Gibrine Adam v Richard Opoku and Works Foreman/Supervisor and Catherine Amoatey and J. B. Plaza Limited

1.0 INTRODUCTION:

The facts of this case are mainly from the Amended Statement of Claim of the Plaintiff drawn as follows:

 

“The Plaintiff is a Businessman and an Educationist and resides in Accra. The defendants reside in Accra. The 2nd Defendant’s name is unknown to the Plaintiff. The 3rd Defendant is falsely laying claim to the land the subject-matter of this suit.

The 3rd Defendant claims to have a judgment against the 4th Defendant over the land the subject matter of this suit. The Plaintiff is the owner in possession of the parcel of land described in the schedule hereto. The Plaintiff is the acquired the land for a valuable consideration from Princeton-Multi Purpose Estate Agency in February, 2017.

The Plaintiff’s grantor, Princeton-Multi Purpose Estate Agency had on its part, acquired the land from Nii Adjei Okpoti-Kodia and Jacob Sowah- Klotia Kwame in February, 1997 by way of a lease for a term of ninety-nine (99) years from 17th February, 1997 with an option to renew for a further term of forty-five (45) years.

The Plaintiff’s grantor had been actual and effective possession of the land since its acquisition of it, had exercised acts of ownership over it and had even put up buildings on part of it.

In addition, the Plaintiff’s grantor had registered its title in the land with the Land Title Registry as far back as February, 1997. The Plaintiff acquired the unexpired residue of his grantor’s lease in respect of the land described in the schedule hereto.

The Plaintiff has registered his title to the land as the owner thereof and has been issued with a land certificate No. GA 53661 by the Land Title Registry. The Plaintiff, since his acquisition of the land, has also been in actual and effective possession of it and of the hereditaments thereon.

The 1st and 2nd Defendants have trespassed onto a portion of the Plaintiff’s land and have dug trenches for the construction of a wall to cut off and fence the portion they have trespassed on The 1st and 2nd Defendants have started the construction of that wall.

 

The 1st and 2nd Defendants have defied all warnings to cease their activities on the Plaintiff’s land and are proceeding with the unlawful work there. The matter has gone to the police but that has not deterred the 1st and 2nd Defendants from continuing with their trespass and unlawful activities on the land.

The Plaintiff avers that the 1st and 2nd Defendants will persist in their trespass to the Plaintiff’s land and their unlawful activities thereon unless this honourable court restrains them from doing so.

The 3rd Defendant in an application for her to be joined to the instant suit has claimed falsely that the land the subject matter of this suit belongs to her.

The 3rd Defendant claims falsely again that she has a lease on the land and has obtained judgment against the 4th Defendant for the land in Suit No. LD/1067/2016 intituled CATHERINE KYEI AMOATEY V. J. B. PLAZA LIMITED.

The Plaintiff will contend that any such judgment was obtained by fraud by the 3rd Defendant.”

1.1 PARTICULARS OF FRAUD:

(a) The 3rd Defendant wilfully and intentionally failed to disclose the fact that the land she sued in respect of had been registered in the name of the Plaintiff’s grantor and subsequently in the name of the Plaintiff.

(b) The 3rd Defendant wilfully and intentionally failed to disclose the fact that the Plaintiff’s grantor and later the Plaintiff had been in physical possession of the land she sued in respect of and the hereditaments thereon.

(c) The 3rd Defendant wilfully and intentionally concealed the fact that there were in fact buildings on the land sued for.

(d) The 3rd Defendant wilfully and intentionally concealed the suit she brought in respect of the land for the Plaintiff and his grantors.

(e) The 3rd Defendant wilfully and intentionally brought the suit in respect of the land against the wrong party.

The Plaintiff has suffered loss and damages by reason of the matters aforesaid.

1.2 Based on these facts the Plaintiff claims against the Defendants jointly and severally as follows:

a. Declaration of title to all that piece or parcel of land more particularly described in the schedule hereto.

b. Recovery of possession of any portion of the land that the Defendants have trespassed upon and or are working on.

c. An order of perpetual injunction to restrain the Defendants, their agents, servants, workmen, assigns and privies from entering the land or interfering in any manner whatsoever with the Plaintiff’s ownership, possession, use and or enjoyment thereof.

d. An order setting aside the judgment in Suit NO. LD/1067/2016 intituled CATHERINE KEI AMOATEY V. J. B. PLAZA LIMITED for having been

obtained by fraud.

e. General Damages for trespass.

f. Costs.

1.3 SCHEDULE:

All that piece or parcel of land in extent 0.52 hectare (1.28 acres) more or less being Parcel Bo. 11865 Block 1 Section 149 situate at Oyarifa in the Greater Accra Region of the Republic of Ghana as delineated on Registry Map No. 005/149/1993 in the Land Title Registry Victoriaborg, Accra and being the piece or parcel of land shown and edged with pink colour on Plan No. 425/2017 annexed to Land Certificate No. GA 53661.

 

1.4 It is salient to note that the Plaintiff discontinued the action against the 4th Defendant. In contesting the Plaintiff’s claim, the 1st to 3rd Defendants caused their lawyers to enter an appearance and also filed a defence on their behalf.

1.5 Per their statement of defence they pleaded as follows:

“1. Save as hereinafter admitted, the Defendants deny each and every allegation of fact as if same was set out in extensor and denied seriatim.

2. The 1st to 3rd Defendants are in no position to admit or deny paragraph 1 of the Statement of Claim.

3. In answer to paragraph 2 of the statement of claim, the 1st Defendant says that he is the lawful attorney and a sister to Catherine Kyei Amoatey and 2nd Defendant is a contract workers of the 1st Defendant, a real estate developer.

4. The 3rd Defendant denies paragraph 3 of the amended statement of claim and in further answer says that indeed she is the owner of the subject matter having validly acquired the said land in 1995 from Kplen We family. She subsequently had to make two more payments to James Nii Mensah Okpoti Kodia in 2001 and Princeton Multipurpose Estate Agency in 2002.

5. The Defendants say further to paragraph 4 supra, that the subject matter originally consisted of 4 plots (1 acre) a portion (2 plots) have been developed with buildings thereon.

6. The 3rd Defendant admits paragraph 4 of the amended statement of claim and says further that she contested the title of the subject matter in 2016 against the 4th Defendant and obtained judgment in her favour.

7. Further to paragraph 6 supra, 1st Defendant says he is in possession of the subject matter.

8. The 1st to 3rd Defendants vehemently deny paragraph 5 of the statement of claim and will put the Plaintiff to strict proof.

9. The 3rd Defendant vehemently denies paragraph 6 and says further that she had already secured her title by making payment to the Plaintiff’s grantor all the way back in 2002. Having made payment, the Plaintiff’s grantor was not in a position to give the same land to the Plaintiff in 2017.

10. The 3rd Defendant denies paragraphs 7, 8, 9, 10, 11 and 12 of the amended statement of claim and will put the Plaintiff to strict proof.

11. The 1st to 3rd Defendants deny paragraph 13, 14, 15, 16 and 17 of the amended statement of claim and says further that any activities on the land were carried out on the strength of the judgment of the court dated 15th May, 2018. The Defendants were thus exercising their legal rights to be on the land.

12. Save that the 3rd Defendant applied for joinder to the instant suit, the 1st to 3rd Defendants deny paragraphs 18, 19 and 20 of the statement of claim and in further answer repeat the averment in paragraph 6 herein.

13. The 3rd Defendant says further that imputing fraud on a validly obtained judgment of the High Court is preposterous and the Plaintiff will be put to strict proof.

14. In general answer to the statement of claim the Defendants say the Plaintiff has no cause of action against them and not entitled to any of his claims.

COUNTERCLAIM:

15. The Defendants repeat paragraphs 1 to 14 of the statement of defence.

16. The Defendants say that the land was acquired for valuable consideration from the Kplen We family in 1995 in the name of Catherine Amoatey.

17. The 1st Defendant says that subsequently, in the year 2001 when attempts were made to commence work on the land it was discovered

 

that James Nii Mensah Okpoti Kodia of the Kplen We family was pursuing a court action for declaration of title over that particular piece of land against the Kpen We family. In order to secure title, the 1st Defendant approached the said James Nii Mensah Okpoti Kodia and Nii Larsey Kodia had another lease executed in favour of Catherine Kyei Amoatey over the parcel of land after payment of valuable consideration again.

18. The 1st Defendant says that in 2002 the 3rd Defendant was obliged to once again pay for the same parcel of land after it was discovered that Princeton Multipurpose Estate Agency, while registering their interest had included the subject matter of this suit as part of their interest.

19. The 3rd Defendant thus paid thrice for the same parcel of land all in a bid to secure an indefeasible title.

20. The 1st Defendant says that after acquisition of the land in 1995, a single room was constructed and occupied by a caretaker and a fence wall constructed around the property. He has therefore been in active possession of the land in dispute since it was acquired in 1995.

21. The 1st Defendant says that in 2012 upon his return from Europe, he realized that trespassers had encroached onto the land and broken down the structures thereon and were working on the land. The 1st Defendant says that he cautioned the Managing director of J. B. Plaza Limited to desist from working on the land, but the latter refused to heed the caution.

22. The 1st Defendant says that the said J. B. Plaza has a land adjoining the subject matter and attempted to encroach on two plots of land belonging to Catherine Kyei Amoatey.

23. The 1st Defendant says that he commenced an action against J. B. Plaza Limited in 2016 titled CATHERINE KYEI AMOATEY V. J. B. PLAZA

& TRESPASSERS Suit Number LD/1067/2016 over the same parcel ofland claiming against them a number of reliefs including declaration of title and recovery of possession.

24. The 1st and 3rd Defendants say that J. B. Plaza Limited entered appearance and in its statement of defence claimed that J. B. Plaza did not own any land in the area in dispute.

25. The Defendants say that while the suit was subsisting, the 1st Defendant had his lawyers write to the Lands Commission on 23rd August, 2017 giving notice of the ongoing suit in order to pre-empt fraudulent rival claims.

26. The 1st Defendant says that in 2018, the 3rd Defendant obtained judgment in the suit and declaration of title over the piece of land was made in favour of Catherine Kyei Amoatey.

27. The 1st Defendant says that the judgment was duly entered and following failed attempts to serve J. B. Plaza Limited, an order for substituted service was obtained by which copies of the judgment were posted on the land subject matter of this dispute as well as on the notice board of the High Court for a period of twenty-one (21) days.

28. The 1st Defendant says that during this period, and while the court suit was pending, no one raised any objection nor challenged the title of the 1st Defendant.

29. The 1st Defendant says that out of the blue he was served with a writ of summons alleging that the Plaintiff was the owner of that parcel of land.

30. The 1st Defendant avers that this suit is frivolous and vexatious as it attempts to re-litigate a matter which has been adjudicated by a court of competent jurisdiction and judgment given in favour of Catherine Kyei Amoatey as the rightful owner of the parcel of land in dispute.

 

31. The 1st Defendant further avers whatever purported sub-lease documents the Plaintiff has from Princeton Multipurpose Agency as well as the purported land title certificate were obtained the fraud.

1.6 PARTICULARS OF FRAUD:

i. There was no indenture lodged at the Land Title Registry prior to the processing of the Land Title Certificate.

ii. There is no record of proof of an application lodged at the Land Title Registry for registration.

iii. There is no proof of record of publication of the purported registration as notice to the whole world.

iv. That having regard to the subsisting court suit and the letter written by the lawyers of Catherine Kyei Amoatey to the land title Registry on 23rd august, 2017, the latter could not reasonably have given the Plaintiff a valid Land Title Certificate on 8th November, 2017.

v. The site plan was not barcoded and was signed by a licensed surveyor instead of the Regional Surveyor.

vi. The purported signature in the name of Princeton Multipurpose Agency is forgery.

vii. The purported signatory and witness of Princeton Multipurpose Agency to the transaction are unknown to the Company.”

32. The 1st Defendant says that Catherine Kyei Amoatey is the rightful owner of the land in dispute.

33. Wherefore the 1st to 3rd Defendants counterclaim against the Plaintiff as follows:

a. Declration of title to all that piece and parcel of land being and situate at Oyarifa along the Accra-Aburi Highway covering an approximate area of 0.36 acres and bounded on the North-East by the Accra-Aburi Highway measuring 160 feet and on the

 

North by lessor’s land measuring 200 feet and on the South- West by a road measuring 160 feet and on the South-East by a road measuring 200 feet from Kplen We Kodia family.

b. An order for the cancellation of the certificate numbered GA 53661 purportedly issued to the Plaintiff.

c. Recovery of possession of any portion of land that the Plaintiff has trespassed on.

d. An order of perpetual injunction restraining the Plaintiff, his agents, servants, workers, assigns and privies from entering the land or interfering in any manner whatsoever with the 1st Defendant’s ownership, possession, use and enjoyment.

e. special damages for destruction of the wall on the property.

f. General damages for trespass.

g. Costs including legal fees.”

1.7 At the application for directions stage the following issues were set down for trial:

1. Whether or not the 3rd Defendant acquired its interest in the land prior to the acquisition by the Plaintiff.

2. Whether or not the judgment obtained by the 3rd Defendant against the 4th Defendant was obtained by fraud.

3. Whether or not the Plaintiff’s grantor had divested itself of their interest in the land at the time it purported to give same to the Plaintiff.

1.8 The case of the Plaintiff was prosecuted by his two witnesses. It is the testimony of PW1, one Iddrisu Mustapha that the Plaintiff acquired a 1.28 acre land situate at Oyarifa, popularly known as Oyarifa Ghana Flag in the Greater Accra Region sometime in February, 2017 from Princeton Multipurpose Estate Agency.

 

1.9 And that the Plaintiff as part of his due diligence prior to the acquisition, discovered that his grantor, Princeton Multipurpose Estate Agency, had obtained a land title certificate over large portions of land situate, lying and being at Oyarifa, which also included the land the subject matter of this dispute.

2.0 He stated that the Plaintiff conducted a search at the land title registry prior to his acquisition, and the search indicated that the parcel of land he intended to purchase was registered in the name of his grantor.

2.1 PW1 continued that the search noted that no other adverse interests had been recorded in relation to the land in dispute. Having satisfied himself with the status of the property, the Plaintiff proceeded with the purchase of the property.

2.2 The Plaintiff thereafter duly registered his interest in the said land by acquiring a land title certificate no. GA 53661 in respect of the land as was consistent with his searches aforesaid. See Exhibit A, a copy of the land Title Certificate.

2.3 According to PW1 at the time of the acquisition, a warehouse and office/residential building had been constructed on the land. Further, the entire perimeter of the property was walled with sandcrete blocks and completed with a gate at the frontage.

2.4 PW1 further testified that since the acquisition in 2017, the Plaintiff has been using the warehouse to store his merchandise while the office/residential unit has served as an office and a living quarters for the Facility Manager of the Plaintiff’s Company.

2.5 And that the Plaintiff, in addition to the assertions in the immediate paragraph above, has exercised overt acts of ownership over the land without let or hindrance from any quarters since his purchase in 2017 until sometime in September, 2018.

 

2.6 Sometime in or about September 2018, the Defendants without lawful authority entered onto a portion of the Plaintiff’s land and commenced digging trenches to construct a fence wall to enclose the portion trespassed upon. See Exhibit B series, pictures showing the act of trespass by the Defendants.

2.7 And that despite several warnings by the Plaintiff, the Defendants persisted in their act of trespass on a portion of the Plaintiff’s land. It is the testimony of PW1 that owing to the refusal of the Defendants to heed the notice, the Plaintiff was compelled to report the conduct of the Defendants to the Oyarifa police.

2.8 Unfortunately, the report by the Plaintiff to the police was not deterrent enough, as the Defendants persisted in their trespass until same was reported to the Property Fraud Unit of the Police CID.

2.9 The Plaintiff was compelled to commence the instant suit after which he subsequently applied for and was granted an injunction on 24th October, 2018 to restrain the then Defendants (1st and 2nd) from interfering with the subject matter land.

3.0 That upon the institution of this suit, it came to the attention of the Plaintiff that the 3rd Defendant claims to have obtained a judgment against a certain J.

B. Plaza, who she claims was hitherto the owner of the land in dispute.

3.1 The Plaintiff, as indicated above, acquired the land and property thereon from Princeton Multipurpose Estate Agency as evidenced by Exhibit A above. Also the judgment was procured by fraud because the 3rd Defendant knew or should have known that Princeton Multipurpose Estate Agency was the owner of the disputed land and surrounding area before starting the suit titled Catherine Kyei Amoatey v. J. B. Plaza Limited Suit No. LD/1067/2016.

3.2 And that the 3rd Defendant in the joint amended statement of Defence filed on 3rd March, 2023 acknowledged that sometime in 2002 she was compelled to

 

make payments to Princeton Multipurpose Estate Agency when she realized that the land in dispute was registered in its name.

3.3 That the 3rd Defendant’s claim to have acquired a grant from Princeton sometime in 2002, in respect of the land in dispute, is false as the said grant or evidence thereof was not pleaded or referred to in the suit Catherine Kyei Amoatey v. J. B. Plaza, Suit No LD/1067/2016.

3.4 Also, the 3rd Defendant’s purported sub-lease, though allegedly obtained in April, 2002 was presented for stamping some sixteen years later, viz in 2018. And that the purported grant by Princeton Multipurpose Estate Agency to the 3rd Defendant in 2002, is not noted in the records of the Land Title.

3.5 PW1 testified that the Plaintiff at all material times prior to the purchase had no notice of any encumbrance whatsoever in respect of the subject matter of this dispute hence the instant action against the Defendants.

3.6 The case of the 1st to 3rd Defendants was articulated by the 1st Defendant. According to the 1st Defendant, sometime in the year 1995, the Kplen We made a grant of the subject matter to the 3rd Defendant in the name of Catherine Amoatey.

3.7 In the year 2001 when attempts were made to commence work on the subject matter, it was discovered that James Nii Mensah Okpoti Kodia and Nii Laryea Kodia were pursuing a court action for declaration of title over the subject matter against the Kplen We. To ensure title he approached James Kodia and Nii Laryea Kodia to execute another lease in favour of the 3rd Defendant. See Exhibit 1, a copy of the Lease.

3.8 Again in the year 2002, after discovering that Princeton Multipurpose Estate Agency had registered its interest in the subject matter, they paid Princeton Multipurpose for its interest. See Exhibit 2.

3.9 After securing the subject matter land, he constructed a two single room on same and a fence wall around the land and thereupon placed a caretaker. And

 

that since the year 1995 the subject matter has been occupied by the Defendant. See Exhibit 3, photocopies of construction carried out by the 1st defendant.

4.0 That the fence wall he constructed was partly demolished by a trespasser and this warranted a report lodged with the police. The trespasser was arrested and a police investigative report was generated. See Exhibit 4, a copy of the Police Report.

See also Exhibit 5, a copy of the judgment secured against the trespasser of the subject matter land all in their bid to protect their interest in the land.

4.1 And that the present action is merely an attempt to re-litigate a matter which has received judicial blessings. The 1st Defendant further testified that any lease purporting to emanate from Princeton Multipurpose in favour of the Plaintiff was fraudulently procured.

4.2 And that a search conducted at the offices of the lands Commission disclosed that the subject matter belongs to James Nii Mensah Okpoti Kodia, the grantor of the 3rd Defendant. See Exhibit 6, a copy of the search conducted at the lands Commission.

4.3 It is the evidence of the 1st Defendant that the 3rd Defendant is the owner of the subject matter and the Plaintiff is merely a trespasser who has no interest in the subject matter.

4.4 The general rule on burden of proof is that it is incumbent on the party making a claim to provide sufficient evidence to affirm the claim. According to section 12 of the Evidence Act, 1957 (NRCD 323) the standard of proof required to be met by a Plaintiff in a civil action is on a preponderance or balance of probabilities. A plaintiff is therefore required by law to provide sufficient evidence to show that the case against the Defendant is more likely to be true than it is not. In the case of MILLER V. MINISTER OF PENSIONS [1947] 2 ALL ER 372, Lord Denning said:

“If the evidence is such that the tribunal can say ‘we think it more probable than not’ the burden is discharged but if the probabilities are equal, it is not.”

 

4.5 In the case of ZABRAMA V. SEGBEDZI [1991] 2 GLR 221 CA, KPEGAH JA

(as he then was) at page 247 of the report postulated the rule poignantly as follows:

“I will therefore venture to state the position to be: a person who makes an averment or assertion, which is denied by his opponent, has the burden to establish that his averment or assertion is true. And, he does not discharge this burden unless he leads admissible and credible evidence from which the fact or facts he asserts can properly and safely be inferred. The nature of each averment or assertion determines the degree and nature of that burden.”

4.6 In the case of SUMAILA BIELBIEL V. ADAMU DRAMANI & ANOR.,

Supreme Court, Writ No. J1/2/2010 delivered on 8th February, 2012, the Supreme court speaking through Date-Baah JSC said:

“There are two kinds of burden of proof recognized by the Common Law and which are preserved in Ghanaian law by the Evidence Act 1975 (NRCD 323). In the common law, some cases and text writers have made the distinction between the “legal burden of proof” and the “evidential burden of proof”. This distinction is mirrored in the Evidence Act 1975 by the distinction between “the burden of persuasion” and the “burden of producing evidence”. The burden of persuasion is defined in section 10(1) as: “the obligation of a party to establish a requisite degree of belief concerning a fact in the mind of the tribunal of fact or the court.” The burden of producing evidence is defined in section 11(1) as: “the obligation of a party to introduce sufficient evidence to avoid a ruling on the issue against that party.”

4.7 Similarly, the Supreme Court per Justice Sophia Adinyira JSC (as she then was) held in the case of ACKAH V. PERGAH TRANSPORT LIMITED & ORS. [2010] SCGLR 728 at page 736 as follows:

“It is the basic principle of law on evidence that a party who bears the burden of proof is to produce the required evidence of the facts in issue that has the quality of credibility, short of which his claim may fail

 

[…] it is trite law that matters that are capable of proof must be proved by producing sufficient evidence so that on all the evidence, a reasonable mind could conclude that the existence of a fact is more reasonable than its non-existence.”

4.8 In the case under consideration the Plaintiff traces his root of title to Princeton Multipurpose Estate Agency. It is the evidence of the Plaintiff that before acquiring the subject matter land, he exercised due diligence which search revealed that the subject matter land belonged to Princeton Multipurpose Estate, his grantor for which reason he acquired the subject matter land from them.

4.9 He thereafter caused his interest in the subject matter land to be registered and was issued with a land certificate numbered GA 53661. A copy of the land certificate was tendered in evidence as Exhibit A.

5.0 However the Defendants contend Exhibit A was fraudulently procured by the Plaintiff. The Defendants per paragraph 31 of their defence pleaded as follows:

“31. The 1st Defendant further avers whatever purported sub-lease documents the Plaintiff has from Princeton Multipurpose Agency as well as the purported land title certificate were obtained by fraud.

PARTICULARS OF FRAUD:

i. There was no indenture lodged at the land title registry prior to the processing of the land title certificate.

ii. There is no record or proof of an application lodged at the land title registry for registration.

iii. There is no proof of record of publication of the purported registration as notice to the whole world.

 

iv. That having regard to the subsisting court suit and the letter written by the lawyers of Catherine Kyei Amoatey to the Land Title Registry on 23rd August, 2017, the latter could not reasonably have given the Plaintiff a valid land title certificate on 8th November, 2017.

v. The site plan was not barcoded and was signed by a licensed surveyor instead of the Regional Surveyor.

vi. The purported signature in the name of Princeton Multipurpose Agency is forgery.

vii. The purported signatory and witness of Princeton Multipurpose Agency to

the transaction are unknown to the company.”

5.1 The 1st Defendant says that Catherine Kyei Amoatey is the rightful owner of the land in dispute.

A look at Exhibit A, the Land Certificate depicts it is coming from the Land Title Registry. The law is that the right of a registered proprietor of land acquired for valuable consideration shall be indefeasible. An indefeasible title means a complete assurance to all adverse claims on mere production of the certificate.

5.2 Section 111 of the Lands Act 2020, Act 1036 states:

“Conclusiveness of register

An entry in the land register shall be conclusive evidence of title of the holder of the interest specified in the land register.”

5.3 Section 119 of the Land Act 2020, (Act 1036) further states:

“Indefeasibility of registration

(1) Subject to subsections (2), (3) and (4) and to section 118, the rights of a registered proprietor of a parcel of land whether acquired on first registration or subsequently or by an order of a court are indefeasible and shall be held by the proprietor together with the right and privileges attaching to the parcel of land free from all other interests and claims.”

 

5.4 In AMEGASHIE V. OKINE [1992] 2 GLR 319, the court held that the certificate raises a rebuttable presumption and not a conclusive presumption of the holder’s title. The certificate can therefore be challenged provided evidence is led in proof of its irregularity.

5.5 By section 20 of the Evidence Act (NRCD 323) a rebuttable presumption imposes upon the party against whom it operates the burden of producing evidence and the burden of persuasion as to the non-existence of the presumed fact. The duty of producing evidence to question the validity of the certificate lies on the party challenging it.

5.6 In the case under consideration, the Defendants contend that Exhibit A was fraudulently procured. This goes to show that should the alleged fraud be proved, this court has the power to cancel the land certificate of the Plaintiff.

5.7 Section 195 of the Lands Act (Act 1036) states the conditions under which a court can rectify the land register. The section reads:

“Rectification by court

(1) Subject to subsection (2), the court may order the rectification of the land register by directing that a registration be cancelled or amended where the court is satisfied that the registration has been obtained or made by fraud, mistake or other vitiating factors.

(2) A court shall not order a rectification of the land register, so as to affect the title of a proprietor who has acquired land or an interest in land for valuable consideration unless

(a) The omission, mistake, fraud or other vitiating factor was caused by the Lands Commission;

(b) The proprietor had knowledge of the omission, mistake, fraud or other vitiating factor in consequence of which the rectification is sought.”

5.5 In the circumstance, for the defendants to sufficiently dislodge the burden placed on them by the production of the Plaintiff’s land title certificate, the Defendants ought to demonstrate sufficiently to this court, that the certificate

 

had been obtained by fraud, mistake or other vitiating factors and that the Plaintiff had knowledge of/caused or substantially contributed to the said fraud, mistake or other vitiating factors.

5.6 The locus classicus when it comes to fraud is the case of DZOTEPE V. HAHORMENE III [1987-88] 2 GLR 681 where the court made reference to Kerr on Fraud and Mistake, Ampah JA delivered himself as follows:

“I am of the opinion that they were entitled to do so, for fraud, whenever and wherever found, would vitiate all proceedings even the most solemn proceedings of a Court of Justice.”

5.7 The court in the case of Opanin Kwasi Asamoah v. Kwadwo Appeah and Nana Owusu Senya Civil Appeal No. 8/2000 delivered on 17th December, 2003 in discussing the effect of fraud made reference to the case of Okofoh Estate and said thus:

“Indeed, fraud vitiates everything. A relevant statement on this that will be found in OKOFOH EATATES LIMITED V. MODERN SIGNS LIMITED [1996-97] SCGLR 233 reads:

“An allegation of fraud goes to the root of every transaction. A judgment obtained by fraud passes no right under it and so does a forged document or a document obtained by fraud passes no right.”

“The lease that Asare obtained by fraudulently presenting himself as the owner of the house created no right nor passed any title to Asare. The judgment obtained with such lease similarly created no right nor passed any title.”

5.8 Also, in the case of HARIS V. HARIS, 438 PA 473 [PA. 1968] the Supreme court of Pennsylvania had this to say about fraud:

“The court below, in sustaining appellee’s preliminary objections, concluded that a judgment based on a forged instrument is merely voidable and consequently will not hamper the passage of good title to the considered a bona fide purchaser for value.

 

We disagree. The cases are legion at least with respect to negotiable instruments that a forged, fraudulent and spurious instrument is not binding on any person and is wholly inoperative to transfer any title or right to property whether the holder is an innocent or guilty purchaser.”

5.9 In the case of YAWSON V. MENSAH [2012] 38 MLRG 21, Anin Yeboah JSC (as he then was) stated:

“A land certificate is prima facie evidence of title to property; its foundation or root must be shown to be in no doubt at all.”

6.0 In the case of FENUKU V. JOHN TEYE [2001-2002] SCGLR 985 the Supreme Court in holding 5 of the headnotes held that:

“The law regarding proof of forgery or any allegation of criminal act in civil trial was governed by section 13(1) of the Evidence Decree, 1975 (NRCD 323) which provided that the burden of persuasion required proof beyond reasonable doubt…”

To succeed, therefore the law enjoins the Defendant in this suit to prove their claim of fraud beyond reasonable doubt.

6.1 In the case of THE REPUBLIC V. THE HIGH COURT JUDGE [2010] 1

GMLR 118, the Supreme Court stated that:

“Fraud is a serious sin against administration of justice and vitiates everything… the proponent must not only distinctly specify the alleged fraud, but also strictly prove same because it is not permissible to infer fraud from general situation or fact.”

6.2 On the issue of fraud, the Defendants testified per paragraphs 12 to 15 of their witness statement as follows:

“12. Any lease purporting to emanate from Princeton Multipurpose in favour of the Plaintiff was fraudulently procured.

13. A search conducted at the offices of the Lands Commission disclosed that the subject matter belongs to James Nii Mensah Okpoti Kodia, the grantor of the 3rd Defendant. See Exhibit 6.

 

14. The 3rd Defendant is the owner of the subject and the Plaintiff is merely

a trespasser who has no interest in the subject matter.”

6.3 Respecting the issue of fraud, these were the answers PW1 volunteered when he was cross examined on Exhibit A, a copy of the land certificate:

“Q: Take a look at Exhibit A. have you seen it. A: Yes.

Q: You would agree with me that Exhibit A does not contain any instrument by way of indenture showing the transfer to the Plaintiff.

A: I do not have the technical knowhow to know this.

Q: I am putting it to you that Exhibit A is an incomplete document. A: I do not have the capacity to determine that.

Q: Do you have the original copy of Exhibit A?

A: To the best of my knowledge this is what I have.

Q: Does the Plaintiff have the original copy of Exhibit A?

A: This is what the Plaintiff presented to his lawyers and this is what I have seen and to the best of my knowledge I cannot speak to any other documents he had presented to his lawyers or not aside this one.

Q: Having stated that you have the supposed authority from the Plaintiff if this court orders you to present the original copy of Exhibit A you will be able to present it?

A: I have indicated that to the best of my knowledge this is the document that I know.

Q:  If you look at Exhibit A, Exhibit A has no registration number. I am putting it to you.

 

A: I do not have the capacity to determine this.

Q: I am further putting you that Exhibit A has no folio number and volume number.

Q: Do you now have the original copy of Exhibit A with you? A: Yes.

Q: Take a look at this document and identify it. A: Yes.

By Court: Exhibit A should be replaced with the original.

Q: I am putting it to you that the original of Exhibit A does not have the indenture

showing the transfer from the Plaintiff’s supposed grantor to him.

A: I do not have knowledge to know whether it has the indenture or not.”

6.4 The allegations in (i) and (ii) read:

i. There was no indenture lodged at the Land Title Registry prior to the processing of the land title certificate.

ii. There is no record or proof of an application lodged at the Land Title Registry for registration.

Counsel for the Plaintiff submits that the only way to establish this allegation would be a confirmation or otherwise from the Land Title Registry as to whether the registry holds an indenture, any other form of transfer document, or an application for registration relating to the Plaintiff’s certificate.

6.5 Counsel contends that the Defendants have not furnished this court with any such enquiry and a response to same from the Land Title Registry or the Lands Commission for that matter. And that Defendants merely alleged without more.

 

6.6 Counsel further submits that in response to the Defendants’ request, the Plaintiff tendered the original of Exhibit A on 15th January, 2026, which included the Land Title Form L.R. 56B entitled “Transfer of part of Leasehold.” This document was duly executed by both Princeton and the Plaintiff, and appropriately stamped. Furthermore, the instrument specifies that it was plotted and references the Plaintiff’s Land Title Certificate Number GA 53661.

6.7 And that the Supreme Court in the case of MADAM RANDI LARTEY, SAMUEL NII OTOO ANKRAH AND MRS. AGNES ESI ANKRAH V. YAW ABOAH DJIN AND JUSTINY COMPANY LIMITED, Civil Appeal

No. J4/40/2022 delivered on 29th June, 2022 and reported on the Dennis Law online platform is instructive on this matter, thus;

“The forms referenced above are to be executed by the transferor without requiring an accompanying deed of conveyance. Therefore, there is no legal requirement for transferring a registered land by a conveyance. The mere execution of the transfer forms suffices to properly transfer property covered under a land certificate. All that was required by the law was to buy the form for the transfer of a part or whole of the land for the parties to fill, sign, and have stamped at the Land Valuation Division (Board).

The court further held that:

“The respondent during his evidence-in-chief tendered in Exhibit 3 which was his land certificate and a transfer of leasehold form. The transfer of leasehold form was received as stamped by the Lands Commission on 31st March, 2008. This form was duly filled out with an annual rent amount of Gh¢1,200 stated and was validly executed by the 2nd defendant. In line with PNDCL 152 and LI 1341, this sufficed under the law to properly transfer title to the respondent. Therefore,

 

the position advanced by the appellants and endorsed by the trial High Court judge was not supported by the law. We, accordingly, decline the invitation to take judicial notice of the erroneous position of the law.”

6.8 According to counsel for the Plaintiff, the Land Title Registry, being the entity responsible for the publication of notices of registration, it best placed to indicate whether or not a publication has been made in respect of the subject matter of the dispute. Once again the Defendants failed to furnish the court with any such enquiry and the response from the Land Title Registry. The Defendants merely alleged without more.

6.9 And that the Plaintiff’s grant involved the transfer of a portion of a leasehold from Princeton, an entity that already possessed a Land Title Certificate. Accordingly, the grant did not constitute a first registration, and there was therefore no legal requirement for publication.

7.0 Section 111 (3) of PNDCL 152 reads:

“A caveat shall be in the prescribed form accompanied by a statutory declaration made in accordance with the Statutory Declarations Act, 1971 (Act 389).”

Regulation 16 of LI 1341 states:

“A caveat required to be lodged under section 11 of the law shall be in Form 9 of the First Schedule.”

Unfortunately, the Defendants were unable to establish before this court that any such caveat was filed, once again they led no evidence to substantiate the allegation of fraud.

7.1 On the allegations levelled below:

 

vi. The purported signature in the name of Princeton Multipurpose Agency is forgery [sic]

viii. The purported signature and witness of Princeton Multipurpose Agency to the transaction are unknown to the company.

7.2 The Defendant claims that she had earlier, in 2002, procured the parcel of land in dispute from Princeton, and thus by reliance on the principle on nemo dat quod non habet, Princeton could not have made a subsequent grant to the Plaintiff.

7.3 Counsel submits that the Plaintiff disputes the 3rd Defendants’ claim of a prior purchase of the land in dispute, and even if the same were true, the Plaintiff maintains he is an innocent purchaser or bonafide purchaser of a legal estate for value without notice of the Defendants’ prior interest in the land in dispute.

7.4 Exhibit A, the Land Title Certificate is an official document coming from the Lands Commission for which reason I take same to be authentic. See section 151 of the Evidence Act, 1975, NRCD 323.

A perusal of the memorials depicts that the grantor of the Plaintiff Princeton Multipurpose Estate Agency acquired the subject matter land from Nii Adjei Okpoti Kodia and Sowah Klotia Kwame and caused same to be registered on 26th February, 1997.

7.5 The Plaintiff acquired the disputed land from his grantor and caused same to be registered on 8th November, 2017. A look at the site plan attached to Exhibit A depicts same was signed by the Director of Survey on 2nd November, 2017. Exhibit A was further signed by the Chief Registrar of Lands.

7.6 In the circumstance, I hold that per the above discussed, Exhibit A, his land title certificate was validly acquired since the Defendants failed to demonstrate beyond reasonable doubt that the Plaintiff fraudulently acquired same.

 

7.7 Counsel for the Plaintiff submits that the Plaintiff disputes the 3rd Defendant’s claim of a prior purchase of the disputed land and that assuming same were true, the Plaintiff maintains he is a purchaser for value without notice of any prior interest in the land in dispute. And that in APPOLO CINEMAS ESTATES (GH) LIMITED V. CHIEF REGISTRAR OF LANDS AND

OTHERS 1 GLR 167, clearly set the road map for any party seeking to rely on the said defence, when the court stated;

“The plea of an innocent purchaser or bona fide purchaser of a legal estate for value without notice is an absolute, unqualified and unanswerable defence against the claims of any prior equitable owner. The onus of proof lies on the person setting it up. It is not sufficiently made out by proving purchase for value and leaving it to the plaintiff to prove notice of it, if he can. The principal points of detail of this plea are four-fold, namely: (1) bona fide; (2) purchaser for value; (3) of a legal estate; and (4) without notice.”

The court in providing further clarity to the principles held:

“(1) The purchaser must act in good faith. Any fraud or sharp practice will forfeit the privileges of a purchaser in the eyes of equity, i.e. the purchaser must be innocent as to notice. In the instant case, everything points to the fact that the second and third defendants were sharp and tried to play it smart to defeat the ends of justice.

(2) Value does not necessarily mean full value. It means any consideration in money.

(3) The purchaser must have the legal estate properly vested in him (example by a conveyance or a genuine registration) before he could be safe.

 

(4) Without notice. Notice could be actual or constructive; for example, where the purchaser failed to conduct proper investigations as outlined above, he is deemed to have constructive notice, if not actual, of other encumbrances in the property.”

7.8 The Plaintiff has maintained that at the time of his purchase from Princeton, there was situate on the land, a warehouse and an office building behind the warehouse which were both situate on a large piece of land which was walled and gated and shown in Exhibit C series attached to PW2’s witness statement.

7.9 In the case under consideration, the Defendants counterclaimed against the Plaintiff for which reason they are also obliged to prove their title to the land.

8.0 Paragraph 14 of the Defendants witness statement reads:

“The 3rd Defendant is the owner of the subject matter land and the Plaintiff is

merely a trespasser who has no interest in the subject matter land.”

8.1 It is the evidence of the Defendants that a search conducted at the Lands commission depicts that the subject matter land belongs to the 3rd Defendant’s grantor. See Exhibit 6, a copy of the Search Report.

8.2 Paragraph 6 of the Defendants witnesses’ statement further reads:

“6. Again in the year 2002 after discovering that Princeton Multipurpose Estate had registered its interest in the subject matter land, we paid Princeton Multipurpose for its interest. See Exhibit 2, a copy of the indenture evidencing the said transaction.”

8.3 A critical examination of Exhibit 2 depicts that save that it has been stamped it is not registered. In contrast, the Plaintiff’s interest in the subject matter land is covered by Exhibit A, the Land Title Certificate.

8.4 The law is that after the plaintiff has established his acquisition and the boundaries of the land claimed, he or she must proceed to prove that since the acquisition, he or she has been in possession, or exercise overt acts of ownership over the land.

 

8.5 Where the Plaintiff is in possession, his claim to title is strengthened. In

MAJOLABGE V. LARBI & ORS. [1959] 1 WACA 253 at 516, Sir George Dean

C.J held:

“For my part the admitted fact that the Kickam people were first on the land, coupled with the evidence that they have been and still are in possession, raises a strong presumption in their favour as being owners of the Agona lands.”

8.6 Possession may be actual or constructive. It is actual when the plaintiff is in physical possession of the subject matter land. It is constructive when the plaintiff has right to possession or is exercising right of ownership over the land.

See AGO SAI & ORS. V. KPOBI TETTEY TSURU III [2010] SCGLR 762.

8.7 Wills, in Law of Evidence, (3 Ed. Pg. 62) states:

“The acts of enjoyment from which the ownership of real property may be inferred are very various, as for instance the cutting of timber, the repairing of fences or banks, the perambulation of boundaries of a manor or parish, the taking of wreck on the foreshore, and the granting to others licenses or leases under which possession is taken and held also the receipt of rent from tenants of the property; for all these acts are fractions of that, sum total of enjoyment which characterizes dominion.”

8.8 On the same point, Halsbury’s Laws of English (3rd Ed.) Vol. 15 P 285, Para 526

provides:

“In addition to possession, other indices of title are also admissible as evidence of ownership, for example, receipt of the rents and profits of the property, and the discharge of its burdens and repairs. On the same principle, granting lease, planting and falling timber, cutting of grass, and grazing cattle or turning off those of strangers, having been held evidence of the right to the soil; perambulations by the lord have been held evidence of the boundaries of a manor.”

 

8.9 In all these cases acts of ownership are receivable not as admissions, since they operate in favour of the party exercising them, but as evidence of possession and thus as proof of title.

9.0 PW1 testified per paragraphs 10 to 13 of his witness statement as follows:

“10. At the time of the acquisition, a warehouse and office/residential building had been constructed on the land.

11. Further, the entire perimeter of the property was walled with sandcrete blocks and completed with a gate at the frontage.

12. Since the acquisition in 2017, the Plaintiff as been using the warehouse to store his merchandise while the office/residential unit has served as an office and a living quarters for the Facility Manager of the Plaintiff’s company.

13. The Plaintiff, in addition to the assertion in the immediate paragraph above, has exercised overt acts of ownership over the land without let or hindrance from any quarters since his purchase in 2017 until sometime in September, 2018.”

9.1 In contrast the Defendants contend after the acquisition of the subject matter land, they constructed a two single room on the land and fenced same in 1995 and placed a caretaker on the land. See Exhibit 3.

9.2 Paragraphs 4 to 6 of the Defendants’ witnesses’ statement reads:

“4. Sometime in the year 1995, the Kplen We made a grant of the subject matter to the 3rd Defendant in the name of Catherine Amoatey.

1. In the year 2001 when attempts were made to commence work on the subject matter, it was discovered that James Nii Mensah Okpoti Kodia and Nii Laryea Kodia were pursuing a court action for declaration of title over the subject matter against the Kplen We. To ensure title I approached James Kodia and Nii Laryea Kodia to execute another lease in favour of the 3rd Defendant.” See Exhibit 1.

 

9.3 This clearly denotes that as at the time the Defendants allegedly put up the said single rooms on the disputed land they had no interest in the land to have put up same since at the time the subject matter land was registered in the name of Princeton Multipurpose Estate Agency.

9.4 There is evidence before me depicting that as at the time the Plaintiff acquired the land from Princeton multipurpose Estate Agency, his grantor had put up a warehouse and other structures on the subject matter land. See Exhibit C.

9.5 In fact there is further evidence before the court that Princeton Multipurpose Estate Agency also fenced the land and fixed a gate to same before selling the subject land to the Plaintiff.

9.6 If I may ask what were the Defendants doing at the time of the said developments?

This stems from the fact that there is no evidence before me that they ever challenged the Plaintiff’s grantor or resisted the said development by the grantor.

9.7 That the Supreme Court in WESTERN HARDWOOD LIMITED V. WEST AFRICAN ENTERPRISES LIMITED [1998-99] SCGLR 105 at 123-124 held

that

“…the law is that where a party has actual notice that the property is in some way encumbered he will be held to have constructive notice of all that he would have discovered.”

9.8 Further, the Supreme Court in ROSINA ARYEE V. SHELL GHANA & ANOR. held as follows:

“…it is equally his duty as a prudent purchaser to find out who must have erected the structure there. For registration under the law does not dispense with the requirements of the equitable doctrines of fraud and notice.”

9.9 Also, in AMUZU V. OKLIKAH [1998-99] SCGLR 141: EASTERN HARDWOOD ENTERPRISE LIMITED & ANOR. V. WEST AFRICAN

ENTERPRISES LIMITED [1998-99] SCGLR 105, the Supreme court held:

 

“Notice does not mean only notice of registration of the title but also notice of possession by the first purchaser, grantee or lessee or their agents as the case may be. That is why an intending purchaser must make reasonable enquiries in respect of the property he seeks to acquire. This involves legal searches at the Land Registry, but more critically it involves a physical inspection of the land to ensure it is free from any encumbrances.”

10.0 In the nutshell if I may ask, assuming the Defendants acquired the land before the development, did they raise any objection to the development. In contrast assuming they acquired the land after the construction, how come there is no indication that they acquired the land and the structures thereon together with the land in dispute.

10.01 In the circumstance, I find the Defendants’ story too true to believe. Exhibit 5 is a judgment the Defendants relied on in the prosecution of their counterclaim. A look at same depicts that neither the Plaintiff or his grantor were parties to same for which reason the Defendants cannot rely on same against the Plaintiff. Thus the judgment is not binding on the Plaintiff.

10.02 A review of the evidence on record depicts the Defendants failed to prove their counterclaim for which reason I accordingly dismiss same. Per the totality of the evidence adduced by the Plaintiff, I must indicate that he was able to demonstrate that per Exhibit A, a Land Title Certificate he is the true owner of the subject matter land.

10.03 Per the evidence of his witnesses, the Plaintiff is in possession of the subject matter land.

1. In the circumstance, I accordingly declare the Plaintiff as the owner of the subject matter land in dispute.

2. I further grant the Plaintiff an order to recover that portion of the subject matter land that the Defendants have trespassed upon and are working on.

3. I also grant the Plaintiff perpetual injunction restraining the Defendants, their agents, servants, workmen, assigns and privies from entering the land or interfering in any manner whatsoever with the Plaintiff’s ownership, possession, use and or enjoyment thereof.

4. I award the Plaintiff the sum of GhS50,000.00 as General damages.

5. Cost of GhS20,000.00 against the Defendants.