NII AFLAH II VRS BOATENG (H1/155/2021) [2021] GHACA 22 (16 December 2021)

IN THE SUPERIOR COURT OF JUDICATURE IN THE COURT OF APPEAL ACCRA AD. 2021 CORAM: JUSTICE SENYO DZAMEFE J. A. (PRESIDING) JUSTICE P. BRIGHT MENSAH J. A. JUSTICE JENNIFER A. DODOO (MRS) J. A. CIVIL APPEAL No: H1/155/2021 16TH December, 2021 NII AFLAH II VRS BENJAMIN KWAKU BOATENG DEFENDANT/APPELLANT PLAINTIFF/RESPONDENT JUDGMENT DODOO, JA (MRS) The reliefs endorsed on the writ issued on 12th July, 2013 (See p. 2 of the Record of Appeal {ROA}) were as follows: (a) Declaration of Title to land lying or being at Odorkor at Teiko Adam near Tsum, Odorkor with an approximate area of 0.29 acre with a house thereon and more particularly described on Plaintiff’s title documents. (b) Perpetual Injunction restraining the defendant herein, whether by himself, agents, assigns, representatives, hirelings or whosoever from entering into, trespassing or intermeddling with the said property. The parties would be referred to as the Plaintiff and Defendant respectively. The Plaintiff’s Claim The Plaintiff’s claim was to the effect that he had obtained a conveyance from his grantor, Stella Aso Siaw in 1989. He had since put up a structure on the land. His caretaker was evicted in 2013 by the Defendant who had obtained judgment at the Kaneshie District Court. According to him, his caretaker had travelled at the time suit was instituted and therefore could not defend the suit. It was Plaintiff’s case that the Defendant had leased the land to his vendor, Stella Aso Siaw in 1976 and based on this conveyance, the vendor leased same to him and his wife in June, 1989. He stated that the Defendant’s claim to his property are fraudulent and gave the following particulars of fraud: a. The Defendant or his family had leased the same land to Stella Aso Siaw in 1976. b. The said land had been conveyed to Plaintiff in 1989. c. A two bedroom with kitchen had been on the land for more than 20 years built by the Plaintiff and not the Defendant. He also pleaded limitation on the basis that he had been on the land without let or hindrance for a period of over 14 years. He gave the particulars of limitation as: a. The Plaintiff has been in control of the land in dispute since 1989. b. The Plaintiff has built a house on the land in dispute and has stayed in it with his tenant or caretaker for more than 14 years. The Defendant’s Defence In an amended statement of defence, found at p. 197-199 of the ROA, the defendant stated that the matter before the court was res judicata as judgment had been entered against the Plaintiff or his representative after they had failed to take part in the suit. Since he had either failed to set aside the judgment or to appeal against same, the matter had become res judicata. He denied knowing and having dealings with the Plaintiff’s vendor, Stella Aso Siaw who traced her root of title through the Teiko Adams family whereas the land belonged to the Chuim Tawiah family. The Plaintiff’s Reply The Plaintiff joined issues with the Defendant on his statement of Defence and denied that the matter was res judicata as he was not a party to the suit titled Nii Aflah v. Kwabena Boateng at the Kaneshie Court. The following issues were set down for trial: a. Whether or not the Plaintiff obtained a valid title to the land in dispute? b. Whether or not the Plaintiff or Defendant put up a house on the disputed land? c. Whether or not the Plaintiff has been in possession of the house in dispute for more than 20 years without any let or hindrance? d. Whether or not the Defendant’s claims to the house is fraudulent? e. Whether or not the Defendant’s claims to the house is statute-barred? f. Whether or not the Plaintiff is shielded by the Land Development (Protection of Purchaser’s Act), 1960, Act 2, if at all his vendor’s title to the land is defective? The trial judge traced the Plaintiff’s vendor’s root of title as commencing from Emmanuel Aflah Addo who in turn had purchased the land from one Awudu Razaku who in turn had acquired it from Sabah Mensah of Nii Aduoto Wolumo and Head of Teiko Adams Family. The Court found as a fact that the land was “situate, lying and being at TEIKO ADAM NEAR TSUIM”. It therefore came to the conclusion that the land Stella Aso Siaw bought and transferred part of same to Plaintiff was not situate at Chuim or Tsuim but was situate at Teiko Adam near Chuim. The court found further that the Plaintiff’s vendor’s land from the site plan, straddled latitude 332000. Comparing this with the Defendant’s land which lies between longitudes 330 and 331 and latitudes 1166 and 1167, the Court found as a fact that the Plaintiff’s land did not fall within the Defendant’s family land. Also, the Court found that the Defendant had sued one Kwabena Boateng in the District Court and obtained judgment against him. It also found that when the Plaintiff became aware of the suit, he filed an Application for Stay of Execution, an Order to Set Aside the Judgment and for an Order of Joinder to the suit. However, due to an emergency, he had to return to the United Kingdom and could not pursue the suit. The Court held that since he was not a party to the suit at the time judgment was delivered, he could not be bound by the said judgment. The Court also found that the Defendant had admitted in his defence that he knew the Plaintiff’s vendor very well but he had now come to the realization that she acquired the land in dispute by fraud and that is why he was challenging her acquisition. The Court held that though the Defendant had alleged fraud, he neither pleaded fraud nor did he provide particulars of fraud. The Plaintiff who also pleaded and provided particulars of fraud against the Defendant could also not prove fraud. The allegations for fraud by the parties against each other were not proven. The court also found that the Plaintiff had put up a structure on the land and had been in control of the said land for over two decades i.e. from 1986 till 2011. The Court ruled that the Defendant’s action was statute-barred. Judgment was subsequently entered for the Plaintiff as per the reliefs endorsed on his writ. The Defendant has launched the instant appeal against the Judgment and relied on the following grounds of appeal to impugn the said Judgment (see p. 322 of the ROA): a) The Judgment is against the weight of evidence. b) The trial judge misread the judgment of the Appeal Court in the case of Samuel Kwasi Ntiri & Narko Konkai Tawiah vrs. Gbawe Mantse & Adam Kwatei Tawiah, Suit No. CA 166/99 when she found that the Defendant/Appellant’s (Plaintiff therein’s) land fell between longitude 330 and 331 and latitudes 1166 and 1167. c) The trial judge failed to make a finding that the Plaintiff’s grantor’s land of 0.29 acre is different from what Plaintiff claims his grantor gave him. d) The trial judge failed to make a finding that the Plaintiff’s document presented to the court on the disputed land was fictitious. e) The trial judge erred when she held that the judgment against Kwabena Boateng at the District Court Kaneshie did not affect the Plaintiff/Respondent herein. The Defendant prayed this Court to set aside the Judgment of the High Court, Land Division 6 and enter judgment for him. The Defendant’s Submissions It was the Defendant’s case that he was the Chief of Tsuim also known as Odorkor- Tsuim. He said his late father had allowed some people to live on the disputed land as caretakers. It was his case that the said caretakers put up a building on the land and then allowed one Kwabena Boateng to join them on the land. He later received information from these caretakers that Kwabena Boateng had caused the building to be pulled down under police supervision but without a court order. Following this incident, the Defendant instituted suit in the Kaneshie District Court and obtained judgment against Kwabena Boateng who he later found out was the current Plaintiff’s son. He argued that although the Plaintiff had testified that he obtained a grant from Madam Stella Aso Siaw in 1989 he was not able to describe or identify the land. He referred to the case of Anane v. Donkor (1965) GLR 188 where the court held that for a court to grant declaration of title to land, the subject matter must be clearly identified so that an order for possession may be easily executed. It was argued on Defendant’s behalf that the grant between the Plaintiff and his grantor was non-existent. It was their case that the Plaintiff had only tendered Exhibits “A-D” in support of their case. The Exhibit “B” series which was the conveyance the Plaintiff had relied on was not stamped and registered and had not been signed by the vendees. He referred to Section 36(2) of the Stamp Duty Act, 2005 (Act 689) and Lizori Ltd v. Boye and School of Science and Catering (2013-2014) 2 SCGLR 889 and argued that the said exhibits should not have been admitted in evidence because they had not been stamped and the requisite duty paid. The Defendant raised for the first time the issue of capacity. He argued that capacity could be raised at any time and can even be raised suo moto by the Court. It was his submission that the Plaintiff’s Attorney did not have capacity to prosecute the instant matter on behalf of Mr. and Mrs. Kwaku and Dina Boateng. It was his case that in the Attorney’s witness statement found at p. 171 of the ROA it was stated that the Plaintiff was Benjamin Kwaku Boateng. He argued that since the land was said to be owned by the Plaintiff and his wife, the power of attorney which was in the name of Plaintiff alone without the consent of his wife rendered it void. He argued further that Exhibit “A” attached to the application for injunction dated 22nd August, 2013 was not commissioned. The writ was issued on 12th July, 2013. This, he argued, meant that as at the time the writ was issued the Power of Attorney was incompetent. The commissioned Power of Attorney which was attached to the witness statement dated 11th November, 2016 was not dated by the commissioner when he was supposed to have commissioned it. It was, according to him, stamped before being commissioned which rendered same void. The Defendant abandoned the rest of the grounds of appeal and stated that he would argue grounds (a) and (c) together. These were: a. The Judgment is against the weight of evidence. c. The trial judge failed to make a finding that the Plaintiff’s grantor’s land of 0.29 acre is different from the Plaintiff’s claims his grantor gave him. He submitted that the Plaintiff prosecuted his suit with 4 different names as follows: i. In paragraph 2 of the Statement of Claim he referred to himself as Benjamin Kwaku Boateng and one Diana Boateng as his wife. ii. In his Attorney’s witness statement, they were referred to as Mr. Kwaku and Mrs. Dina Boateng. He contended that the Plaintiff stated that his land size was 0.29 of an acre. However, the site plan is only in respect of 0.20 of an acre. He argued further that though the Plaintiff had claimed to had been in possession of the land for more than 12 years, he never led any evidence in support of that claim. The Plaintiff’s Submissions The Plaintiff argued that the general principle of law is that he who alleges must prove. He stated that the land comprises a two bedroom and kitchen on it. It was his case that his vendor, Stella Aso Siaw had her house on part of the land in dispute and she sold part of the land to him. Since she had been on the land since 1976, he argued, that if the Defendant had any interest at all in the land, he was caught by the statute of limitations. The Defendant abandoned the other grounds of appeal but argued grounds (a) and (c) alone. He also raised the issue of the Plaintiff’s capacity to mount the instant suit. We will look at the issue of capacity first before proceeding to examine the grounds of appeal that were actually argued in this matter. The issue of capacity can be raised at any stage of the proceedings, even on appeal. Capacity is usually raised in the pleadings and then tried as a preliminary issue or set down as an issue to be dealt with at the trial. A person whose capacity is challenged is required to adduce evidence to show that he/she has capacity to maintain the suit. See the cases of Akrong v. Bulley (1965) GLR 409 and Sarkodie The Defendant has attacked the Power of Attorney granted by Plaintiff in the following words: Exhibit “A” attached to the Plaintiff/Respondent’s Attorney’s witness statement, clearly renders the attorney of the Plaintiff/Respondent capacity void because Plaintiff/Respondent alone cannot grant the power of attorney to his attorney without the notice and consent of his former wife. The property per Exhibit “A” is jointly owned by them and so one of them cannot grant a Power of Attorney to prosecute the case. The Plaintiff has instituted suit per a Writ of Summons which can be found at p. 1 of the ROA. The Suit Title is Benjamin Kwaku Boateng, 111 Fearnley House, Vestry Road, SE5 8JS, London, United Kingdom Suing per his Lawful Attorney Emmanuel Kofi Tawiah vrs. Nii Aflah, Terazzo Road, Odorkor Twim, Odorkor, Accra. The only persons whose names are on the Writ of Summons are the Plaintiff, his Attorney and the Defendant. For all intents and purposes, the said Diana Boateng was not a party to the suit. The Attorney therefore is at liberty to prosecute the suit on behalf of his Principal who happens to be Benjamin Kwaku Boateng. Defendant has contended that the Power of Attorney lacks the Commissioner of Oath’s, signature, date and seal. Furthermore, the Defendant has stated that the Power of Attorney attached to the application for injunction dated 22nd August, 2013 was not commissioned. The writ was issued on 12th July, 2013 and therefore, he argued that the Power was void for not being commissioned. The Defendant through his Counsel has stated at p. 7 of his written submissions as follows: However, the Power of Attorney attached to the application for interim injunction dated 22nd August, 2013 was not commissioned. This can be found at page 48 of the ROA. The Writ of Summons was filed on 12th July, 2013. This shows that at the time the writ was filed, the Power of Attorney was incompetent. The commissioned Power of Attorney which was attached to the Witness Statement dated 11th November 2016 was not dated by the Commissioner when he was supposed to have commissioned it. This can be found at p. 176 of the ROA. Your Lordships, on the 22nd August 2013, Plaintiff/Respondent filed injunction application against the Defendant/Appellant and attached to the application power of attorney dated 25th June 2013, without the Commissioner for Oaths or Notary Public seal and signature. When the Plaintiff/Respondent realized that the said power of attorney is incompetent and void, he then ran to the Commissioner for Plaintiff/Respondent should have known that he had to commission the said Power of Attorney before stamping it, but rather stamped it before commissioning it which renders it void. We have looked at Exhibit “A” found at p. 176 of the ROA. It is a Power of Attorney attached as an Exhibit to the Plaintiff’s Witness Statement. It has been signed by the Plaintiff in the presence of a witness. There is on the face of the document, the signature and stamp of a Commissioner for Oaths, one Maxwell Nyamadi. No evidence has been led before this Court to substantiate the allegations the Defendant has made through his written submissions. We can only apply the maxim omnia praesamuntur rite et solemniter essa acta (all things are presumed to be correctly and solemnly done). In this vein, the Power of Attorney cannot be declared invalid as there is no evidence on the face of it that it was irregular or invalid at the time it was offered in evidence. The Defendant has argued that the judgment is against the weight of evidence. In an appeal, the onus is cast upon an Appellant who complains that the Judgment is against the weight of evidence is to clearly demonstrate to the Appellate Court that there were certain lapses in the evidence on record which if applied in his favour, could have changed the decision in his favour or that certain pieces of evidence have been wrongly applied against him. See Djin v. Musah Baako (2007-2008) SCGLR686 @ 689. See also Tuakwa v. Bosom (2001-2002) SCGLR 61. An appeal is by way of re-hearing, particularly where the appellant alleges in his notice of appeal that the decision of the trial court is against the weight of evidence. In such a case, although it is not the function of the appellate court to evaluate the veracity or otherwise of any witness, it is incumbent upon an appellate court, in a civil case to analyses the entire record of appeal, take into account the testimonies and all documentary evidence adduced at the trial before arriving at its decision, so as to satisfy itself that, on a preponderance of the probabilities, the conclusions of the trial judge are amply supported by the evidence. An appeal as indicated by Rule 8(1) of the Court of Appeal Rules (1997) CI 19, is by way of rehearing. What this provision seeks to say is that the appellate court will deal with the matter as if it was hearing the matter at first instance. See the cases of Mamudu Wangara v. Gyato Wangara (1982-83) GLR 639 @ 655 CA; Ansu-Agyei v. Fimah (1993- 94) 1 GLR 299 at 305-306 SC and Praka v. Ketewa (1964) GLR 423 @ 426, SC. In rehearing the matter, the appellate court is required to examine the whole record of appeal, taking into account all the evidence, oral and documentary, to satisfy itself that the judgment is amply supported by the evidence on record, upon the preponderance of the probabilities. See Koglex Ltd (No. 2) v. Field (2000) SCGLR 175 @ 184; Tuakwa v. Bosom (2001-2002) SCGLR 61 @ 65 and Ackah v. Pergah Transport Ltd (2010) SCGLR 729. In this wise, the appellate court is enjoined to put itself in place in the trial court and evaluate the evidence. In so doing, it could make inferences from the facts on record and either affirm the judgment or interfere with the judgment where it deems fit. In its duty to rehear the matter, an appellate court is in the same position of the trial court and can make up its own mind on the facts and also draw its own inferences from the facts as found. Based on its evaluation of the evidence on record, the appellate court may interfere with the findings of facts made by the trial court, where good reasons exist for such interference. The authorities are however clear that findings of fact made by a trial Court can only be interfered with where such findings are not supported by the evidence on record; are perverse, or are based on wrong inferences drawn from established facts. These principles have been established in cases such as Simmonds v. Trassaco Estate Development Company (2010-2012) 1 GLR 393 CA; at holding 7 in the headnotes; Bonney v. Bonney (1992-93) Part 2 GBR 779 @781 SC and Jass Company Ltd & Anor v. Appau & Anor (2009) SCGLR 265 @275. In Amoah v. Lokko & Alfred Quartey (substituted) Gloria Quartey & Others (2011) 1 SCGLR 505, the court whilst conceding that it was the exclusive duty of a trial judge to make primary findings of facts which will constitute the means by which the final outcome of the case would be arrived at, however held that, this notwithstanding, an appellate court was obliged to evaluate the evidence in coming to a decision whether the conclusions and findings of the trial court, which are being assailed, are supported by the evidence on record. It is only when the findings of fact made by the trial court are not supported by the evidence on record that the appellate court would interfere and substitute its own findings for those of the trial court. Findings made by a trial court would be irrefutable when: a. They are supported by the evidence on record. b. They are based on the credibility of the witnesses. c. Where the trial court had the opportunity to see and observe the demeanour of witnesses; and was satisfied with the truthfulness of their testimonies. On the other hand, the findings of the trial court may be interfered with in the following circumstances: i. Where the court had taken into account matters which were wrong in law. ii. Where the court excluded matters, which were critically necessary for consideration. iii. Where the court had come to a conclusion which no court, properly instructing itself, would have reached; and iv. Where the findings were not proper inferences drawn from the facts. With the above considerations in mind, we shall now proceed to consider the evidence which the trial judge is said to have glossed over and wrongly entered judgment for the Plaintiff whilst dismissing the Defendant’s case by considering the judgment of the trial judge on the various issues dealt with in determining the matter. We shall next consider whether the trial court’s findings and conclusions on these issues are supported by the evidence led at the trial. We will then finally consider the allegations made by the Appellant against those findings and whether the appellant has been able to amply demonstrate to the court’s satisfaction the lapses they have complained of. The Plaintiff’s Evidence The Plaintiff who gave evidence through an attorney stated that the defendant as chief of Odorkor had laid claim to his land which he had acquired from one Stella Aso Siaw in 1989. The vendor had herself acquired the land from one Emmanuel Aflah Addo. He went into occupation by putting up a structure on the land. He even evicted squatters on the land at some point. From the parol evidence, the attorney himself had lived in the house for about 5 years and the Plaintiff always lived in the house whenever he came to Ghana from the United Kingdom. PW1, testified that he was Plaintiff’s vendor’s son and that he was aware that his mother who had acquired land in 1976 and had sold a portion of the land on which their house stood to the Plaintiff as he was 22 years old at the time. He stated that his mother acquired plots of land from the Nii Aflah Family of Odorkor and had been in undisputed possession for so many years until she took a loan from the bank. She had to sell off a portion of the land to pay off the loan. And it was for that reason why she sold a portion of the land to the plaintiff in 1989. After the sale, the Plaintiff put a caretaker in possession The Defence The Defendant also gave evidence via an Attorney. It was his case that he was a member of the Gbawe Tawiah family of Odorkor Tsuim. He said he put Mr. Jacob Amoah, Mr. Onyinah and their respective families on the land in 2006 as caretakers. He stated that he found other people on the land who were there without the consent of the Tsuim Tawiah family. He said the Plaintiff’s son Kwabena Boateng was allowed by the caretakers to remain on the land. Later, the Plaintiff’s son forcibly demolished the structures on the land. It was then that the Defendant instituted suit against the Plaintiff’s son and obtained judgment. Although the Plaintiff applied to be joined to the suit, he failed to prosecute his application for joinder. It was his case that the land in dispute formed part of a Deed of Gift made in 1917 by the Asere Stool to their ancestor Nii Tsuim Tawiah who was the first chief of Odorkor-Tsuim. He stated further that the land was granted to his father, Samuel Okaikoi Tetteh by his mother Naa Konkai Tawiah and therefore formed part of his estate. He said also that the land also formed part of the land declared by a Court of Appeal to be the property of the Tsuim Tawiah family in 2001 in the case of S. K. Ntiri & Naa Konkai Tawiah vrs. Gbawe Mantse & anor. It was his case that the Plaintiff’s purported vendor had no capacity whatsoever to make any grant of land to the Plaintiff. He also maintained that the Plaintiff put up a 2-bedroom house on the land in dispute during the pendency of the instant suit. It was his case that the Plaintiff’s vendor, Aso Siaw got the land through fraudulent means. One Thomas Amoo gave evidence on defendant’s behalf. It was his case that in 2001, the Defendant gave him a piece of land on which he put up a structure. He was in occupation when the Plaintiff’s Attorney informed him that the land belonged to his father. He later caused the property to be demolished. The matter was reported to the police and eventually ended up in court where judgment was entered against Plaintiff. He was ordered to pay damages for the destruction of the property. The Judgment of the District Court in the suit titled Nii Aflah v. Kwabena Boateng is dated 18th September, 2012. (See p. 145 of the ROA). The District Court stated as follows: The Plaintiff claims against the Defendant for immediate ejectment from the land belonging to the Plaintiff for development. Upon service of the Writ of Summons on the Defendant, one Benjamin Boateng filed a motion on notice for an order to set aside the judgment and for him to be joined to the suit as second defendant dated 24th April, 2012. Counsel for the (Applicant) Benjamin Boateng, who sought to move the said motion on 8th May, 2012 was then informed by the court that judgment had not been given in the case yet. Counsel who was on his feet then told the Court that he will treat his application solely as joinder. Just then, the Court noticed that the Defendant had not served the said motion on the Plaintiff. The Court therefore ordered the Defendant to serve the Plaintiff with the motion ….and the case was adjourned …. Per the records of this case, I find no process that shows that the Counsel has complied with the orders of the Court by serving the Plaintiff with the motion to join Benjamin Boateng as the 2nd Defendant. The Plaintiff in the District Court suit had applied for Summary Judgment for Default of Statement of Defence which was granted. In the penultimate paragraph of the judgment the Court said: Having considered the evidence of Plaintiff and his witness vis-à-vis the processes and having taken into consideration Exhibits A, B and C and also bearing in mind that the Defendant has not filed any defence to the action and not appeared in court after being notified on several occasions by Hearing Notices, I come to the conclusion that the Defendant has no defence to the action and on that note I will enter judgment for the Plaintiff against the Defendant. I hereby order the Defendant, his agents, assigns, servants and workmen to vacate from the property in dispute forthwith. This is the judgment the Defendant has argued is res judicata. In Re: Secretase Stool; Nyame v. Kese alias Konto (1998-99) SCGLR 476 the Court described the plea of res judicata as being where a final judgment is rendered by a judicial tribunal on the merits is conclusive as to the rights of the parties and their privies and as to them, constitutes an absolute bar to a subsequent action involving the same claim, demand or cause of action. The court referred to Spencer-Bower and Turner’s book Res Judicata (2nd ed) at p. 9 thus: Where a final decision has been pronounced by a … judicial tribunal of competent jurisdiction over the parties to and the subject matter of the litigation, any party or privy to such litigation, as against any other party or privy thereto … is estopped in any subsequent litigation from disputing or questioning such decision on the merits whether it be used as the foundation of an action or relied upon as a bar to any claim. The Court also held that there were 3 types of estoppel: (1) cause of action estoppel, (2) issue estoppel in the strict sense and (3) issue estoppel in the wider sense. The cause of action estoppel should be properly confined to cases where the cause of action and the parties (or their privies) are the same in both current and previous proceedings. Issue estoppel arises when issues whether factual or legal have already been determined in previous proceedings between the parties (issue estoppel in the strict sense) or where issues which should have been litigated but were not brought before the court (issue estoppel in the wider sense). In the instant suit, the Plaintiff has sued for a declaration of title to land and a perpetual injunction restraining the Defendant and all who claim through him from dealing with the land in contention. It would appear that the case before the District Court was for ejectment. The causes of action are not the same. The suit was also against Kwabena Boateng and not Benjamin Kwaku Boateng. A reading of the judgment indicated that the Plaintiff applied to be joined to the suit as 2nd Defendant. The application was however never moved and therefore the suit terminated without him ever being joined. As a result, he never was a party to the suit. We therefore agree with the trial court in its finding that the Plaintiff was never party to the suit. He was never heard and therefore in the time honoured rule of natural justice, a holding otherwise would be a breach of the audi alteram partem principle. See Re Ashalley Botwe Lands; Adjetey Agbosu and Others v. Kotey & Others (2003-2004) 1SCGLR 420. Even if the parties to the litigation were the same, the action for trespass to land and ejectment from same would not create estoppel in a subsequent suit for declaration of title. The District Court did not declare title in the Defendant. The trial court on the other hand had to make a determination of title as that was an issue left at large. As a result, the Plaintiff could not be estopped from bringing the action which he did. See the case of Sam v. Noah (1987-88) 2 GLR 213 One of the Appellants’ plaint is that the judgment was against the weight of evidence as the Plaintiff’s documents should not have been admitted in evidence for lack of stamping. We have studied Exhibit “B” found at p. 114 and attached to the Plaintiff’s Attorney’s Witness Statement. It is dated 10th January, 1976 and made BETWEEN Emmanuel Afflah Addo of Accra (hereinafter called “THE VENDOR” of the one part and STELLA ASO SIAW (hereinafter called “THE PURCHASER”) of the other part. In the recitals, the following information is garnered: 1. By a Deed of Conveyance dated 29th May 1955 and made between Sarbah Mensah Successor of Nee Doku Aduoto Wulomo and Head of the Teiko Adam Family of the one part and Awudu Razaku of the other part …. and heriditaments therein described were conveyed to the said Razaku forever. 2. By a Deed of Conveyance dated 8th February 1956 stamped as No. AC.643/56 and made between Awudu Razaku of the one part and the Vendor herein of the other part the land and hereditaments therein described were conveyed to the Vendor. 3. The Vendor as owner of the land and hereditaments is hereinafter described which forms part or portion of the land described in the above … indentures hereby conveys unto the Purchaser the land forever in consideration of sums of ¢200.00 paid by the Purchaser to the Vendor. 4. The Vendor hereby acknowledges from the receipt from the Purchaser of the sum of ¢200.00 being purchase price of the said land. 5. The land situate, lying and being at TEIKO ADAM NEAR TSUIM – ACCRA containing an approximate area of 0.29 acre bounded on the North-West by proposed road measuring 100 ft more or less on the North-East by J. Welbeck’s land measuring 130 ft more or less, on the South-East by Vendor’s land measuring 100 ft more or less on the South-West by A. M. Allotey’s land measuring 130 ft more or less which piece of land is more particularly delineated on the site plan attached hereto and thereon shown edged pink which shows the relevant measurements Exhibit “B” which is the head lease under which the Plaintiff’s Vendor obtained her grant has the impression of a stamp embossed on it and the receipt of the Commissioner of Income Tax impressed on it. (See pp 114-117 of the ROA). Following this, Exhibit C was executed (see p. 122 of the ROA). This is a Conveyance between Stella Aso Siaw as Vendor and Mr. and Mrs. Kwaku and Diana Boateng and is dated 20th June, 1989. Its recitals are as follows: 1. By a Conveyance made the 10th day of January 1989 between ISHMAEL AFLAH ADDO of Accra and the Vendor (registered number AC. 10185/76) the property known and situated at TEIKO ADAM NEAR TSUIM, ACCRA, was conveyed to the Vendor herein forever. 2. The Vendor as owner of the said land conveys the part of the property which is shown in the attached plan to the purchaser forever in consideration of the sum of ¢750,000.00 (seven hundred and fifty thousand cedis) the purchase price of the property. 3. The Vendor acknowledges the receipt from the purchaser of the said sum of ¢750,000.00 (seven hundred and fifty thousand cedis) the purchase price of the property. 4. The property consists of a piece or parcel of land situate, lying and being at TEIKO ADAM NEAR TSUIM-ACCRA CONTAINING AN APPROXIMATE AREA OF 0.29 acre bounded on the North-West by proposed road measuring 100 ft more or less on the North-East by J. Welbeck’s land measuring 130 ft more or less, on the South-East by Vendor’s land measuring 100 ft more or less on the South-West by A. K. Allotey’s land measuring 130 ft more or less which piece of land is more particularly delineated on the site plan attached hereto and thereon shown edged pink which shows the relevant measurements. Although Exhibit C is not stamped, it emanates from Exhibit B which is stamped. The Plaintiff therefore was the owner of the land conveyed to him by Stella Aso Siaw. From the evidence, she did not convey the whole of the 0.29 acre of land to the Plaintiff but a part of it which measured 0.20 acre (See Exhibit “B1” found at p. 178 of the ROA). This evidence that part and not the whole parcel of land was conveyed to the Plaintiff is corroborated by PW1 when he stated in his Witness Statement found at p. 124 of the ROA as follows: 1. I am Patrick Ofori Ofosu. … I came to testify on behalf of the Plaintiff. I am their adjoining neighbor and also the son of Stella Aso Siaw, the person who sold part of her land to the Plaintiff. 2. My mother’s name is Stella Aso Siaw. She was a trader dealing in cloth at Makola and other general items. I am aware that my mother sold a piece of land on which our house stands situate at North Odorkor in the year 1989 to the Plaintiff. Prior to the sale of the land on which the house of Plaintiff stands, the land used to be and formed part of our land with our house. At the time the sale transaction took place in 1989, I was about 22 years old or thereabout. My mother died in the year 2000. 3. In 1976, my mother acquired some plots of land at North Odorkor on B Buta Link from the Nii Aflah Family of Odorkor. …. She built a house on it and we lived there peacefully. There has not been any claim that our land continued to belong to the Nii Aflah family from the date of purchase to date. PW 1 gave the reason for which part of the land his mother owned was sold to the Plaintiff. He said: My mother sold the land under strenuous circumstances. Being a trader, she took a bank loan from the Agricultural Development Bank. With the passage of time repayment of the loan became very difficult for her. She had to raise funds to repay the loan. One of the pragmatic measures she took was to sell part of the land on which our house stands. She contacted Plaintiff who was then resident in the United Kingdom and offered her land for sale to the Plaintiff. The Plaintiff accepted the offer and bought the land. My mother used the proceeds to redeem the debt from the Bank. Initially, even after the sale of the land to the Plaintiff, there was no partition such as a wall. The sale of the land to the Plaintiff notwithstanding, the land remained in one full piece. We were therefore caretakers of the land until my mother constructed a wall to partition the land after a year of the sale or thereabout. Plaintiff brought his brother-in-law as caretaker to live on the land. Then our authority over the land subsided. Section 7(1) of the Evidence Act, 1975 NRCD 323 provides as follows: Corroboration consists of evidence from which a reasonable inference can be drawn which confirms in a material particular the evidence to be corroborated and connects the relevant person with the crime, claim or defence. The Plaintiff’s evidence on his acquisition has in the main been corroborated by PW1 and also by the documents evidencing his root of title. The land has been described in the documents as lying and being at Teiko Adam near Chuim. This finding made by the trial judge is supported by the evidence and will not be disturbed. The trial court also accepted PW1’s evidence that one plot of the land his mother owned was conveyed to Plaintiff. This finding was also supported by the evidence that it was not the whole of the plot measuring 0.29 acres that was sold to the Plaintiff. It was part of the 0.29 acres that was so conveyed. The Plaintiff told the court that he put up a structure on the land and has been in physical possession of the land since 1989. This has also been corroborated by PW1 who said his family had been caretakers of the land until the Plaintiff installed his brother-in-law thereon. The court therefore found that the Defendant, his predecessor in title and his family had seen the Plaintiff and his predecessor in title on the land and had raised no objection to their presence. This is when the evidence of the Defendant’s Attorney in cross-examination and found at pp 261-262 becomes instructive: Q: The Plaintiff’s house is just by Stella Aso Siaw’s house? A: The Plaintiff has no property there. What he is currently occupying belongs to the Tsuim Tawiah family. Q: Exhibit D attached to the Plaintiff’s witness statement is the photograph of the Plaintiff’s house on the land. A: Exhibit D is a structure put up by Kwabena Boateng who is the son of the Plaintiff after we granted him permission to do so. He did not claim ownership of the land through his father at the time but pleaded with us to permit him to put up the structure. It is so because Stella Aso Siaw deceived them and collected money from him to grant him land but upon investigation, he realized that Aso Siaw had no land in the area. Q: Since 1976 your family has never challenged Stella Aso Siaw’s ownership of the land she acquired from Emmanuel Aflah Addo. A: It is not that we never challenged her and I have mentioned earlier on that I know Aso Siaw and her children very well and we have come to the realization that she got the land by means of fraud. That is why we are challenging it now. The land in dispute does not form part of the land granted to her in 1976. Q: Since she acquired the land in 1976 and built on it you have never sent her to court neither have you sent her successors to court. A: I have mentioned that we have a very good relationship with Aso Siaw and her children but once we have realized that the land was acquired by means of fraud, we are going to take further steps to reclaim the land. Needless to say, apart from the reference to fraud in connection with Aso Siaw’s acquisition of the land, the Defendant neither pleaded, particularized nor made any attempt to lead any evidence to found his allegation. It is therefore little wonder why the trial judge gave this evidence short shrift by saying at pp. 319-320: It is not in dispute that in 1917 the Isere Stool made a gift of land to the Defendant’s ancestor, Nii Chuim Tawiah also known as Gbawe Tawiah of Accra, the first chief of Odorkor-Chium. It is again not in dispute that the Court of Appeal affirmed the gift of land to be the property of the Chium Tawiah family in 2001 in a suit entitled S. K. Ntiri v. Naa Konkai Tawiah v. Gbawe Mantse & Anor. For purposes of argument if the land in dispute together with the land occupied by Stella Aso Siaw forms part of the Defendant’s family lands, and was sold by Emmanuel Aflah Addo to Stella Aso Siaw in 1976, and Stella Aso Siaw in her lifetime disposed of part of her land to the Plaintiff herein in 1989, which transaction was reduced into writing and exhibited as Exhibit B; and the Plaintiff has built on his portion of the land. Even though Exhibit B has its shortcomings as found by the Court and had invoked equity to perfect the transaction. At the time of the judgments of both the High Court and the Court of Appeal the land had already been alienated to the Plaintiff’s grantors. The Plaintiff and all the grantors were not parties to the High Court and Court of Appeal cases and therefore cannot be bound by both judgments. The trial court also found that the Plaintiff had paid ¢750,000.00 for the land, entered into possession, built a 2-bedroom self-contained house, caused the ejection of those who he found on the land and demolished DW1’s structure and secured same by walling the property. The Court also found that Plaintiff had been in possession of the property for more than 12 years and that his possession had been open, visible and unchallenged. The Court on the strength of these facts determined that no action shall be brought by any person after the expiration of 12 years from the date the cause of action accrued, which was determined as being 1990 when the Plaintiff entered onto the land and began construction. We have noted that the Defendant sought leave to file a Reply to the Plaintiff’s submissions. This Reply did not address the Plaintiff’s submissions but sought to raise the capacity of the Plaintiff’s Solicitor to issue the writ. Counsel made allegations that the Plaintiff’s Solicitor did not have a practicing license at the time he purported to issue the writ which culminated in the Judgment which is being appealed. Suffice it to say, coming in the Reply, neither the Plaintiff nor his solicitor would have had the chance to respond to the allegations contained therein. To the extent that the Reply was not in response to the Plaintiff’s submissions, it would be ignored. After reviewing the evidence both oral and documentary, we conclude that the trial judge did not err in her findings of fact and the conclusions she drew from those findings. The Judgment is amply supported by the evidence on record. The appeal fails in its entirety and same is dismissed. I AGREE I ALSO AGREE SGD JENNIFER A. DODOO (MRS) (JUSTICE OF APPEAL) SGD SENYO DZAMEFE (JUSTICE OF APPEAL) SGD P. BRIGHT MENSAH (JUSTICE OF APPEAL) COUNSEL Mr. Joseph Kaponde for plaintiff/appellant Mr. Joseph Kweku Gyimah for defendant/appellant 27