IN THE SUPERIOR COURT OF jUDICATURE
IN THE COURT OF APPEAL

CORAM: APALOO JA (PRESIDING)
ACQUAYE JA
DZAMEFE JA
CIVIL APPEAL
SUIT NO. 1-111209/2010
DATE: 22/1212011

	

Land Law— Ownership of land— Whether the defendants perpetuated fraud on the allodial owners— Indenture thumb printed by allodial owners produced by defendant as evidence - Absence ofjurat clause as required by law— Whether absence ofjurat clause renders the instrument invalid— Onus on both parties to adduce sufficient evidence to prove the validity or otherwise of the instrument.
JUDGMENT
APALOO,JA: On 611 September 2002 the Plaintiff/Appellant (to be referred to as Plaintiff) took out a writ of summons at the Circuit Court Agona Swedru against the Defendant/Respondent (also to be referred to as Defendant) claiming inter alia the following reliefs;
"1. An order directed against the Defendant for refund of an amount of
 
•	$4,773,000 new C11$477.30 being the value of &linage caused to his property plus interest at the prevailing bank rate.
2.	General damages for trespass.
3.	Perpetual injunction restraining the Defendant, his agents, servant etc
to desist from directly or indirectly interfering with Plaintiffs
development, possession (117(1 occupation of the land, and not to enter
the land for any reason whatsoever and further not to threaten Plaintiff
until final determination of the suit."
After a kill trial, judgment was entered against the Plaintiff and being dissatisfied a notice of appeal was filed with 9 grounds of appeal and 4 additional grounds by leave of Court. The following are the grounds of appeal;
"1. The Honourable Court erred in law when it held that Nai Awitshie
Tetteh and his Stool Elders are bound by the document (Exhibit 2) they themselves executed even though no jurat was entered despite the fact that all the Elders (witnesses) are illiterates.
2.	The Honourable Court erred in law by substituting its finding that the .Defendants grant by the 3rd Co-defendant Alhassan in the circumstance cannot be revoked whereas Defendant himself led evidence (20170-cry to
the Court's holding.
3.	The Learned Judge erred in law by not re-examine (sic) on the evidence
gathered to resolve or "arriving at the truth in face of conflicting
allegation" but incorporated its finding in the judgment.
4.	The Learned Judge erred in law for concluding from the observations at
the locus that it was 1st Co-Defendant who gave out lands to residents
without any documentary evidence as required to establish proof in law.


 
regularly obtained ((11(1 not dejective in anyway. Whereas the 1(111(1 involved is a Stool /and.
6.	The learned Judge concluded that "the exhibit 'A' executed by the
Plaintiff and Na! Awushie Tetteh cannot take away the eJjLct of the
grant and if indeed there was a mistake and in the instant case ifind
none, that mistake cannot affect the grantees registered title."
7.	The learned Judge misapplied or gave erroneous interpretation to Section 11(4) and 12 oft/ic Evidence Decree in determining this case, thus resulting in a miscarriage of justice suffered by the
Plaintiff/Appellant.
8.	The costs awarded against the Plaintiff is uncalled fbr and some should he set aside.
As additional grounds of appeal the plaintiff filed the following:
1.	"'/1w Learned Judge erred in law by entering judgment in favour of the Deft'ndan t and to further declare lie (Defendant) is the IM( al owner of the plots in dispute even though no counterclaim was filed by the Defendant.
2.	The Learned Judy  erred in law by holding that" if indeed there was a mistake .......that mistake cannot afflict the grantees registered title."
3.	11 e Defendant having acquired a purported and defective power of Attorney after committing the act of trespass complained about which in part formed the grounds for the present action lacked capacity to defend the action for his principal.
4.	Having made a finding that "In the opinion of the Court the events leading to the execution of the conveyance Exhibits 2 and ? in favour of the Defrndant's principal amounts to nothing short of Jaiid on the part of the defendants, the Honourable Court erred in law (111(1

 
•	misdirected itself by not entering judgment in favour of the plaintiff which said misdirection has resulted in a grievous miscarriage of
justice against the appellant."
13riefly, the land in dispute are two plots of land which formed part of a large tract of land which was surveyed and demarcated by theist Co-defendant (Mr. Ankrah). The 1st Co-Defendant, did the work together with other persons including the 21d and 3rd Co-defendants. The stool gave them portions of land they demarcated as payment for the work. From the record the 3' Co-defendant Mr. Alhassan was given two plots of land also as payment for work done in the demarcation. 3rd Co-defendant in turn sold the MO plots to the uncle of the Defendant by name Emmanuel Osel-Akoto. Mr. Emmanuel Osei Akoto acquired the two plots in 1994 and the Ofankor Stool as allodial owners gave an indenture Exhibit 2, to him since the land was not conveyed to the 3rd Co-defendant by the Stool after the grant was made.
The plaintiff had the following narration in his statement of claim.
"(3) The plaintiff says on 9/6/97 he took lease of two plots of land described in the schedule hereunder from Nil Odupong Awushie Tetteh Head of family and Chief of Odupon Ofonkor in the Central Region for 99 years with the option of renewing same for the further term of 45 years."
According to the Plaintiff he paid an amount of (1.6 million (now G11(160.00) to the family which acknowledged receipt on 10/9/ 96. Plaintiff stated that Defendant was a trespasser, he went on to the land and destroyed the concrete foundation. Upon valuing the extent of damage on the land, the surveyor assessed the totality of the damage to be (4,773,000.00 (now G11(477.00). The Plaintiff later applied and joined lst, 2" and 3"d Co-defendants. The Plaintiff pleaded fraud on the part of 15t, 2111 and 3N' Co-defendants and per paragraphs 5, 6, 7 and 8 of his amended reply he narrated that;
"(5) Plaintiff further denies Defendant's false claim to the lands and says that the said Emmanuel Osei-Akoto dealt with one Charles Banafo, Alhassan and with the connivance of the Surveyor (Mr. Ankrah) who was
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engaged by the Stool and having been paid for his service by the stool secretly carved out plaintiff's plots of land and purported to have oJJered same to Charles l?anafo and Alhassaii for "sale" to the said l:'niriianuel Osei-Akoto.
(6) Plaintiff Jurther reply says that the persons named in paragraph 5 above prepared and mixed it together with other documents placed same before Nai Odupong Awash/c who signed the same by in/slake.
(7)	Plaintiff says it was the same surveyor who demarcated Plaintiff's plots for him (111(1 he turned round later to have offered same for "sale" to Eininan ad Osei-A Ico to.
(8)	Plaintiff says the Chief of OJànkor later realized the Mistake (117(1 the fraudulent conduct of the persons named in paragraph 5 above mud instructed his secretaty who wrote to the Lands Commission .............
PARTICULARS OF FRAUD
1.	"11w surveyor Mr. Ankrah could not give out the plot of land which Plaintiff had already purchased and which he the surveyor had no title, for sale.
2.	Messrs Charles lianafO and /llhassan equally had no claim or title to the Plots and knew that they could not effect or promote a valid sale of the plots to Emmanuel Osei-Akoto.
3.	Messrs Ankrah, Charles llanafo and Al/nissan Presented Mr. Osei-/lkoto's indenture as ci genuine document which they knew was not, to the Chief fOr sqning and as a result succeeded in misleading the Chief
4.	The Chief was misled in signing the in den (tire for the DefOndant.
During the trial the Plaintiff tendered his receipt for the purchase of the 2 plots Exhibit. 'A'. Exhibit 13 was his indenture. Nxhibit C was a search at the Lands Commission and Exhibit 1) was the Registration of the land's document.
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i..	•
 
• The Defendant on the other hand tendered the power of Attorney of Emmanuel Osei-Akoto as Exhibit 1. The indenture as Exhibit 2 and the Registration of the land's document as Exhibit 3.
SUMMONS FOR DIRECTIONS 
1, "Whether or not given the circumstances of this suit the alleged registration of Defendant's Principal Indenture hearing land Registry No. 1587/2002 confer title on him (Defendant Principal).
2.	Whether or not the purported acquisition and registration of the Defendant's Principal's Indenture is fraught with fraud and should be nullified and set aside.
3.	Whether or not the Chief of Ofankor Nai Odupong Awushie fetich II was tricked into signing or lie signed by mistake the Indenture bearing lands Registry No. 1587/2002.
4.	Whether or not Defendant's Pricipal Emmanuel Osei-Akoto purchased the land from the Modica Title holders of the land in dispute i.e. the head of family and Chief of Odupon Ofanlmr.
5.	Whether or not Plaintiff purchased the land in dispute from the Chief of Ofankor.
6.	Whether or not the Plaintiff's Indenture executed on 9/6/97 was regularly obtained from the Allodial Title Holders of the land in dispute.
7.	Whether or not Plaintiffs possession and development of the land which Defendant demolished or damaged constituted actual notice to Defendant and/or his Principal before attempting to register the indenture bearing Land Registry No.. 1587/2002.
8.	Whether or not Plaintiff is entitled to recovety of ¢4,773.00 licitly the assessed value of damage caused by Defendant
9.	Whether or not Defendant trespassed onto Plaintiffs land.
 
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10.	Whether or not Defendant should he per/Jet tinily !i'Strail7ed
11.	Whether or not co-defendants were given plots 011011(1 by the Al/odinl Title holders for (heir services.
12.	Whether or not 2'' and 3I Co-defendants sold itiy plots of /011(1 to Defendant's principal.
13.	Whether or not 1• Co-defendant acting Jor the Al/ad/al Title holders is
the some person who carved out Plaintiff's plot of land, prepared his
site plan, Indenture etc fi)r which Plaintiff paid and receipt issued to
him."
After critically examining the 13 issues set (town for determination, I am left in no doubt that most of the issues are repetitive and unnecessarily prolix in form and content. In my view the following 4 important issues should he the ones for determination.
;i) Whether or not Plaintiff validly acquired the land in dispute Irc)ln the al lodial owners.
hJ Whether or not the Co-defendants were given land by the ahlodial owners.
c] Whether or not Defendant's principal and Co-defendants perpetrated any fraud on the allodial title holders.
dJ Whether or not defendant principal's Emmanuel ()sei-Akoto validly
acquired the land in dispute.	.1
At the close of the trial, the trial judge found in favour of the Defendant and Co-defendants. The decision of the trial Judge led to the attack on the judgment by the 12 grounds of appeal already numerated.
CAPACITY
Counsel for the Plaintiff in his statement of case preferred to attack the capacity of the Defendant first in his submissions to this Court. fie referred to the evidence of the Defendant which disclosed that he held a Power of
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Attorney in respect of the two plots of land belonging to Emmanuel Osei¬Akoto who was resident in Germany. The land was situate at Ofankor. The Power of Attorney was received in evidence without objection and marked as Exhibit 1. A certified translation from German into English of Exhibit 1 is on page 189 of the record. Counsel submitted that the Power of Attorney is defective, in that, contrary to section 1(2) of the Power of Attorney Act, 1998 the instrument was not witnessed, to attest to the execution of the power. Counsel referred to section 1 (2) of the Power of Attorney Act 1998, Act 549 which states as follows;
"Where the instrument is signed by the donor of the power one witness shall be present and attest the instrument."
Counsel referred us to Asante-Appiah vrs Amponsah [2009j SCGLR 90 where the Supreme Court explained that
"(1) The parties were agreed that the Plaintiff was at all material times during the litigation, resident in England but sued through another person using a power of attorney which was tendered in evidence. That power of Attorney was fatally flawed because of non compliance with the mandatory provision in section 1 (2) of the Power of Attorney Act 1998 (Act 459j"
Again in Juxon-Smith vrs KLM Dutch Airlines (2005-2006) SCGI,R 438 at 440 the Supreme Court was of the view that
"a party who had at the trial allowed a document to be admitted into evidence without objection would not be estopped "on appeal" front raising for the first time legal objection to its admissibility. The well known exception to those general rules was that, where the point being urged for the first time was of substantial importance and could be conveniently argued without further evidence being taken by the appellate court; the party would not be barred from raising these legal points."
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To further buttress the point to dismiss Defendant's evidence from consideration by the Court of Appeal, the Plaintiff cited this Court's decision in Yokwaa vrs I)uah (1992-73) GBR 278 at 279 to the effect that:
"Where a person's capacity to initiate proceedings was in issue, it was no answer to give that person a hearing on its merits even if he had a cast- iron case. Even though the paint of respondents' capacity was not raised at the trial, it involved a serious point of law that the trial judge ought to have considered."
Counsel br the Plaintiff having relied on the above authorities which are binding oil Court, urged us to reverse the decision and make the Defendant liable for the reliefs endorsed in the writ of summons or in the alternative the Plaintiff should succeed and judgment entered in his favour.
I:rorn the record the Plaintiff instituted his action against the Defendant on 6/9/2002. Later the same year on 15/10/02 the power of Attorney was created. In other words the Defendant was brought to Court before the creation of the power. The Defendant did not come to Court because he had been given the Power of Attorney. He was dragged to Court by the force of the writ of summons. The Defendant was sued in person and by his personal name. Indeed being the Defendant, it was the Plaintiff who clothed him with capacity to defend the action. The Defendant at the onset of the litigation did not need a power of attorney to defend the action which was brought against him personally. By Order 9 rl(1) of the High Court Civil Procedure Rules, Cl
47
"a Defendant to an action may whether or not the De/éndant is sued in a personal capacity or as a trustee or as a personal representative or in any other representative capacity file an appearance in the action and defend it in person or by a lawyer."
In his defence to the Plaintiff's claim the Defendant stated that he was caretaker of the land in dispute and that his uncle, Emmanuel Osei-Akoto was the actual owner of the land in dispute. As a defendant therefore, sued in his personal capacity, there was no requirement for a power of attorney to defend
 
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such action. It appears however that in all the cases cited by Plaintiff's
• Counsel to support the consequences of the defective power of attorney, the
party in possession of the defective power was the Plaintiff and not Defendant
and this point is of primary importance. It appears ridiculous however that
after commencing an action against a person personally, who proceeded to
defend the action albeit with a defective power of attorney, the Plaintiff turns
round to prevent the Defendant from defending the action. The case of Asante-Appiah vrs Amponsah (supra) makes it clear that;
"where the capacity of a person to sue is challenged, he has to establish it before his case can be considered on its merits. In the instant case, the defendant challenged the capacity of the Plaintiff right from the inception of the trial. The challenge was explicit in the first paragraph of the statement of defence and in cross-examination of person who gave evidence on his behalf as a holder of a power of attorney which had been declared invalid and inadmissible.
We find the ground of appeal challenging the capacity of the Defendant to be a misconception of the law and it is wholly dismissed as without merit.
In the Plaintiff's additional ground 1, Plaintiff made reference to the amended statement of defence filed by the Defendant and the Co-defendant. Counsel stressed that the statement did not contain any counterclaim or a claim for declaration of title, nevertheless the trial judge concluded as follows;
"Accordingly, the Plaintiff's claim is dismissed and I enter judgment in favour of the defendant and declare that he is the legal owner of the plots in dispute."
Plaintiff's Counsel was of the view that the conclusion reached by the trial Judge sins against the principles of law contained in the Supreme Court's decision in Nyamaah vrs Amponsah [2009] SCGLR 361	362 where the
Court held;
"It is the duty of a trial Court to make pronouncement on the reliefs that a party seeks.... Thus a Judge who makes an order for a relief that was not
 
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1p	sought by a party to the action can he held to have exercised a jurisdictional irregularity."
Again in Gihoc Refrigeration & household Products Ltd vrs Manna Assi 12005-20061 SCGLR 458 @479 Dr. Date-Bah JSC emphasized that;
"The Courts are not in the business of conferring unsolicited remedies on those who have not in yoked the court's jurisdiction."
Counsel prays that the declaration of the defendant as legal owner by the trial Court should be set aside.
Upon reading the record fully and applying the law on pleadings we are satisfied that the trial judge fell in an error when he declared the defendant to he legal owner of the land in dispute, especially in consideration of the fact that the Defendant never counterclaimed or made a claim for declaration of title. The Plaintiff having come to Court but unable by evidence to prove his claim, in the view of the trial judge, the trial judge had no alternative other than dismissing Plaintiff's action simpliciter.
The position of the law has been amply explained in Jass Co Ltd vrs Appan 120091 SCGLR 265, the Supreme Court held inter alia that;
"The burden of proof is always put on the Plaintiff to satisfy the Court on a balance of probabilities in an action far a declaration of title to land. Where the defendant has not counterclaimed, and the Plaintiff has not been able to make out a sufficient case against the defendant; then the Plain tiff's claims would be dismissed. Whenever a defendant also files a counterclaim, then the same standard or burden of proof would be used in evaluating and assessing the case of the defendant, just as it was used to evaluate and assess the case of the Plaintiff against the defendant."
In the Plaintiff's grounds 1, 5, 6 and additional ground 2 which were argued together, Counsel referred to Exhibit 2 the indenture between Nai Odupong Awushie Tetteh II and Emmanuel Osei-Akoto. The document was executed on
2611 August, 2000 and registered as 1587/2002 at the Regional Lands Commission Cape Coast. According to Counsel the entire 4 witnesses thumb
 
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• printed, an indication that they were illiterates. These were the Principal members of the Stool whose concurrence and authority are required to
validate any alienation of Stool land. Counsel referred to Waya yrs Byrouthy (1958) 1 WALR 413 which held that
"if an illiterate execute a document, any other party on it must prove that in it was read over and if necessary interpreted to the illiterate. In this case the illiterate was held not hound by a high purchase agreement"
Again in Dadzie Boateng vrs Kokofil 119611 GLR 90 SC it was held. that in the absence of evidence that a document of sale which was executed by an illiterate person had been interpreted to him, no claim based on it could be S ustained.
What is the effect then of the absence of the jurat in a document executed by an illiterate. For an answer we shall refer to Boakyem vrs Ansah [1963]2 GLR 223 where Althfo-Addo JSC (as he then was) explained the position. Ile
said on page 225 that;
"It would be observed that in Kwatnin vrs Kuffour and in the more recent case of Waya vrs Byrouthy in which the principle in Kwamin vrs Kuffour was applied, the illiterate person affected actually a party to the contract written in English.
illiterate persons concerned .... were not parties to the deed; they were attesting witnesses only. The evidential requirements necessary therefore to affect them with an intelligent knowledge of the precise and relevant contents of the deed are far greater than those enunciated in Kwamin vrs Kulfour."
The Learned justice continued
"As I have already indicated the illiterate persons concerned in this appeal were attesting witnesses only and there is no presumption that an attesting witness has any knowledge of the contents of a document the execution of which he attests; indeed the presumption is the other way round, and a much heavier onus therefore rests upon the Plaintiff in this appeal to prove that the first defendant and his head ()gamily attested the
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• document by appending their marks thereto wit/i an intelligent knowledge of the fact that the land granted thereby was their stool land and that wit/i that know/edge they consented to its execution in the manner alleged."
From the above pronouncement the following ingredients were to be considered where a jurat was lacking in a document attested to by an illiterate person. They are;
"a) The illiterate persons concerned were attesting witnesses only.
h) That the attesting witnesses attested the document by appending their marks thereto.
c) That in doing so they had intelligent knowledge of the fact that the land granted thereby was their stool land
(1) That with that knowledge they consented to its execution in the manner alleçjecL"
Obviously from the dictum of AkufoAddo JSC [as lie then was] the absence of a jurat in an indenture conveying land and attested to by illiterates does not render the conveyance invalid. There is a duty on the beneficiary to prove the validity of the document in line with the ingredients spelt out above. From the record PW2 Nai Supi Kwao Ashong, a caretaker of the stool land gave evidence on behalf of the Plaintiff. Ile did not say he was illiterate. He did not say he executed Exhibit 2 under any mistake. PW2 confirmed tinder cross- examination that lie is a signatory to all documents emanating from the stool. This is what his cross-examination disclosed.
	Q.	For how long have you been the caretaker of Ofankor Stool kinds?
	A.	About 42 years
	Q.	Between you and Ofankor Chiefwhio has control over the land?
	A.	The two of us are signatories to all documents.
 
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• It is noted also that PW3 the Stool Secretary testified for the Plaintiff. Ile stated that he became stool secretary in 1993 and that before the year 2003 he only signed on documents to identify the thumb prints of the elders. In 2003 he was advised by the Lands Commission to also sign the documents. Exhibit 2 was in fact signed by PW3 to identify the signatures of the elders according to PW3 himself in his testimony.
(2.	When did you become the alleged secretary of the stool?
A.	1993
Q.	What are your duties?
A.	I am responsible for all correspondence and to oversee the preparation of all land documents.
Again from the record there is no doubt that Exhibit 2 was properly identified by PW2 and PW3 both associated with the Ofankor. Stool. There is no doubt too that in preparing the documents for execution the witnesses who had thumb printed knew what they were doing i.e. the alienation of stool land. Having satisfied what the law laid down in the absence of a jurat for attesting
witnesses, we shall proceed to dismiss this ground of appeal a Well.
Additional Ground 2 
Appellant submitted that the "Hon judge at some point in the judgment referred to 2"a Co-defendant as (Mr. Ankrah) and determined the case on that premise or belief but the irony is that Mr. Ankrah is the first Co-defendant whereas Mr 13anafb the 2nd Co-defendant and in the midst of this uncertainty and inconsistency the Hon. Judge failed to appreciate the evidence led by the
parties and gave wrong assessment and judgment of the case."
Counsel was of the view that the judge therefore came to a conclusion not borne out by the record so he misdirected himself which has resulted in a miscarriage of justice. Indeed where a trial has been lengthy with so many witnesses in attendance, not to mention the number of persons as parties there is the tendency for some confusion to arise in identifying the parties properly. The argument that the trial Judge misdescribed the parties in his
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• judgment and this led to wrong assessment of the evidence (toes not appear to be tenable. The trial Judge was of the view that
"If indeed there Was a mistake and in the instant case I find none, mistake cannot affect the yran tees registered title."
It appears the trial Judge's conclusion that no mistake or fraud has been proved against the defendants has support in the record. PW2 a signatory to Exhibit 2 in his testimony did not say lie thumb printed the Exhihit under a mistake or fraud. PW 3 the Stool Secretary signed Exhibit 2 as he said to identify the signatures of the elders. He did not say Exhibit 2 was executed under a mistake or fraud. The Plaintiff pleaded and relied heavily on the allegation that the chief Nai Odupong Awushie Tetteh II signed Exhibit 2 under mistake or fraud, but strangely plaintiff failed to call Nai Odupong Awushie Tetteh II to confirm that assertion though this allegation was denied by the Defendants.
In assessing the evidence on record I do not think the trial Judge allowed his misdescription of the parties to cloud his mind. The error lie committed if any, was to misdescnhe the parties. I find this ground of appeal to be unworthy of a serious appeal. Dotse JSC in )ass Co Lid vrs Appau [2009] SCGLR 265 at 276 condemned this type of ground in appeal in these words
"We there] öre find the observations made by LampteyJ/l (as he then was) about the reference to the appellants by the learned trial Judge as Plaintiff instead of referring to them as the Plaintiff and Co-Plain tiff as too petty and devoid of any merit deserving attention from this Court."
We accordingly find this ground of appeal as Petty and lacking in merit and dismiss it.
Ground 2
Counsel for the Plaintiff argued that the trial Judge substituted the case contrary to what the defendant himself pleaded. Counsel gave instances from the amended statement of defence and the evidence led in court by the defendant.
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It appears that at the end of it all, the trial judge believed the evidence of the
1111 Co-defendants, that the land in dispute was given to the 3nI Co-defendant for services Co-defendant rendered to the Ofankor Stool. This discretion of the trial court to weigh the several statements on each issue and to decide which to believe and which to reject has good basis in law. In Bisi vrs Tabiri [1984- 198612 BUZ 828 @ 287 Adade JA stated the position thus;
"As u Judge of fact, it is his peculiar province, listening to the evidence and having the witnesses before him, to weigh the several statements on each issue and to decide which to believe and which to reject. And so long as his conclusions can find support from statements on record it is not open to an appellate tribunal except .for just and compelling reasons to disturb them."
From the record it appears there were other persons who took part in the demarcation and were also given plots of land. The 2nd Co-defendant sold his to a person who had come from Italy. Ile built on the land and he is in occupation. DWI Emmanuel Mensah, confirmed he took part in the demarcation and was given two plots which he in turn sold to a Mr. Dan who has since built on it. This is what DWI said.
"We demarcated a parcel of land belonging to Nai Odupong of Ofankor. We were eight in number. Mr. Alhassan, Mr. Charles, Olu, and other persons whose names I cannot remember That is in the year 1994 or thereabout. We were authorized by Nana to do the work Ile was aware that we demarcated the land. We were not paid for the work but given 2 plots of land each. Alhassan was also given two plots next to my plots. 1 sold my land and used the proceeds to put up a building. I sold my land to one Mr. Dan who also built on the land."
This piece of evidence was not challenged, but Counsel suggested that the witness had stolen the land which he in turn denied.
The case of the Defendant was that he was a caretaker for Emmanuel Osei-Akoto who had a document duly executed in his favour by the Ofankor Stool.
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From the record it was not denied that the document Exhibit 2 originated from the stool.
There is however evidence that the 3 Co-defendant acknowledged that lie sold the plots in dispute to Mr. Emmanuel Osei-Alcoto for 1.2 million now GHO 20.00 and the stool found it necessary and prudent to convey the land to Emmanuel Osei-Akoto.
In lily view the only reason why the stool will give a conveyance to Emmanuel Osei-Akoto when the money iii respect of the land had been paid to the 3rd Co¬defendant is that the land had already been allocated to the 3rd Co-defendant by the stool. What the stool (lid was in accordance with the decision of the Court of Appeal in Bediako 'irs Arthur [1992-1993] GBR 1594 when in a similar situation, the second purchaser procured a conveyance direct from the Stool which made the original grant. It is my further view that based on the facts and evidence the grant to Emmanuel Osei-Akoto was legitimate and evidence on record supported the conclusions of the trial judge. This ground of appeal stands dismissed.
Grounds 3 and 4
Counsel was of the view that after the visit to the locus in quo the court did not resume for the evidence gathered at the locus to be tested under cross- examination. Ile submitted that there was no record on the visit. Counsel said the visit was unnecessary and that it is only when the identity of the land or any physical feature of it is in dispute that a decision by a Court to view the land can be a proper judicial exercise of its jurisdiction See Asare 'irs Donkor [1962] 2GLR 176 SC
I have no doubt that failure on part of the trial Judge to reconvene the Court to adduce evidence on the purpose of the visit to the locus in quo constituted a grave error of judgment on his part. The judicial reasons for a visit to the locus have been settled in the cases including Asare vrs Donkor (supra) Darfour 'irs Boateng [1976] 2 GLR 191, see also Kofi 'irs Kamansah [1984-86] 1 GLR 116 CA. Notwithstanding this error on the part of the trial judge, it will be reasonable in the circumstances to find out what the trial
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judge did with his observations and findings in order to assess the impact of 46 the visit on the judgment as a whole. On page 152 the trial judge stated as follows:
"A visit to the locus or an inspection of the land is the surest way of arriving at the truth in the face of conflicting allegations; the disputed land was therefore visited. When the Court moved to the locus, we saw, that quite a number of buildings have been put up on adjourning lands given out by the ist Co-defendant and his alleged Co-workers of the demarcation team."
From the foregoing, there is no doubt that the findings made by the judge in respect of his visit to the locus concerned the buildings the 2" Co-defendant and DWI have already testified to in their evidence. No new or fresh evidence was discovered at the locus which impacted on the evidence as a whole. On account of this procedural error on the part of the trial judge, a decision to expunge these findings of fact from the record will nevertheless leave sufficient evidence on the record to support the judge's conclusions. I hold therefore that the error on the part of the trial judge notwithstanding, no miscarriage of justice had occurred.
Ground 7
Under this ground it is the contention of Counsel that the Plaintiff adduced sufficient evidence to prove his claim and the onus therefore shifted to the Defendant who was unable to establish his vendors. According to Counsel the Defendant had a duty to satisfy the Court as to how he was able to get his document signed by the Chief of Ofankor.
The interpretation of sections 11(4) and 12 of the Evidence Act by the Supreme Court in Fosua, & Mu Poku vrs Adu Poku Mensah (2009) SCGLR 310 @ 326 leaves one in no doubt that in civil litigation the duty "on a party to produce sufficient evidence so that on all the evidence a reasonable mind could conclude that the existence of the fact was more probable than its non existence "works in both ways. The onus having shifted on the Defendant. 1 am of the firm view that the Defendant discharged that burden.
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There was evidence that Exhibit 2 was not objected to and the same was duly executed by the Olankor Stool, allodial owners of the land in dispute in favour of the Defendant's uncle, Emmanuel Osei-Akoto. The witnesses for the Plaintiff testified that the Stool executed Exhibit 2. The Stool did not deny that Exhibit 2 emanated from it. The allegation of fraud or mistake was not proved. Co-defendants and DWI confirmed that the land in dispute was given to 311 Co-defendant for services rendered to the Ofantcor Stool. The 3rd Go- defendant in turn sold the land to Emmanuel Osei-Akoto.
In my view the Defendant was able to establish his vendors satisfactorily in line with the Evidence Act.
Ground 8
Counsel for the Plaintiff, to use his words stated that the "costs awarded was uncalled for." This is a complete departure from dignified Court room language. To describe costs awarded as unnecessary is in my view undesirable. Costs no doubt follow the event. Having lost a battle in a long war, the victorious party deserves costs. From the record it appears the case travelled beyond 7 years. The Defendant and Co-defendants were put to great expense to defend the action. In my view no good reason has been advanced by counsel to set aside the costs awarded by the lower Court.
Additional Ground 4
In this ground of appeal Counsel quoted part of the judgment and submitted that arising from the quotation the Court erred in law and misdirected itself by not entering judgment for the Plaintiff. The quotation is oil 154 of the record. This is what the trial Judge said;
"The case of the Plaintiff was conducted placing much reliance on the al/eyed fraud by the defendants or ci mistake by the occupant of the Ofankor Stool; although the Plain tiff had pleaded fra uci, the Plaintiff and his witness Jailed to satisJàctorily explain to the Court how the defendant perpetrated the fraud. inspite of the alleged fraud all the parties including PW1 himself executed the document. Now it is difficult to understand how Nai Awushie Tetteh 1/ and all his Stool Elders; the Stool
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•	Secretary and witnesses to the transaction could approve the Defendant's grant without noticing the fraud or mistake."
Further down on Page 154 the trial judge continued that;
"There is no evidence that the parties particularly the elders of the Olankor Stool labored under any mistaken belief at the time of the execution of the conveyance."
Certainly in my view the above cannot be read to be a finding in respect of fraud. Counsel's point that although the judge found fraud he nevertheless failed to enter judgment for the plaintiff is by the record absolutely incorrect. This ground of appeal cannot also he sustained as well. In the event the whole appeal is dismissed and we confirm the decision of the lower Court.
(	4
(JUSTICE 0	i:AL)

 

 
S. IJAAMCIFE
(JUSTICE OF APPEAL)
COUNSEL: 
•	RAY APPIAHAMPONSAH ESQ FOR THE PLAINTIFF/APPELLANT
•	WILFRED BABA AVIO ESQ FOR THE DEFENDANT & CO-DEFENDANTS /RESPONDENTS
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