53]. Turning to the third issue, regarding the effect of registration and notice, the Plaintiff’s Land Title Certificate dated 4thFebruary 2019 cannot prevail over the Defendant’s prior rights. The registration was effected pendente lite—after the commencement of this litigation—and at a time when the Plaintiff had actual notice of the Defendant’s possession, having itself issued a notice to vacate to the “occupier.” Registration under the Land Title Registration Law, 1986 (PNDCL 152) does not create an indefeasible title where the grantor of the person seeking registration of interest was bereft of any interest by reason of earlier grant which was still subsiting. It follows that the Plaintiff’s registration does not displace the Defendant’s long-standing title and possession.

[54].Finally, in relation to the fourth issue, concerning fraud, a specific finding of fraud was unnecessary to uphold the decision of the court a quo. The judgment of the High Court is firmly sustainable on the independent grounds of SHC’s lack of capacity, the Defendant’s better title, and the Plaintiff’s registration with notice of prior existing interest. Even if the trial judge’s reference to “badges of fraud” was robust, the outcome remains correct in substance and in law. Taken together, these conclusions mirror the findings and reasoning of the learned trial judge and furnish no legal or factual basis for appellate interference. The decision of the High Court is therefore affirmed in its entirety, and the appeal accordingly fails.

POSTSCRIPT

[55]. Before I take leave of this judgment, it is necessary to record a few reflections on the broader institutional lapses that have given rise to yet another needless contest over public property. This case, like many others that reach our courts, is not merely a dispute between private claimants; it is a mirror reflecting the persistent failure of state institutions and their custodians to act with the diligence and foresight that public trust demands.Had those entrusted with the management of State assets — in this instance the State Housing Company and the Defendant institution — taken the most elementary steps to ensure proper documentation, regularisation of titles, and lawful repossession where appropriate, this litigation would never have been necessary. The Defendant’s long occupation of the property, though lawfully grounded, remained undocumented and exposed to challenge. Conversely, the State Housing Company’s attempt to re-grant or reassign the same property without first lawfully re-entering or clarifying its residual interest was a dereliction of institutional duty. Such administrative negligence breeds confusion, erodes public confidence, and ultimately burdens the courts with disputes that ought to have been prevented at the registry desk.

[56]. The Lands Commission too must bear its share of responsibility. It must be more vigilant and scrupulous in processing applications involving lands in which State institutions may have an interest. It is not enough to treat every conveyance as a matter of routine registration. Proper verification of the source of title, notice to affected public bodies, and confirmation of occupation on the ground are indispensable safeguards. The law presumes that the Commission acts in the public interest; it must therefore exercise that mandate with care and discernment.

[57]. Our Republic’s lands are finite, and their mismanagement is not a private misfortune but a collective loss. When officers of public corporations and agencies fail to protect or document property under their care, it is ultimately the taxpayer and citizen who bear the cost

— in lost assets, in protracted litigation, and in the erosion of public wealth. The time has come for those entrusted with the stewardship of State property to demonstrate genuine commitment and accountability, lest the courts continue to serve as the reluctant custodians of matters that sound more in administrative indifference than in legal principle.

[58] Cost of Thirty Thousand Ghana Cedis (GH¢30,000.00) awarded in favour of the Defendant/Respondent against the Plaintiff/Appellant.

CONCURRING OPINION: AFIA SERWAH ASARE-BOTWE JA:

I have had the opportunity of reading the very thought-out Judgment of my learned brother, Justice Dr. Ernest Owusu-Dapaa JA. I agree entirely with his reasoning and conclusion that the Judgment of the court below is merited given the facts and the evidence before it and that same must be upheld.

I wish, however, to set out a few observations that I made, in the course of studying the record, and make a small contribution to the legal discourse.

In this concurring opinion, the parties will maintain their respective designations, as “the Plaintiff” and “the Defendant” as they had before the trial court.

It is not intended that I will repeat a discussion of the law and the evidence which have been ably dealt with in the lead Judgment. I would rather point out a few other matters which I think ought to be added to the reasoning.

The background and facts leading to this appeal have been well set out in the lead opinion of my learned brother. I do not intend to rehash them in this very brief concurring Judgment.

ON THE DOCUMENTATION COVERING THE PROPERTY AND TITLE THERETO:

This case has a situation where the Plaintiff is claiming that its title to House No. 156, Ringway Estate, the property in dispute, is covered by a Land Title Certificate obtained on 4th February 2019 ( Exhibit G). On the other hand, the Defendant had an allocation letter of 31st May 1960 confirming that the houses had been allocated for the Authority’s personal occupation only upon payment of the purchase price of £6800 in or about 1960. The said document, Exhibit 2, has the word ‘purchase’ in respect of properties Nos. 156 and 15, Ringway Estate.

It is essentially the case of the Plaintiff that the Court ought to look on the Land Title Certificate with more favour than the allocation letter.

Our Supreme Court has had occasion to pronounce the legal effect of an allocation note or letter. In OFORI AGYEKUM v. MADAM AKUA BIO(SUBST. BY AGARTHA AMOAH (SC) (CIVIL APPEAL NO J4/59/2014 ) dated 13th April, 2016,1 the Supreme Court, per Benin JSC:-

“In BOATENG (No. 2) vrs. MANU (No. 2) & Or. (2007-08)SCGLR 1117, at holding 3, the court held that the allocation paper is the initial process to evidence that the land has been acquired by an individual or corporate body. The allocation paper cannot by itself represent the acquisition of the land. The court then went on to give three reasons why an allocation paper is not a registrable instrument. The allocation paper thus represents the first process/step in the acquisition of land from a grantor. It is a paper which gives the grantee the right to perfect his title or access to the land…….The issue of an allocation paper is such a notorious practice in the Ashanti Region that we cannot fail to take judicial notice of it - see the case of ENYIDADO COMPANYLTD. vs. ODEEFO OWUSU AMOAYE II, unreported judgment of this court dated 29the November 2013. The allocation paper enables a grantee to enter the land, and take measurements for purpose of making a site plan..”

Clearly then, an allocation document containing the word “purchase” and not “lease” or similar nomenclature, is not a useless paper to be overlooked, particularly when this is not mere vacant land, but a house, in which there is evidence of undisturbed occupation by the Defendant’s employees from 1960 till the purported lease, first to lease to Top Heights Ltd. in 2016 and subsequent assignment to the Plaintiff in 2018.

On the issue of possession and occupation by the licensees, it was held in the case of ROSINA ARYEE V. 1 SHELL GHANA LTD AND FRAGA OIL LIMITED (CIVIL APPEAL NO.J4/3/2015 DATEDE 22ND OCTOBER 2015), (reported on www. ghalii.org), the Supreme Court stated regarding prior registration and previous acquisition and possession by another party inter alia that:-

“……There is no dispute that on the evidence the Company gave the same piece of land to the plaintiff in 1997 and then to the co- defendant in 2003. There is no dispute that the co-defendant registered the land in May 2003 whilst the plaintiff also succeeded in registering the same piece of land subsequently. This double registration depicts the confusion that has engulfed land administration in this country.

The co-defendant is saying that at the time they acquired the land they conducted appropriate searches. The result was that there was no encumbrance so they acquired the title which they duly registered. Therefore they claimed they were bona fide purchasers for value without notice; moreover they perfected their title by prior registration. The courts below rejected the plaintiff’s claim to have been in possession when the land was given to the co-defendant.

For the purposes of this appeal, we would first have to focus on the issue of possession by the plaintiff whether in fact and in law the plaintiff was in possession and if so whether it negatives the plea of bona fides; that is reflected in ground 2 of the grounds of appeal. We take this approach because in law if the principle of bona fide purchaser succeeds, coupled with the prior registration, the co- defendant would succeed against every person as they would have acquired an indefeasible title. On the other hand, if the co-defendant was fixed with notice of any encumbrance, in this case by plaintiff’s possession, it would negative the bona fides plea notwithstanding their prior registration of title.

Possession in law is one of the most difficult and complex areas of the law, hence the impossibility in placing it in a pigeon hole. It is normally determinable from the facts of a given case. We are concerned with possession of land in a city like Accra. We cannot lose sight of the numerous problems associated with land ownership in Accra. People who have gone through the process of acquiring land genuinely stand the risk of losing it if they fail to develop it immediately because of multiple sales or leases by the same vendor or lessor as the case may be. Hence developments have been rushed through without building permits all because people want to protect their land. So in order not to violate the laws of the land people have resorted to erecting temporary structures on the land to serve as visible sign to everybody who goes there to know that at least somebody is on the land…….”

In this case, there is no question, and same is admitted by the Plaintiff, that the land in dispute is not bare land. It is developed land, with structures, being a main house and boys’ quarters on it and occupied by staff of the Defendant as duty post accommodation. From the Plaintiff’s own showing, its officers did not have the keys to the property.

One would wonder if the due diligence to be done for bare land, such as merely conducting a search, at the Lands Commission and even SHC, would be the same as what would be needed for a house completed for occupation since 1960 and which had been occupied since? Most certainly not! At the very least, a prudent purchaser would have made enquiries from the occupants of the house or neighbours before making any financial outlay.

I have noted the document ostensibly prepared in favour of Top Heights Ltd in 2016 (Exhibit B), which is supposed to be the founding document of the Land Title Certificate. That document contains the seeds of its own destruction. The conveyance is supposed to have been made by the Managing Director of the State Housing Company (SHC), whose name is not mentioned, and the same would be observed from the attestation page (at page 101 of the Record of Appeal) where neither the name of the Managing Director nor any of the witnesses is named. The document also has no seal of the SHC.

In the same vein, I have noted Exhibit C. That document, although an official one, is not on a letterhead, has no names nor stamps. It is difficult to authenticate its source and whether the person that the Plaintiff’s predecessor-in-title dealt with was properly mandated so to do.

And, even assuming that the document did emanate from the proper quarter in SHC, there is the issue of the previous grant to the Defendant in 1960 and continuous occupation since then and the nature of the 1960 grant, described as a purchase.

It is trite learning that where the same grantor grants land to one person and then grants the same land to another person, on the application of the nemo dat quod non habet principle, the subsequent grant is a nullity.

 

 (See TETTH & ANOR v. HAYFORD (SUBST. BY LARBI & DECKER) [2012] 1 SCGLR 417;

 DOVIE & DOVIE v. ADABANU [2005-2006] SCGLR 95;

 CRAYDEN v. CONSOLIDTED AFRICAN TRUST LTD [1949] WACA 443).

In this case, there was nothing to grant to the Plaintiff or any other person. No quantity of documents can legalise a void transaction.

The law is also settled that the Land Registry Act, 1962 (Act 122) did not abolish the equitable doctrines of notice and fraud; neither did it confer on a registered instrument a state-guaranteed title. In other words, one must found his claim to title with real evidence of title of his grantors. Documents do not in themselves found the title to land without more.

Thus in AWUKU V TETTEH (2011) 1 SCGLR 366, the court held, inter alia, “… even if the Appellant registered his document of title, registration per se does not confer title on a person; this now trite learning. It is the underlying facts that matter. Here in this appeal, the evidence shows that the title of the Appellant was null and void and in that state, no amount of registration will save it and clothe it with validity”.

In WESTERN HARDWOOD ENTERPRISE L TD and Another v WEST AFRICAN ENTERPRISES LTD [1997-98] 1 GLR 645 SC,

it was held that the fact that a party holds an indenture does not in itself guarantee title to the property in respect of which he holds the indenture, especially where the title of his grantor is challenged or in doubt.

The law is also settled that the Land Registry Act, 1962 (Act 122)(which was in force at the time of the transactions in this case) did not abolish the equitable doctrines of notice and fraud; neither did it confer on a registered instrument a state-guaranteed title.

Although in the case of YAWSON v. MENSAH [2012] 38 MLRG 121, SC, it was held per Anin Yeboah JSC it was held that a Land Title Certificate is prima facie evidence of title to property, its foundation or root must be shown to be in no doubt at all.

See also

 

 AMUZU v. OKLIKAH[1998-99] SCGLR 141

 FIANKO v. AGGREY [2007-2008] SCGLR 1135

 HYDRAFORM ESTATE v. MOI ASHONG [2012] 44 GMJ144 @166-167

Still on the foundation of his application for Land Certificate, I have noted with concern that the Land Certificates for the Plaintiff was issued on the 4th of February, 2019, during the pendency of this action.

It is a matter widely appreciated by every practitioner of land law that the Plaintiff and its grantors, would have had indicate in the Declaratory Portion of the application form that there were no encumbrances on the land or that there is no person in possession or occupation of the land or any portion thereof, or that there was no action pending in the courts challenging ownership to that land or property.

In the Court of Appeal case of NUMO NORTEY ADJEIFIO, (SUBSTITUTED BY NII ADJEI SANKUMA) & 2ORS v. NII MATE TESA (SUBSTITUTED BY DANIEL MARKWEI MAMAH) & 5ORS, ( Suit No. H1/9/2012 dated 19th April, 2012, the Court of Appeal per Akamba J.A (as he then was stated at pages 24 to 25 of the judgment:

“…… No doubt, the suit commenced on 10th March 1989 whilst the land certificate was issued on 7th August, 1992. It is therefore correct to state that the certificate was issued during the pendency of the suit. Section 12(2) of the Land Title Registration Law, 1986 (PNDCL 152) states;

(2) Where at the time of the publication of a notice under section 11 of this Law an action or proceeding concerning any land or interest therein in a registration district referred to in the notice is pending in any Court, any claim under this Law in respect of the same land or interest shall be noted by the Land Registrar but no further action shall be taken by him on such claim until the matter is determined by the Court.”

At the time the Respondents filed their claim with the Registrar they had already initiated the court action hence the Registrar was obliged to note their interest only and stay further action on it until the court has determined the matter before it. What is the status of the land certificate issued in defiance of the clear provisions of Section 12(2) of PNDCL 152 afore quoted? It is obvious to me that the Registrar had no mandate to issue the certificate when he did because the parties were already in court……. By nevertheless issuing the certificate at the time, the registrar had exceeded his powers by acting prematurely in clear violation of the provision quoted above. It therefore lies within the powers of this court to strike out the certificate which we hereby do and declare land title certificate No. GA 2811 invalid.”

It was the duty of the Applicants, in this case, the Plaintiff and its grantor, to make full disclosures on the status of the land, including pending litigation. If therefore, there was a failure on his part to make such a disclosure, resulting in the Registrar issuing the certificate in spite of the pendency of the litigation, they cannot take advantage of the failure or neglect to do equity.

It is clear from the evidence and the record that the plaintiff was aware that there was a pending litigation. The company ought to have disclosed same on his form which was lodged at the Land Title Registry which he failed to do.

I am therefore also of the view that the Land Title Certificate ought to be cancelled and the record rectified to reflect the cancellation in order to avoid any confusion in the public records in the future.

CONCLUSION

Given the nature of the evidence the parties put before the court below the trial Judge cannot be faulted in the decision that she came to.

The case and documentation of the Plaintiff itself were intrinsically weak and could not have been the sort enabling a court to grant the reliefs sought by the Plaintiff. There were clear matters of evidence which could not be ignored in all good conscience.

With the presumption of the rightness of a judgment of a trial court, an appellate court should not disturb a decision, unless compelling reasons are offered for such a judgment to be overturned. I am of the firm belief that the Appellant has not done enough before us for the judgment under attack to be overturned in its favour.

 

For the reasons set out in the very detailed lead judgment, of my brother, Justice Owusu-Dapaa JA, I affirm the conclusion of the learned trial High Court Judge. The Appeal is dismissed as same is without merit.