IN THE SUPERIOR COURT OF IUDICATURE
IN THE COURT OF APPEAL
VsttM 1A
CORAM: MARIAMA OWUSU l.A (PRESIDING) ISAAC DUOSE, J.A
C.J. HONYENUGA, J.A
ISAAC KWESI YEBOAH	---- PLAINTIFF/RESPONDENT
 
VRS
1.	GODWIN AHELE a.k.a MR. AGO
2.	AGNES NARTEY	-
3.	CLIFFORD ARMAH	-
- DEFENDANT/APPELLANT
1ST CO-DEFENDANT/APPELLANT 2ND CO-DEFENDANT/APPELLANT
 
CIVIL APPEAL
SUIT NO: 1-11119212008
 DECEMBER 15, 2011
Land Law - Title to land —ss. 166 & 168 Evidence Act, 1975 (NRCD 323) - Photocopy of document good as original - Onus on appellants to properly demonstrate lapses in judgment - Whether trial court relied on forged documents - s.24(1) Land Registry Act, 1962 (Act 122) - Non registration of document and consequences.
JUDGMENT
MARIAMA OWUSU, l.A.
On 20-9-2005, the Circuit court, Accra gave judgment for the Plaintiff. The court held amongst other things as follows:
"I declare that Plaintiff has title to the land in dispute.
I order the Plaintiff to recover possession of the land in Dispute as described in paragraph 4 of the statement of Claim and containing an approximate area of 0.46 acres.
The land is inclusive of the land now occupied by the 1st Co-Defendant. I order the Plaintiff to recover possession of the land in Dispute and adjudged to belong to him.
 
I order that the Defendant, the 1st Co-Defendant and
•	2nd Co-Defendant, their agents, servants and assigns be and are hereby restrained perpetually from interfering
or intermeddling in any way with the Plaintiff quiet
enjoyment of the land.
Cost of 05m (5 million) against Defendant. 05m
(five million) each against each of the Co-Defendants".
Dissatisfied with the decision of the court, the Defendants appealed to
this court.
The Grounds of Appeal for Defendant are:
a. The decision is against the weight of evidence on record.
b.	That the trial judge failed to direct itself in applying an interlocutory ruling as a judgment.
c.	That the trial court relied on forged documents of the Plaintiff which is also not registered to deliver judgment in favour of Plaintiff.

d.	The trial Judge failed to consider the defence of the Defendant and to recognize his prior possession.
e.	That the trial Judge failed to address issue as to whether land was at Sowutuom or Kwashieman.
' f. That additional grounds will be filed upon receipt of the record of proceedings.
Relief Sought: 
To reverse the decision of the trial Judge and enter judgment for Defendant.
For the Co-Defendants the following Grounds of Appeal were filed on their behalf:
1. The judgment is wrong in law.
2
 
2. The judgment is against the weight of evidence.
•	3. Further grounds of appeal to be filed when the record of proceedings is ready.
Before dealing with the arguments canvassed in support or against the
appeal, I would like to give a brief background of the case.
The Plaintiff at the court below issued a writ of summons against the
Defendant claiming the following reliefs:
1.	Declaration of title to all that piece or parcel of land described in the Statement of Claim and delineated on the plan annexed.
2.	Damages for trespass to the land.
, 3. Recovery of possession.
4. Perpetual Injunction restraining the Defendant whether by himself or agents, or assigns, or servants, etc.
The Plaintiff's writ of summons was accompanied by a 15 paragraph Statement of Claim in which he avers that, sometime in 1989, he =acquired a portion of Kwashieman land from the chief of Kwashieman
and the Head of Ahiaku family with the consent and concurrence of the
principal members of the said family. Plaintiff avers further that his
grantor executed a document in his favour which has been stamped at
the Land Valuation Board as LVB 130/6/2000 and it is the course of 'registration.
The Plaintiff gave the description of the land as "lying at North
Kwashiman-Accra and bounded on the North-East by the lessor's property 'measuring 277 feet more or less, on the South-West by proposed
toad measuring "295" feet more or less, on the North-West by Extension Kwashieman Road measuring 80 and 20 feet respectively and on the
South-East by lessor's property measuring 70 feet more or less and
containing an approximate area of 0.46 acre more or less".
The Plaintiff continues that he went into possession after the grant by
placing corner pillars on the land and entrusted same to a caretaker
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when he was travelling abroad. That this caretaker has been farming on the land and clearing same.
It is the Plaintiff's case that he returned to the jurisdiction somewhere in 1992 and the land was intact as the caretaker was still farming on the land.
Plaintiff avers further that, sometime in 2000, he put sand and stone on the land in preparation to developing it, and the Defendant went and destroyed them. He therefore reported the matter to the police and also his grantor. In consequence of his complaint, the Sempe Mankralo who is the Overlord of Kwashieman, invited the parties to his palace in an attempt to settle the matter but to no avail. The Plaintiff concluded that, unless restrained the Defendant if allowed to develop the land, it will cause him irreparable loss, as he cannot get a replacement hence this action. See paragraphs 1 - 15 of the Statement of Defence filed on the 3-5-2001.
On receipt of Plaintiff's writ of summons and Statement of Claim, the Defendant reacted and filed a Statement of Defence and Counterclaim denying Plaintiff's claim.
In particular, the Defendant avers that, the land in dispute is at Sowutuorn and not part of Kwashieman. He avers further that he acquired the disputed land in 1988 from the Sempe Stool and went into immediate possession by fixing corner pillar's and depositing sand and stone and erecting a wooden structure on the land. The Defendant continues that he had been in undisturbed possession of the land until 1995 when the Abola Piam Family confronted him and after a series of meetings he decided to pay monies demanded from him and obtained documents as the Sempe Stool was dragging its feet in granting him documents. That the Plaintiff used land-guard to demolish his two- ,room building which he intended to use as a block factory.

 
The Defendant maintains the Plaintiff is not entitled to his claim and
'counterclaim as follows:
1.	Declaration of title to all that piece or parcel of land situate at Sowutuom Accra, and bounded on the North by lessor's land measuring 114 feet more or less, on the South by Proposed Road measuring 114 feet more or less, on the West by Proposed Road measuring 80 feet more or less, on the East by lessor's land measuring 80 feet more or less and containing approximate area of 0.21 acre more or less.
2.	Damages for the demolition of Defendant's building.
3.	Perpetual Injunction restraining the Plaintiff, his agents, assigns, from further dealing with Defendant's land
At the close of pleadings, the following issues were set down for the trial
of the suit:
a.	Whether or not Plaintiff is entitled to his claim.
b.	Whether or not Defendant is entitled to his counterclaim.
c.	Whether or not Plaintiff or Defendant is in possession of the land.
d.	Whether or not the land the subject matter of dispute, is part of Kwashieman lands or is situate at Sowutuom.
e.	Any other issues arising out of the pleadings.
,At the trial, the Plaintiff testified and called 3 witnesses.
After PW2 had testified and been crossed examined, lst Co-Defendant applied and was joined to the suit. She then filed her Statement of
Defence and averred that she acquired the land in dispute from Akotia
Oworsika Stool which is also known as Asere Stool in 1986. Co 
/
Defendant further avers that the disputed land is situate at Sowutuom at a place popularly called Polo Junction and measures 200 feet x 70 feet. Co-Defendant continues that he gave one of the plots measuring 100 feet x 70 feet to a friend who had since developed it as far back as
4989.
She continues that she has since developed the remaining plot of land
measuring 70 feet by 100 feet as far back as 1999 with people living in
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the said building without any hindrance from Plaintiff or his agents.
•	The Co-Defendant therefore concluded that, the Plaintiff's action is
statute barred. See paragraphs I - 9 of the Co-Defendant Statement of Claim filed on the 10-12-03.
The case then proceeded.
One Clifford Clottey Armah also applied and was joined to the suit as 2nd Co-Defendant at the close of Plaintiff's case. He also filed his Statement of Defence denying Plaintiff's claim. In particular, the 2' Co-Defendant avers that, he acquired the disputed land from the Akotia Oworsika Stool also known as Asere Stool and that the land in dispute is at Sowutuom at a place popularly called Polo Junction.
He also described his land as follows:
"bounded on the North-East proposed road measuring 100-0 more or less, on the South-East by Agnes Nartey's property measuring 200-0 more or less.
On the South-West by Proposed Road measuringi 00-0 more or less. On the North-West by Kwashieman/ Ofankor road measuring 200-0 more or less
which is covering an approximate area of 0.46 acre".
The Defendant also testified and called 2 witnesses:
Pt Co-Defendant testified but did not call any witness. 2nd Co-Defendant testified and called one witness.
As stated supra, at the end of the trial, judgment was entered in favour of the PlAintiff against the Defendant and Co-Defendants. Defendant's counterclaim was dismissed hence this appeal.
In this appeal, the Plaintiff/ Respondent would be referred to as Respondçnt and Defendant as 1st Appellant whilst the 1st Co-Defendant would be referred to as 2nd Appellant. 2'' Co-Defendant did not file any process in this appeal.
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At this stage, let me put it on record that the two Appellants did not file 41	additional grounds of appeal as indicated in their Notice of Appeal.
In arguing the appeal, Counsel for the 1st Appellant on the ground that the judgment is against the weight of evidence on record, submitted that Exhibit A tendered by the Respondent is not the original copy but a
photocopy.
This photocopy has the signature of the Chief of Kwashieman superimposed on same. On Exhibits B and C, Counsel submitted that
they did not show the Respondent's land. He argued that since the 1st Appellant challenged the Respondent via its Statement of Defence and
cross examination that the land the subject matter of this suit is at
Sowutuom, it was wrong for the trial Judge to adjudge that the land is at North Kwashieman without more evidence to support same.
He submitted further that, Respondent mentioned the root of his title as
the judgment in Johnny Hansen V. Nii Lartey K. Ahiaku. But the
Respondent never tendered the said judgment in evidence or the judgment plans to show whether the disputed land fell within any judgment plan. He continued that, PW1 admitted the suit is still pending. It was therefore strange for the trial court to rely on the interlocutory decisions to decide the case.
'He referred to Exhibit 1, the document granted the 1st Appellant in 1995 by Abola Piam family and said this tally with the Abola Piam
registered document Exhibit 2 after superimposition. Counsel then submitted that Exhibit 2 is a registered document with land registration No. AC. 2887A/69. Again thc document being 30 years old, under NRCD 323 (1975) section 130 (2), the trial court erred in failing to give weight it deserved. Additionally, by the evidence of DW3, the area is
known as Sowutuom in the records of survey department.
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Counsel further submitted that the finding by the trial Judge that the
C land is at North Kwashieman without the benefit of any survey plan and superimposition of any document was made in error. Consequently this finding be reversed as the land is at Sowutuom per Exhibit 2.
On the Ground b:
That the trial Judge failed to direct itself in applying an interlocutory ruling as a judgment of the court.
On this ground, Counsel for the 1st Appellant submitted that, the trial Judge errcd when it held that the disputed land is part of Kwashieman lands. Counsel argued that in coming to this conclusion, the trial Judge relied on a customary arbitration ruling in suit No. L14/1982
titled Peter D. Quartey V. Nii Lartey Kwashie Ahiaku and Johnny Hansen IV. NU Kwashie Lartey Ahiaku which suit is still pending at the time of the judgment.
Counsel for the 1st Appellant submitted that, these cases were only 'mentioned in court, but nonetheless, the trial Judge relied on these decisions in his judgment and came to the conclusion that, the area being claimed by the parties is the same. He submitted this is wrong since the trial Judge is not a surveyor. He should have ordered a superimposition of the respective site plans of the parties to ascertain whether the parties are claiming the same area. Consequently this finding by the trial Judge that the area being claimed by the parties is the same should be reversed.
On Ground C of the Grounds of Appeal filed, that is;
"The trial Judge relied on forged documents of the Plaintiff which is also not registered to deliver judgment in favour of the Plaintiff'.
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On this ground, Counsel for the 1st Appellant submitted that, the
•	Respondent entered the disputed land for the first time in 2000. He
referred to the cross-examination of PW2 and submitted that, when the trial commenced, the 1st Appellant was not in court and Respondent tendered photocopy of his document Exhibit A which had the signature of the Chief of Kwashieman superimposed on it. Counsel therefore submitted Exhibit A was prepared in 2000. He invited this court to hold that, Exhibit A is a forged document.
On Ground d:
"The trial Judge failed to consider the Defence of the
Defendant and to recognize his prior possession"
Counsel for the Appellant referred to the evidence of the 1st Appellant and submitted that there is evidence to show that when 1st Appellant entered the land in dispute, it was bare and he built two-room structure on the land and fenced it in 1998.
Counsel submitted that, if the trial Judge had considered the defence and counterclaim of the 1st Appellant, it will have realised that, the latter waS claiming not through the Sempe nor Asere Stool but through the Abola Piam Twuma 'We' family. He further referred to Exhibits 1 and 2 and submitted that, these two documents are registered and they form the root of title of 1st Appellant. Consequently, the customary arbitration and the interlocutory decision involving Sempe and Asere Stool should not override the prior possession of the 1st Appellant which ,constitutes 90% of ownership.
The last Ground, Ground (e) states as follows:
"The trial court failed to address issue as to whether the
land was at Sowutuom or Kwashieman".

 
On this ground, Counsel for the 1st Appellant submitted that, the trial
• Judge erred when it determined that the land in dispute is situate at North Kwashieman. He argued that, North Kwashieman is not Kwashicman. Therefore any decision about Kwashieman should not be equated with North Kwashieman since the designations of North, South and West are usually used when land is close to a place.
tFurtherrnore the trial Judge not being a surveyor, his visit to the locus without any evidence on record, his statement in the judgment that the place is bustling with economic activities is a none starter since Sowutuom even if it used to be a village in 1960 is also bustling with development and economic activities now. Consequently, the use of economic activity as benchmark to determine where Sowutuom or North Kwashieman is, is rather unscientific and an error in law.

He referred to the case of Akoto H & Others V. Kavege & Other (1984/86) 2 GLR 365 and concluded that, in an action for declaration of title the Plaintiff must prove his title or his claim should fail. He continued that since an appeal is a reThearing, he invited this court to look at the entire evidence and reverse the judgment of the trial court based on the decision in Mamudu Wangara V. Gyato Wangara (1982/83) GLR 639.
On his part, Counsel for the 2nd Appellant after giving a brief fact of the case, stated that 2nd Appellant joined the suit after the Respondent and some of his witnesses had testified in court that the 2-1 Appellant's case is that she acquired the disputed land from the Oworsika Stool in 1986 also known as Mere Stool and that the land is situate at Sowutuom in Accra at a place popularly known as Polo Junction. That she had since developed her plot by putting a three bedrooms house on the plot and no one challenged her and that she had been living in the said house since 1999.
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Counsel then submitted that the judgment is wrong in law for the
following reasons:
1.	Failing to order a plan to be drawn to identify the proper owner of the land in dispute.
2.	Failing to correctly apply the provisions of Section 24(1) of the Land Registration Act of 1962 (Act 122).
3.	Failing to apply in favour of the 2nd Appellant section 10 of the Limitation Decree 1972 (NRCD 54).
4.	Failing to apply the provisions of the Land Development (Protection Purchases Act) 1960 Act 2 in favour of the 2111 Appellant.
Counsel then referred to a portion of the judgment in contention which mentiond Exhibits 5, 6, 7 and 8 which are judgments of the Supreme
Court and submitted that, there is nothing in these judgments and or Exhibits to show that the area in dispute forms part of Asere Stool land.
'Counsel then submitted that, the parties tendered their documents of title with judgments to support them. It was up to the court to evaluate the judgMents vis-a-vis the land in dispute before describing them as wild claims. The issue whether the land falls within the Kwashieman lands or Sowutuom could have been resolved by a composite plan. This *issue Counsel submitted, the trial Judge failed in resolving same and
this failure led to a substantial miscarriage of justice. He referred to
the Supreme Court unreported case of Civil Appeal No. 5/2001 titled Nana Akwasi Darko V. Nii Allotei Quarshie dated 14-5-2002 and submitted that the trial Judge failed to identify the exact location of the land in dispute either it is on Kwashieman family lands or Asere Stool Sowutuom lands.
On the failure to apply Act 122 of 1960 section 24(1) thereof, Counsel for the ' 2nd Appellant submitted that the Respondent tendered unregistered document which under the Act referred to supra, should
be of no effect until it is registered but the trial Judge relied on Exhibit
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A to hold that the Respondent is the owner of the land in dispute. •	Counsel cited the case of Amefinu V. Odametey (1977)2 GLR 135.
Counsel also had issue with the trial Judge in relying on the case of Amuzu V. Oklikah (1996-97) SCGLR 141 and submitted that, that decision was clearly dealing with the issue of priority in terms of Section 24 of Act 122 for competing two registered documents.
In the instant case, the court was dealing with an unregistered document simpliciter and not issue of priority. Consequently, the trial Judge reliance on Exhibit A to grant title to the Respondent is wrong in 'law. He therefore invited this court to allow the appeal on this Ground.
On the 2nd Ground of Appeal by the 2nd Appellant:
"The judgment is against the weight of Evidence"
On this ground, Counsel for the 2nd Appellant referred to the writ of summons and submitted that, the Respondent sued only the 1st Appellant and this is an admission of the fact that the 2nd Appellant was not a trespasser on the Respondent's land. It was after the visit of the court to the locus that the trial Judge asked the 2nd Appellant to join the suit. Counsel continued that, since the 2nd Appellant was not made a party right from the inception of the case, her evidence that she 'only became aware of the suit when the court visited the locus should be accepted as the truth.
AdditionlIy, Counsel argued, the evidence points to one fact and that is, the Respondent does not know the extent of his land, else he would have sued 2nd Appellant. Consequently, the evidence of the 2nd Appellant and the Respondent should have been treated by the court as
 
sufficient proof that the 2nd Appellant's land is at Sowutuom and did not form part of the Respondent's land at Kwashieman.
He referred to the case of Dompreh V. Pong & Ors (1965) GLR 126 SC
and submitted that the onus on the Respondent to satisfy the court that title to the land is vested in him was not discharged by merely relying on the weakness of the Defendant's case. He continued that since the 2nd Appellant has been living in her house between 1986 and 2003, Dc Facto actual possession which she had was in itself proof of prima facie title to the land. Counsel cited Oppong Kofi & Ano. V. Fofie (1964) GLR 174 SC in support of this assertion.
On section 10 of the Limitation Decree, counsel for the 2n1 Appellant submitte& that there is evidence on record that his client has been in undisturbed possession of the land in dispute since 1986 to 2003 a period of 17 years. That being the case, the 2n1 Appellant acquired a prescriptive title to the land and the Respondent is estopped from bringing the present action to recover the land in dispute from the 2nd Appellant. All these pieces of evidence, Counsel submitted, in the absence of a composite plan go to show that the land in dispute does not form part of Kwashieman lands.
The last point canvassed in support of the 2nd Appellant's ease on this ground is that, the 2nd Appellant acquired her land in good faith and put up her building in good faith. The trial Judge should therefore have
,invoked the provisions of the Land Development (protection of purchase' r) Act 1960 Act 2.
He referred to the cases of:
1.	Dove Vs. Wuta Ofei (1988) GLR 299, 300
2.	Vanderpuic V. Golightly & Ors (1965) GLR 454 SC
Based on these two decisions, Counsel for the 2111 Appellant submitted that the judgment is against the weight of evidence. He invited us to
13
 
'allow the appeal on this Ground and dismiss the Respondent's claim
•	and judgment entered for the 2nd Appellant.
Based on the foregoing, Counsel invited us to allow the appeal and set
aside the decision of the trial court together with the cost awarded
against the 2nd Appellant.
In response to the submissions by Counsel for the 1st Appellant, Counsel for the Respondent submitted that the evidence adduced at the trial supports the findings of fact made by the trial Judge and this court should not interfere with them. Counsel referred to the case of Ababio V. Bekoe 11 (1996-97) SCGLR 392.
Counsel after referring to the respective claim of the parties, referred to
the 1st Ground of Appeal, i.e.
"The judgment is against the weight of evidence".
On Exhibit A, Counsel for the Respondent submitted that Exhibit A is a photocopy of the original indenture. The Respondent informed the court that the original copies were at the Lands Commission for the
2
processing of his application for registration of his title. At the trial he was not requested to produce the original. Secondly, Exhibit A was tendered;without objection. It is too late in the day for the Appellant to now seelç to request for the original. If the 15t Appellant had issue with Exht A, he should have requested for the production of Exhibit A. Besides, by NRCD 323, a photocopy is as good as the original.
On the ' issue whether the disputed land is at Kwashieman or Sowutuom, Counsel for the Respondent submitted that, the trial Judge reached a conclusion based on the evidence adduced at the trial, the parties and their witnesses and the Exhibits tendered. On the Respondent root of title, Counsel for the Respondent submitted that, the Respondent never mentioned that his root of his title is the
 
14
 
judgment of Johnny Hansen V. Nii Lartey Kwashie Ahiaku. He only said he is aware of the said judgment in respect of Kwashieman lands.
Counsel for the Respondent referred to the evidence of Pt Appellant and submitted that, he is not a truthful witness. In that, he cannot obtain a grant of the same piece of land from two different people. He has no valid title as rightly determined by the trial Judge. The reference to two dates of acquisition i.e. 1986 and 1995, according to Counsel is a confusion aimed at getting priority in time over the acquisition of the Respondent.
In additiàn, Exhibit 2 is not the site plan of the It Appellant. Again, it was not tendered to show that it covered the entire land in dispute. Moreover, the judgment whose plan is Exhibit 2 did not cover Kwashieman and thus was not conclusive on the matter.
On the point that the trial Judge should have ordered the superimpositions of a plan on the plans by the parties, Counsel submitted that survey plans and superimpositions are supposed to assist a trial Judge to come to a decision. They are not compelling on the Judge. Counsel argued that, the court analyzed the probative value of Exhibit 2 and stated that it could not rely on it in determining the matter.
On the 2nd Ground of Appeal:
"The trial Judge failed to direct itself in applying Aninterlocutory ruling as aJudgment of a court"
Counsel submitted that, the trial Judge took cognizance of the rulings and judgment in respect of Kwashieman lands and the various descriptions given by the parties to the area where their land is situate and concluded that he accepted the Respondent's version.	He
15
.:	.:	•.••.••.••••...•.	..
 

submitted that, that position of the trial Judge was taken out of
•	context.
On the 3rd Ground of Appeal
"The trial Judge relied on forged documents of the
Respondent which is also not registered to deliver
judgment in favour of the Respondent".
Counsel for the Respondent submitted that, it is settled law that, proof of forgery or allegation of a criminal act in a civil law is proof beyond reasonable doubt. He referred to Section 13 (1) of the Evidence Decree 1975 (NRCD 323) and the case of Fenuku V. John Teye (2001-2002) SCGLR 985, 1003 and argued that there is no evidence that, the signature is a forgery. Additionally the Ahiaku family denied 'their Head's signature was forged.' On the contrary, the successor identified the signature and said he was there when same was put on the document. The effective date is the date the transferor and transferee executed the document. These are the signatures that created the agreement. The Oath of Proof of the signature of the Registrar do not take away the efficacy of the document. Besides, the date of oath of proof and the swearing before the Registrar is always later in time to the date of execution. In any case, Counsel argued the 1st Appellant's document was also sworn to by the witness of the transferor after the date of alleged execution by the Abola Piam family.
On the 4th Ground;
"The trial Judge failed to consider the defence of the Defendant and to recognise his prior possession".
Counsel for the Respondent submitted that it is not true, the trial
Judge did not consider the defence of 1st Appellant. He continued that, the defence was hollow, bereft of truth and substance and exposed the 1st Appellant as a trespasser.
16

 

. On the contrary, the trial Judge evaluated the cases of the 1st and 21x1 Appellants and concluded why he found their case unbelievable. Counsel continued that, 1st Appellant counterclaim is a separate action. The Appellant must prove her counterclaim. He referred to the cases of
Happee V. Happee & Aito. (1971) 1 GLR 104 and Kamara V. Traore (1968) GLR 1009.
Counsel further submitted that, the Appellant pleaded he acquired his land in 1988. When he testified he said he acquired the land in 1995. Counsel then submitted that the 1st Appellant never entered the land in 1988. The pleading was skewed to reflect 1988 to have apparent priority of time over that of the Respondent. The inconsistency in the pleading of the 1st Appellant and his testimony in court only shows that the latter, is not a truthful witness.
Furtherthore, in his pleadings, the 1st Appellant stated he acquired the land from the Sempe Stool. However, in his evidence, he said he bought the land from a citizen of Serape called Nii Samoa. This according to Counsel for the Respondent shows that the I st Appellant is not a truthful witness and his evidence must not be believed.
On the other hand, the Respondent was able to produce a representative of his grantor to confirm that, it is the Kwashieman people who sold the land to the Respondent, whilst the 1' Appellant could not produce this Nii Samoa or his representative. Additionally, Exhibit 1', the indenture tendered by the 1st Appellant as coming from his grantors the Abola Piam family, showed that it is a recently made ,document. To make matters worse, the 211 Co-Defendant said he granted a licence to the Appellant to be on the land.
The 1st Appellant admitted paying t250,000 to the 2t1 Co-Defendant but said it was a gift whilst the latter insisted it was consideration for the license so granted to the 1st Appellant. Counsel for the Respondent
17

 
further highlighted the contradiction in the 1st Appellants case. For 41,	instance, whilst the latter in his evidence said the alleged land given to
him has a road passing through it, his witness DW2 insisted no road
passes through the land allegedly granted to the 1st Appellant.
Again, whilst the 1st Appellant said there was no sand and stone when he first went onto the land, DW1 admitted in cross-examination there were trips of sand and stone on the land when it was allegedly demarcated to the 1st Appellant.
On Ground 5;
"The trial court failed to address the issue as to whether the land was at Sowutuom or Kwashieman".
On this ground, Counsel for the Respondent submitted that, Counsel for the 1st Appellant has criticized the trial Judge's finding that the disputed land is at North Kwashieman without the benefit of any survey plan and superimposition of any plan was made in error. He argued that, the fact that the trial Judge made a determination on this issue shows that he addressed the issue. North Kwashieman suggests that it is part of Kwashieman.
He continued that, no argument or evidence was led by the l st Appellant to show that North Kwashieman is Sowutuom. Counsel concluded that, the trial Judge reviewed all these pieces of evidence and put the necessary weight on 'them. He invited this court not to interfere with the findings of the trial Judge. He cited the cases of Ababio V.
,Bekoe II (1996-97) SCGLR 618 and invited this court to dismiss the appeal of the 1st Appellant as bereft of any merits.
On the appeal of the 2tA Appellant, after stating the case of the 2nd Appellant, which is that, she acquired the land from the Akotia Stool, otherwise known as the Asere Stool. That she acquired two plots and
 
18
 
the land is situate at Sowutuom. That she acquired the land in 1986 •	and had developed one plot as far back as 1999. On the 211d Appellant's Ground of Appeal which is;
"The judgment is wrong in law"
On the point that the judgment is wrong in law because the trial Judge failed to order a plan to be drawn to identify the proper owner of the land, Counsel for the Respondent submitted that, the making of the order is discretionary and it is done when the court finds it just to do so. Besides, the evidence of any expert is only to assist the Judge and not to bid him.
Additionally, none of the party applied to the court to order the drawing of a composite plan. Besides, the 2nd Appellant did not have any document covering her land. She would have lost right from that point if the order had been made.
On the issue of registration and the application of Section 24 (1) of Act 122, Counsel for the Respondent submitted that, the Respondent led evidence to show that his documents have been sent for registration. Counsel argued that this piece of evidence was not challenged and no contrary evidence was led before the court.
Furthermore, all the documents of title that featured in the case had not been registered and the issue of priority did not arise. The 2nd Appellant and 2nd Co-Defendant themselves did not tender a registered document and it lie ill in their mouth to seek to build a case on registration of title.
On the issue of Section 10 of the Limitation Decree, 1972 (IVRCD
54), Counsel for Respondent submitted that, same does not inure to the benefit of the 2nd Appellant for the simple reason that, the issue of ,limitation was never raised as a defence. No evidence was led to enable
19

 
the trial Judge apply the law. The trial Judge therefore was not wrong
•	in relying on same.
On the Land Development (Protection of Purchase Act) 1960 Act 2,
Counsel for the Respondent submitted same is not applicable to her. He continued that, a person invoking the provisions of the Act must be a person who acted in good faith. Counsel submitted, the 2nd Appellant 'cannot by any definition be a person acting in good faith for the following reason:
1. At the time of the institution of the action, there was no building on the land.
: 2. It was after the injunction that 2nd Appellant started building.
3.	When the 2nd Appellant started work on the land and was confronted, she identified her interest as that of the 1st Appellant.
4.	She hid behind the 1st Appellant when the latter had leave of the court to carry out block making business on the land.
5.	She only joined when she realised that a total restraining order was about to be slapped on her.
Based on the foregoing, Counsel for the Respondent submitted that, the 2nd Appellant acted in bad faith by building the two-room building on the land. That kind of situation is not protected by Act 2. Moreover, the Act is founded on the ground that the person sought to be protected has a defective title. Besides, the Act does not compel the trial Judge but gives it the discretion. Based on the foregoing, Counsel submitted the 2n1 Appellant is not entitled to the benefit of the provisions of Act 2.
On the Second Ground of 2" Appellant's appeal;
"The judgment is against the weight of evidence"
Counsel for the Respondent submitted this ground of appeal which was not proved by the 2nd Appellant. He argued that, the Respondent led
cogent evidence to prove how he became the owner of the land and the g
overt acts of ownership he displayed. On the other hand, the 2nd
20

 
Appellant and 2nd Co-Defendant were not consistent in their claim and acts of possession of the land. Besides, the 2nd Appellant who was found on the land after the injunction insisted her fortunes are fixed to that of the 1st Appellant.
In those circumstances, the Respondent was not obliged to sue everybody. Additionally, 2nd Appellant had no document to prove her ownership of the land. The 1st Appellant was not sure who he bought the land from, i.e. whether from the Sempe Stool or Abola Piam family. On the other had the Respondent was consistent in his claim to the ownership of the land. He gave both oral and documentary evidence to support his claim.
Based on the foregoing, Counsel for the Respondent invited this court to dismiss the appeal of the 211t Appellant as well as same is without merit.
On 26-1-2010, Counsel for the Respondent filed Notice of Intention to Raise Preliminary Objection. The object was to the effect that, the 1st Co -Defend ant/Appellant attached an Exhibit 'SCI' to his written submissions filed on the 27-62007 which is not permitted by the rules and same ought to be expunged from the record. Exhibit 'SC1' 'attached to the Appellant's written submission is a judgment of a court. This is not evidence i.e. new evidence contemplated in Rule 26 of the Court of 24ppeal rules, 1997, Cl 19. This objection is not well founded and same is hereby over ruled.
'From the Record of Appeal, when the Respondent issued his writ of summons on 3-5-2001, he followed it up with an application for an order of Interim Injunction.
In the affidavit in opposition, the Appellant averred that he constructed a fence wall around the land and also undertook the construction of a two-room structure on the land to use for block
21
 
making factory but the Respondent caused same to be demolished on
•	two occasions. He attached Exhibits B and C. See paragraph 7 of the
affidavit of Godwin Ahele filed on 24-5-01 at page 23 of the Record of
Appeal.
The trial court after listening to the arguments of both Counsel and the
affidavits of the Respondent and 1st Appellant, restrained both parties their agents, servants, workmen, assigns from entering upon or
intermeddling with and or developing the land the subject matter in dispute pending the final hearing and determination of the suit. This order is dated 20-9-2001 and can be found at page 41 of the Record of
Appeal.
In June 2002, the 151 Appellant filed an application for the variation of
the Order supra. In the supporting affidavit, the 1st Appellant avers
that:
"That my lease on the land where I operate has expired and I have to pack all my block making equipments from
the land since the owner of the land wants to use same".
This application was granted and the trial court varied the order of
!injunction dated 20-9-2002. 1st Appellant was allowed to go back onto
the land to carry on his block business.
In his Statement of Defence, 1st Appellant avers that he acquired the disputed land from the Sempe Stool in 1988 and went into immediate possession by fixing corner pillars and depositing sand and stone and erecting a wooden structure on the land. in his evidence under oath,
he said he acquired a piece of land at Sowutuom in 1995 and deposited sand and stone on it. 1st Appellant continued that sometime in year 2000, the Respondent demolished the two-room structure he had
erected on the land.
22

 
From the pieces of evidence of the 1st Appellant and his averments, when the Respondent applied for injunction on the land and the former applied for the variation of the order of injunction restraining the parties, there was no structure on the land.
Secondly, the 1st Appellant from his own showing in June 2002, his lease on the land has expired. The question is from where did the 1st Appellant obtained Exhibit 1? Exhibit 1 is dated 24-2-1995 and the lease granted to the 1st Appellant was for 99 years. See paragraph  of Exhibit 1. In this case, the Appellant counterclaimed for a declaration of title. The position of the law is that in an action for declaration of title, the burden of proof is always put on the Plaintiff to satisfy the court on a balance of probabilities but where the Defendant files a counterclaim, then the same burden of proof would be used in evaluating and assessing the case of the Defendant just as was used to evaluate or assess the case of the Plaintiff against the Defendant. See
the case of Jass Co. Ltd. & Ano. V. Appau & Ano. (2009) SCGLR
269.
The 1st Appellant's first ground of appeal is that:
"The judgment is against the weight of evidence".
The reasons being that, first Exhibit A tendered by the Respondent is not the original copy but a photocopy and this photocopy has the Chief of Kwashieman's signature superimposed on it.
My simple answer on this submission is that, Exhibit A was tendered without objection. Secondly, by sections 166 and 168 of the Evidence Act, 1975 (NRCD 323), a photocopy of a document is as good as the original. Thirdly, the Respondent called a member of the Ahiaku family, who incidentally happened to be the successor of his grantor. This witness testified and said the signature on Exhibit A is genuine. He again identified the signature on Exhibit A as that of the late Kwashie Ahiaku and said he was present when the former signed
23

 
and or executed Exhibit A. It is too late in the day for the 1s1 Appellant to raise these concerns.
On the point that the trial Judge relied on an interlocutory decision to decide the case, it is not correct that the trial Judge relied on interlocutory decisions to give judgment for the Respondent. In his Judgement, the trial Judge said the description of North Kwashieman given by the Respondent's grantor is more acceptable. This is what he said:
"I believe the description of North Kwashieman given to it by the grantor of the Plaintiff is more acceptable. If the Headman of Kwashieman is appointed by the Sempe Mantse, then the issue as to who controls Kwashieman lands becomes a non issue.
On Wednesday 21-9-1966, a customary arbitration was held to determine the dispute between the Asere Mantse and Sempe Mantse as to who has the right to install the Headman of Kwashieman. The arbitration panel
heal ded by the late Nii Amugi II, Ga Mantse, decided that, the right to install a chief for Kwashieman falls on the Sempe Mantse.
It is no wonder that, in suit No. L1411982, Peter D. Quartey Vs. Nii Lartey Kwashie Ahiaku, and Johnny Hansen Vs. Nii Ewashie Ahiaku, His Lordship P. V. Oséi Hwere J.A. sitting as additional High Court Judge refused to grant an interim injunction to restrain Kwashieman Stool then represented by Nii Kwzshie Lartey Ahiaku V. from alienating Kwashieman lands. The same position was taken by his Lordship Armah J. in suit No. L14/82 and L25182 titled Johnny Hansen & Ors. Vs.
24
 

Kwashie Lartey Ahiaku & Ors." (The emphasis is mine)
From the quotation supra, the trial Judge did not rely on the rulings in the two cases to give judgment. He only mentioned them in passing vis-k-vis the arbitration dated 21-9-1966.
Besides, the description of the land by 2n11 Co-Defendant in his Statement of Defence filed on the 12-3-2004, paragraph 7 thereof supports this finding that the land is at North Kwashieman as the description mentioned one side of the road as being bounded by the Kwashiman/Ofankor road. The paragraph reads:
"The land is bounded on the North East proposed road measuring
100-0" more or less, on the South-East by Agnes Nartey's
property, measuring 200-0" more or less, on the South-West
by proposed road measuring 100-0" more or less, on the North-West
by Kwashieman/Ofankor road measuring 200-0" more or less, which piece of land is couering a approximate area of 0.46 Acre."
Again 2nd Co-Defendant says he granted 1st Appellant his land even though the latter has denied this. According to DW2, Alphonse Aryeetey, the 1st Appellant asked him to survey his land for him which he did. He said the 1st Appellant did not bring his site plan but he showed him Exhibit 2. This witness admitted under cross-examination that wheb Exhibit 2 was brought to him, the 151 Appellant's land was not indi&tted on it. He also admitted he did not know the boundaries of the land given to the 1st Appellant. He also admitted there is no road that pass es through the 1st Appellant's land.
This is what he said under cross-examination by Counsel for the Respondent:
Q. Before he gave you Exhibit 2, was his alleged piece of land shown
on the document? A.	No'
25

 
ç. You agree with me that, the alleged land of the Defendant has been clearly delineated on it.
A. Yes
So the question is, how did DW2 plot 1st Appellant's land on Exhibit 2,
if he did not know the boundaries of the 1st Appellant's land?
Again, Exhibit 2 covers land about 726 acres or 10.467 sq. miles and on it, Sowutuom is indicated as a village in ruins. In addition, the lst
Appellant's land is indicated by a dot on Exhibit 2 and it is far from
Sowutuom, the village in ruins.
If all these pieces of evidence are put together against Exhibit 1, the ist Appellant's document granted to him in 1995 which did not include a site plan as his site plan is dated 2001, but even that, he did not give this site plan to DW2 to plot his land on Exhibit 2, then the big question is how did DW2 arrive at the conclusion that, 15t Appellant's land is at Sowutuom?
Additionally, the argument that Exhibit 2 is a registered document and
should have been given weight by the trial Judge is flawed for the simple reason that, if the 1st Appellant did not give the description of his land to DW2, how did the latter come to plot 1st Appellant's land on
Exhibit 2.
The trial Judge adverted his mind to all these pieces of evidence and 'came to the conclusion he did. In this appeal, the 1st Appellant has not
demonstrated the pieces of evidence on record that was wrongly applied against him or the pieces of evidence if applied in his favour would have
turned the decision in his favour. See the case of Abbey & Ors. Vs. Antwi V (2010) SCGLR 17, 20-21, holding (4) where their Lordships held amongst other things as follows:
"It was well settled that where an Appellant has alleged
that the judgment of the trial court was against the weight
26
 
of evidence, the appellate court would be under an obligation
•	to go through the entire record of appeal to satisfy itself that
a party's case was more probable than not. Further, the Appellant has to properly demonstrate what lapses he was complaining about (the emphasis is mine)

From the foregoing, grounds a, b and d of the Grounds of Appeal filed are hereby dismissed.
On Ground C:
"That the trial court relied on forged documents of the Plaintiff which is also not registered to deliver judgment in
favour of Plaintiff'
I have already held that there was nothing fraudulent about Exhibit A
as the Respondent's witness identified the signature of the late Ahiaku V. on the document. On the point that Exhibit A was not registered
and therefore same should not have been relied on to give judgment to
the Respondent. The Supreme Court in the case of Amuzu Vs. Oklikahl (1998-99) SCGLR on registration held 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. Consequently, a later instrument could only obtain priority over an earlier one by registration under
section 24(1) of (Act 122) if it was obtained without notice
and fraud of the earlier unregistered document".
Relating this case to the case under consideration, Exhibits A and 1 are dated 12-2-1989 and 24-2-1995 respectively. Both Exhibits A and 1 =are not registered even though stamped by Land Valuation Board.
Clearly in terms of priority the Respondent's Exhibit A should prevail
over 1st Appellant's Exhibit 1. Secondly, the 1st Appellant denied seeing
any trips of sand and stone on the land but his witness DW1 who
27

 
claimed he was among the persons who demarcated the land for the 1,1
Appellant's said he did not know how many trips of sand or stone were
on the land.
This implies that there were some trips of sand and stone on the land and this constitutes notice. This ground of appeal too has not been
made out and same is hereby dismissed.
This brings me to the last Ground of Appeal;
"This trial court failed to address the issue as to
whether the land is at Sowutuom or Kwashieman"
I have already held that Exhibit 2 which the 1st Appellant is relying on to say that the disputed land is at Sowutuom does not support his
contention. The reason being that, on the face of Exhibit 2, Sowutuom is indicated as a village in ruins. Secondly, the village in ruins is far
from the dot that is said to be the 1st Appellant's land. This dot has no dimensions. Thirdly, DW2, the surveyor who plotted the 1st Appellant's land on Exhibit 2 said he did that without a site plan and also he was not shown the boundaries of the 1st Appellant's land.
Besides, whilst the Respondent's 1989 indenture was accompanied by a site plan,t the 1st Appellant's indenture of 1995 did not have a site plan. Then there is the evidence by 2nd Co-Defendant that he granted the
land in dispute to the 1st Appellant for the latter to operate his block making factory and that the latter paid him 4250,000 for the licence so granted to 1st Appellant. 1st Appellant admits paying t250,000 to the 2nd Co-Defendant, but says it was a gift. Not only this, 1st Appellant
said he first acquired the land from the Sempe Stool which Stool is the
Overlord of Kwashieman.
The Sempe Stool had denied granting the land to the 1st Appellant and
when he trespassed on to the land he was warned that the land is for
 
Again, Exhibit 3, the indenture of the 211 CO-
28
 
Defendant, the site plan attached to same, one can see that it is the same land being claimed by the Respondent and one of the boundaries given by the 2'"' Co-Defendant is Kwashieman/Ofankor road i.e. on the North-West. The 2nd Co-Defendant's indenture is dated 1992. The trial Judge looked at all these pieces of evidence and concluded that, the land is situate at Kwashieman. The trial Judge therefore addressed the issue of whether the disputed land is at Sowutuom or Kwashieman. Counsel for the 1st Appellant also complained that the trial Judge erred by failing to order a superimposition of the respective site plans of the parties.
My simple answer to this submission is that, none of the lawyers or the parties applied to the court for such an order. The trial Judge therefore did not err in not doing so. Besides, 2nd Appellant did not tender a site plan, so what would have been her fate? But more importantly, expert evidence is only a guide for the trial Judge. He is not bound by it and can make his own inferences from the available evidence. See the ease of Fenub!u Vs. John Teye (2001-2002) SCGLR, 985, 990 holding (6) where thir Lordships held as follows:

"The principle of law regarding expert evidence was that the trial Judge need not accept any of the evidence offered. The Judge was only to be assisted by such expert evidence to arrive at a conclusion of his own aftr examining the whole of the evidence before him. The expert evidence was only a guide to arrive at the conclusions..."
From the foregoing, there is no merit in the appeal of the lst Appellant and same is hereby dismissed.
This brings me to the appeal filed by the Co-Defendants;
"The judgment is wrong in law"
29

 
On this ground, Counsel for the 2nd Appellant gave four reasons why the judgment is wrong in law.
1. Failing to order a plan to be drawn to identify the proper owner of the land in dispute.
I have already held that, none of the lawyers or the parties in this case applied to the court for such an order to be made. Secondly, such a plan is only a guide. Thirdly, the 2n1 Appellant both in her defence and her evidence did not give a description of her land just that her land measures 200 feet by 70 feet and was granted to her by Asere Stool in 1986. The boundaries were not given. The trial Judge did not err in
not ordering a plan to be drawn.
•The second reason for saying the judgement is wrong in law is that the trial Judge failed to correctly apply section 24 (1) of the Land
Registration Act of 1962 (Act 122). I have already held that non
registratiOn of the Respondent's Exhibit A per se does not mean the document is invalid. See the case of Amuzu Vs. Oklika cited supra.
The third reason for saying the judgment is wrong is that the trial Judge failed to apply section 10 of the Limitation Decree 1972 (NRCD
54).
From the 2nd Appellant's own showing, he developed her land in 1999. 'The friend who she claimed to have given a portion of her land to was not called. From 1999 to 2001 when the suit was filed would not be 12 years. There is no merit in this submission.
The last point is that the trial Judge failed to apply the Land
'Development (Protection Purchasers Act) 1960, Act 2 in favour of the 2nd Appellant.
From the series of application of Interim Injunctions filed by the Respondent, the latter tried to protect his land. In his affidavit in
30

 

opposition to the application for joinder of the 21d Appellant, the
S Respondent deposed that when the former was served with the application she said, her case is like that of 1st Appellant and they stand or fall together.
This averment was not denied by the 211d Appellant and it was too late in the day for her to say that he was not aware of the suit until a later date. Besides, the 211d Appellant has not even shown any document as to title. She merely said she acquired the land from Asere Stool. She also did not call any person to substantiate her claim, neither did she tender a document to show her defective title. The 211,1 Appellant is not a person contemplated by Act 2. See the case of Klu Vs. Konadu Apraku (2009) SCGLR 741, 743 holding (2) where their Lordships held;
"The trial Judge had held, rightly on the evidence and the findings, that the Co-Defendant's claim of having acquired title to the disputed land had been
a complete simulation emanating from testes diabolices qul magisfama quam fame moventur. All that was a grand design to over-reach the Plaintiff.
Such conducts and acts of the Defendants would not attract protection under the provisions of the Land Development (Protection of Purchases) Act, 1960 (Act 2), which was an Act to protect purchasers of land and their successors-in-title whose titles were found to be defective after a building had been erected on the land".
In the instant case, what title are we being called to protect when the 21d Appellant even failed to tell the court the nature of her acquisition. Was it a purchase, gift, transfer, etc.? From the foregoing, the 1st ground of the 2nd Appellant's appeal fails and same is hereby dismissed.
 

This brings me to the second and last ground of appeal of the 2nd
•	Appellant and that is;
"The judgment is against the weight of evidence".
The Supreme Court had held in a number of cases that, where an Appellant complains that a judgment is against the weight of evidence, he is implying that, there are certain pieces of evidence on record which if applied in his favour, could have changed the decision in his favour or certain pieces of evidence were wrongly applied against him. The onus is on such an Appellant to clearly and properly demonstrate to the appellate; court the lapses in the judgment being appealed against. See the following cases:
, 1. WIN Vs. Musa Baako (2007-2008) SCGLR 686
2.	Tualcwa Vs. Bosom (2001-2002) SCGLR 61
3.	Abbey & Others Vs. Antwi (2010) SCGLR 17,20
4.	Aryeh & Akapo Vs. Ayaa Iddrisu (2010) SCGLR 891, 894,
holding 1
In the instant case, what are the pieces of evidence that was wrongly
applied against the 2nd Appellant or which when applied could have turned the decision in her favour. She did not even give the boundaries
of her land. She did not even tender a receipt or any evidence of epurchase or acquisition neither did she call her grantor to substantiate
her claim, not even a building plan.
All she said was, she had built three bedrooms and her daughter is living in it since 1999. This daughter was not called. Her evidence was hollow as compared to that of the Respondent. It is true the 2" Appellant did not counter-claim and therefore no burden is put on her but she says she has been in possession of her land since 1999 and wants the protection of the law. Her bare assertion without more that she has been in possession is not enough.
 
32
 
Mariana Owusu (Ms.) (Justice of Appeal)
 

 
'C. Atta Akyea for the Plaintiff/Respondent
• Nathaniel Myers for Defendant/Appellant




