IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL;
ACCRA - AD 2010
CORAM: ABBAN (MRS) J.A (PRESIDING)
DUOSE, J.A
OFOE, J.A
H1117012010 17TH NOVEMBER, 2011
F.K.A LIMITED -----¬ PLAINTIFF/RESPONDENT VRS
ADJEI BOADI	-------DEFENDANT/ APPELLANT
Land Law - Compulsory Acquisition - Whether government commitment to release land to Weija Stool gives capacity to alienate lands - No revocation instrument - Whether court is entitled tofindfraud even if not pleaded - Whether defendant can challenge ownership to land belonging to someone else.
JUDGMENT
ABBAN (MRS), l.A.: This appeal emanates from a judgment of the Land Division of the High Court, Accra, dated the 2911, October, 2009. The judgment went against the defendant (herein referred to as the Appellant) and being aggrieved, he has appealed to this court.
This case has no complexity as to the facts put before the trial High Court Judge. It is a case of two entities - one an individual and the other a company purchasing land from the same stool under different circumstances. The plaintiff's Managing Director claims he acquired the land from the Weija Stool. He got the
 
land by way of customary grant in year 1980. Subsequently, he
requested that all documentation in respect of the lands he
purchased should be prepared in the name of the plaintiff
company, PICA Ltd. This was done in May 1998 and the
company was given an indenture which it claims it got registered. Because of defendant's trespass on the land, it sued him claiming -
a	Declaration of title to all that piece or parcel of land situate lying and being at New Weija, Accra containing an
approximatd area of 95.104 acres more orilcss bounded on the North-West by proposed road measuring 28991.7ft more or less on the North-East by a proposed road measuring 2656.39ft. more or le on the South-East by the source land measuring 1889.3911. more or less On the South-West by thc source land .measuring 2068.55ft. more or less.
Cieneral damages for trespass
Special damages of (1:300,000.00
Perpetual Injunction restraining the defendant, Ids agents, assigns and workman froin further dealing with pltintiff's land.
l'he defendant on the °tiler liand (2hums that mitt illy In bought the land frorn the stool of Amnnfrom in 1999. Aftel- purchase and planting corner pillars, 11c travelled out of tile counti-y only to come back to realize on his /-eturn that the land did not 1)clong
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to the Amanfrom stool but to the Weija Stool. lie was advised by tlic Amanfroin Stool to see the Weija Stool since their ownership of the land had been confirmed. After consulting the Weija Stool, they agreed and made a grant to him of the kind, lie claims to have partly developed the land given him by building thereon. Whilst accusing the plaintiff of forgery for causing to be prepared a site plan which wrongly covers his land, he also now believes that the land, iftei ill, did not and does not belong to the Weija 'tool but to the Government of Ghana. He got this information when he subsequently made a search at the Lands Commission With this seat eh result he has a eotmteielairn asking for the court to declare the 16th May Indenture plaintiff got Li orn the Weij m Stool null and void and order the cancellation of this indentui e I must mention that at the trial court, the defendant queslioned the capacity  of the plaintiff to issue the writ on the grounds that the land, by the plaintiff's own pleadings shows that the plaintiff does not own the land. Capacity to sue should rather be in the plaintiff's managing
director personally and not time plaintiff company The trial judge upheld the capacity of the plaintiff company to sue and granted it ill its reliefs except that for the special damages. It granted the p1 tintiff Ght 5000 general damages
The defendant questions this judgment of the trial judge and has inounled appeal against the judgment on six (6) grounds which I
quote hereunder:
"U		The learned ti tat judge erred in law in holding that tn
spite of the (onLpulsonJ acquisition of the disputed
 
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land by the government of Ghana and (sic) Weija Stool
made a valid grant to the plaintiff
The learned trial judge erred in holding that the
government of Ghana had given the disputed land
back to the Weija Stool.
The learned trial judge erred in failing to hold that  the plaintiffs acquisition of the disputed land is fraught with fraud.
rl'he learned trial judge erred in holding that thc plaintiff has capacity to maintain its action. 
The learned judge erred in 	dismissing the cow derel ail n.
The judgment is against the weight of the evidence."
On the first ground of appeal which relates to the government acquisition and ownership of the land in dispute, the evidence cannot be doubted that the land is government kind acquired under E.I.60 but then government had taken a firm decision to return some of these compulsorily acquired lands to the original owners. Several administrative meetings have been held at high government levels which resulted in a press release by the then Minister for Lands on the 811) of October 2008. As a follow up, the Survey Department has been directed to conduct a c.idastral survey, the cost to be borne by the affected traditional owners, including the grantor of the pLirties i.e. the Weija Stool. Indeed
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the evidence is that they have paid for the preparation of the cadastral survey. On the basis of this evidence, the trial judge concluded that even though technically the executive instrument covering the compulsorily acquired lands had not been revoked iii reality, the government had released the land to the original owners and therefore the Weija Stool had the competence to grant the lands to the parties and that sine the disputed land had been granted earlier by the Stool to the plaintiff, on the principle of neino dot good non Iwbet, the Stool was completely divested of this disputed land and it had no capacity to grant the saint land to the defendant Counsel for the appellant dis igi ees with this reasoning He submits forcefully th it in so ftir as the executive instrument has not been revoked, the WcJja Stool can have 110 title to pass to anybody, not even his own client, the defend mt From the reasoning of counsel it appears cli it to mu that lit is not enthused with thedistinction the Urn] judge sought to draw between the land i dc iseci "in reality" to the original owners and "teetirucal" non revocation of the executive instrument. To him the hinds are still government lands and nobody c in give valid title than the govei nmcnt lie relics on the cast oh Memuna Moudy vrs Antwi (2003-2004) S C G L R
967
Counsel for the respondent contends otherwise. lit is strongly of the view that the corresponcicnce. correspondence. by the govul nnient, including the press release, clearly indicating the coinmitmunt of government to release the lands is suffh tent giouncls to support any sales made of these lands by the traditional owners, in this case the Weija Stool I have i e id Exhibits E, 1, G and there is a reason son disagi ceing with i the plaintiff's position that there is the
	
 
commitment to release some of these compulsorily acquired
lands to the traditional owners. These exhibits are deliberations, a report and the press release. But the important question is
whether such commitment should he sufficient to vest the title of
these lands in the Wcija Stool to give it capacity to alienate these lands? In other words is an administrative decision suffiCient to re-vest these government lands to the original owners?. Mernuna Moudy vrs. Antwi (supra) does not appear to support an affirmative tinswer to this question. The underlying reasoning in that case that it relates to government acquired lands is that it is
only the government who has the capacity to -deal with such compulsorily acquired lands.	The press :reletise Exhibit
provides at its first page, last paragraph that:	.	.
'1 he ministry met with the chiefs and. elders of La, Ac/cola,
Ogbojo Mpelmasem, NUUTILO Nirl.Ultic- family. Government
has agreed with the land owners thatthe portions to be released would be in lieu of compensation for the pot lion be retained by government.J (empfrasis mine).
From this ptirag,raph it is clear that the portions to be released to the traditiontil owners had not yet been finalized for the stools to know what it -ea of land has been released to them. And this is where the importanee of the revocation instrument becomes important. For it is in such instrument that the lands ICICLISCC1 will be explicitly stated. It may be difficult for the government to resile from this position it had taken to release some of these kinds to its original owners, especially when it had got the respective Stools to -pay for cadtish-al survey as earlier indictited. The respective stools may have strong legal right to inhibit tiny
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back-tracking by the government. But such right not firmly established yet, it is my view that government commitment we have here in this case should not be sufficient title on which to base any grants yet. It is true that equily considers as done what ought to he done and that there is some sense in concluding that the Wcija Stool by the decision of the government should he highly expectant having sonic of their lands back, but ill circumstances of this case what lands exactly would be returned to them is yet to be known It would be rushing equity too early to the rescue when the circumstances ard not ripe for it. Any purchaser of any of these lands which recordings are in the name of the government does so knowing what risk he is unch i Viking Where the govenunent's intention to rcicasc these lands come to fruition and there had been purchasers like the parties hclorc this court the stool could he compelled by the principle of feeding the estoppel to perfect he title of tli sc grantees. Until then, the stool has no capacity to grant the disputed lands to any of the parties.
For the above icasons grounds (a) and (b) of the grounds of appeal would he upheld
The defend mt's next complaint Is in respect of the trial judge's failure to find that the plaintiff w is Ii muduk nt in its cicqUiSiti011 of the land Defendant admits that they did not plead fraud as demanded d by the rules, neither did they give any particulars of the fraud to enable the ipp I lant respond properly during the
trial He would want to rely oil	case of Aniuzu vrs Oklika
(1998-99) S C G L R 141	Counsel submits that on the
authot ity of this case whei e the ft aud is clear on the record, the
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court is entitled to find fraud even if not pleaded. There is no quarrel about the existence of this principle but when should this principle be invoiced should depend upon the circumstances. In the Oklika case the circumstances were such
that even the devil would cry the loudest fraud, insincerity, unconscionability and in fact thievery. I do not think the same can be said of this ease before us. Let us even look at the fraud the defendant is complaining about. What is the nature of the fraud the defendant is alleging? He is	.

That the land was bought in the name of a company that did not exist at the time of purchase. What is fraudulent itbout this? Who was defrauded? Was it the stool that was defrauded or the defendant? Answers to these questions clearly show the weakness in this allegation of fraud.
2		That the respondent changed the site plain in the
indenture executed for ibby the Weija Stool. I will ask the
same questions again. What is  :Ole fraud find who was
.	.
defrauded? The evidence on record is that there was indeed a new site plan in the indenture.
		--.	-
As a consequence, the date of .execution of the indenture and that on the site plans±confliet. But the explanation the respondent gave was that the site plan Ofigimdly in the indenture got tornThecause he had to use this site ph in at the several court attendances that had been his lot sMee purchtttsing
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lands from the	owners. He therefore had to cause a
.	.
surveyor to prcpait him another site plan. And that is how come he.: canie.by the new site plan with a new date. With this
 
explanation, I do not think we can talk of palpable fraud on the face of the record to invoke the Olclika principle on finding fraud siio itiotu even if not pleaded. More importantly, there is unchallenged evidence that the new site plan in the indenture is not different in content froiii the earlier one. It is the same in every material particular. I must confess I do not find the fraud like cancer that the appellant is alleging for me to act swiftly as advocated in the ease of West African Dyeing Industry Ltd. vrs. Tanoh (1984-86) 2 G.L.R. 561 at 605 relied oil counsel. We will dismiss this ground of 'appeal Counsel in his written submission ili -indoned his next ground of appeal which qii stioneci tin c II) i( ity of the plaintiff to sue We tiierefon lay tli a ground of appe il to rest.
Examination of the oniniln is ground of appeal, the judgment is against the weight of evidence should dispose of the other last ground of appeal also i.e. the trial judge erred in dismissing their counterclaim.
Plaintiff's claim is for declaration of title B J da Rocha and Christian Lodoh ill hook, "Ghana Land Law and Conveyancing" have this to 'ay in respect of title
"Title to land is the means by which a person establishes his right to land A person's title indicates by what means TIE claims to be the owner of land. Title may take the form of possession or it may take the form of document or series of docuiiients..."
 
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From the pleadings of the parties and the evidence led in court each party believes he is in possession and that should protect him against the other. It is each party's case that he is in possession before the other trespassed on the disputed land. By
the plaintiff's pleadings and evidence he is in possession and had made roads and erected electric poles and transformer on the land. It is part of this land the defendant has trespassed on Defendant on the other hand claims that after buying from the Amanfrom Stool he erected corner pillars but subsequently he has put up a building on part of his land. From  the court -atipoitited surVeyör's repor-ind evidence bcfoitc time c011/ t the conclusion cannot be avoided that the defendant is churning land not captured by his site plan. While the plitintiff's site ph in agreed with the land on the ground, the defenthint's site plan puts his land at a place which is different from where he is disputing with the plaintiff. Part of defendant's cross examination was as follows:
"Q. 'lime two parcels of land are located far apart from each other.
A.	Yes.
Q.	So you will agt-ee	inc that your land does not fall within plaintiff's land C1CCO7Wing to the exhibit.
A.	Yes."
So where the defendant is contesting with the i)Itiintiff cannot be what was granted him going by his site plan. But more
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importantly who is and was in possession of this disputed land? Plaintiff's evidence is that when the defendant trespassed on the land he warned him, but he refused to heed (he warning. He continued to build. The defendant himself said in answer to his cross examination that he came back from abroad and noticed that the plaintiff had walled part of the land. He went to the land but was arrested together with his workers anridst warning shots by aimed policemen to Odorkor Police Station, If he came back front abroad and noticed the plaintiff had w illed part of tlu land, then at what Period did he start putting up his building? This floffFUibè.ddëhbe, shouldH5d il1tdf -1 -1 taken possession of the land. And it is more likely than not that it was because he ignored the plaintiff's w'-n ning to vat ate the land that the police came to effect his arrust together with his workers. Ihcic is sufficient evidence that it was th plaintiff who was and is still in possession of the disputed land The hackneyed legal principle is that possession by itself gives good title against the whole world except someone having better legal right. Where as
in this case both parties bought front Weija Stool, who T have found has no title to make a grant to any of ftem, the one in possession i.e.  the plaintiff has bc ttei title to the land awaiting anybody who claims to have better title to dislodge him Tile defendant cannot rely on his own strength in the circumstances of this case to challenge thu plaintiff's possession over the land iii dispute. There is no Principle that will support the defendant, also a squatter, challenging the claim to ownership of the land by the plaintiff on the ground that the land does not belong to the p1 nntiff but to somebody else, in this case the government,
since hc is not claiming to derive title front	government. Ile
H	I!
 
has no business therefore questioning the documentation of the
plaintiff no matter how erroneous.
From the foregoing, we will dismiss this ground of appeal, i.e.
that the judgment is against the weight of evidence and the cornplaint I ht--tt the trial judge erred in dismissing the defendant's counterclaim.
'Hie appeal succeeds in part only The reliefs the defendtmt is seeking in this court cannot be granted. The judgment of the trial court cannot be set aside neither can judgment be granted on his counterclaim as he prays from this court.-

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COUNSEL
•	MR YAW AWE! AF'fi'RAM FOR DEFENI)ANT/APPEIAANT
•	MR HENRY omccA-TErrEH FO1: PLAINTIFF/RESPONDI NT
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