ABRAHAM ANANE ADJEI VRS ALHAJI MASAUD ABUBAKAR & AKANNI LOGISTICS LTD -

IN THE SUPERIOR COURT OF JUDICATURE

IN THE SUPREME COURT

ACCRA – A.D. 2026

CORAM: PWAMANG JSC (PRESIDING)

ASIEDU JSC

DARKO ASARE JSC

DZAMEFE JSC

BARTELS-KODWO JSC

CIVIL APPEAL

J4/03/2025

29^THAPRIL, 2026

ABRAHAM ANANE ADJEI ………. PLAINTIFF/APPELLANT/RESPONDENT

VRS

ALHAJI MASAUD ABUBAKAR ………… DEFENDANTS/RESPONDENTS/
AKANNI LOGISTICS LTD APPELLANTS

JUDGMENT

ASIEDU, JSC:

[1.0]. My lords, per an amended writ of summons and a statement of claim, filed on the 27^th April 2018, the Plaintiff/Appellant/Respondent (hereinafter referred to as the Plaintiff) claimed the following reliefs against the Defendants/Respondents/Appellants, (hereafter referred to as the Defendants)

“a) Declaration that the plaintiff is the sub-lessor of all that piece or parcel of land situate, lying and being in the Greater Accra Region known as Plot No. 79 and lying South of the Accra -Tema Motorway and on the North East of the School of Nursery and Church Site 3 and bounded on the North East by Plot No. 76 and the South East by Plot No. 80 more or less.

b) Perpetual injunction restraining the Defendants, his agents, workers, servants, privies, assigns and all persons claiming through them, from entering, occupying or in any way whatsoever dealing with the Plaintiff’s land.
c) An order for recovery of possession
d) Damages for trespass.
e) Cost including solicitor’s fees”.

[1.1]. The 1^st Defendant also filed a counterclaim against the Plaintiff for:

“a. A declaration that the 1st Defendant is the owner of all that piece and parcel of land on 0.17 hectare (0.41) of an acre more or less being parcel No. 11 Block 3 section 003 situate at Airport West Residential Area and is delineated on registry map No. 003/003/1988 in the Land Title Registry, Victoriaborg Accra and being the piece or parcel of land shown and edged [pink colour on Plan No. 16/2015 and same conveyed valid title3 of the said land to 2nd Defendant.

An order of perpetual injunction to restrain the Plaintiff whether by himself, agents, servants, assigns, privies or however from interfering with the 2nd Defendant’s quiet enjoyment and possession of the land.
Damages for Tre3spass
Cost”.

[1.2]. The 2^nd Defendant also filed a counterclaim wherein it claimed against the Plaintiff:

“a. A declaration that the 2^nd Defendant is the owner of all that piece and parcel of land on 0.17 hectare (0.41) of an acre more or less being parcel No. 11 Block 3 section 003 situate as Airport West Residential Area and is delineated on Registry Map No. 003/003/1988 in the Land Title Registry, Victoriaborg Accra and being the piece or parcel of land shown and edged pink colour on Plan No. 16/2015 annexed to a Land Title Certificate dated 15th October 2015.

Recovery of Possession.
Perpetual injunction restraining the Plaintiff, whether by himself, servants, agents, privies whomsoever from entering on and/or encroaching upon the said land or doing any works thereon (or a portion thereof) the subject matter of this suit or interfering in any manner with the 2^nd Defendant’s ownership of the said piece or parcel of land.
Cost including counsel fees.
In the alternative should the honourable court adjudge the Plaintiff the owner of the land, instead of granting the Plaintiff a possession order, the court should:

Make an order granting the 2^nd Defendant protection under the Land Development (Protection of Purchasers) Act, 1960 (Act 2) since the 2^nd Defendant is an innocent purchaser who purchased the land for valuable consideration without notice of the defect in the title of the 1^st Defendant or the interest of the Plaintiff.

Order that the 1st Defendant conferred title on the land to the 2^nd Defendant.
An order directed at the 2nd Defendant to pay to the Plaintiff a sum of money as compensation as provided for under the Land Development (Protection of Purchasers) Act, 1960 (Act 2) since greater hardship and injustice would be suffered by the 2nd Defendant should the Plaintiff be adjudged the owner of the land.
An order directed at the 2^nd Defendant to pay the Plaintiff a reasonable amount for his cost incurred in the instant suit.”

[2.0]. After the trial, the High Court dismissed the Plaintiff’s claims and entered judgment in favour of the Defendants on their counterclaim. Aggrieved by the decision of the High Court, the Plaintiff appealed to the Court of Appeal which, after hearing the appeal, reversed the judgment of the High Court and entered judgment in favour of the Plaintiff and dismissed the counterclaims filed by the Defendants. It is against the judgment of the Court of Appeal that the Defendants have filed the instant appeal on the grounds that:

“a) The Court of Appeal erred in holding that the identity of the Respondent’s land was not in dispute.

b) The Court of Appeal erred in rejecting the contract of sale executed in favour of the 1^st Appellant because of the absence of a site plan.
c) The holding of the Court of Appeal that the 2^nd Appellant knowingly continued to develop the land pendente lite is not supported by the evidence on record.
d) The Court of Appeal erred in holding that the 1^st Appellant fraudulently procured his land certificate.

Particulars of Errors of Law

The alleged fraud was not proven beyond reasonable doubt
The court misapplied the law and procedure to making a finding of fraud.

iii. The court relied on inconsistent and contradictory facts and evidence to make the finding of fraud.

e) The Court erred in fact and in law in holding that the 2^nd Appellant was not a bona fide purchaser of the disputed land.

Particulars

The Court erred in its application of the law and principles governing plea of bona fide purchaser for value without notice.
The Court supposed that once the 1^st Appellant had been injuncted from interfering with the land same constituted notice to the 2^nd Appellant.
f) The Court of Appeal committed a grave error of law when it suo motu struck down the 1^st Appellant’s land certificate as having been fraudulently obtained.

Particulars of Error of Law

The Respondent never prayed for the striking out of the 1^st Appellant’s land certificate for fraud as a relief nor was same manifestly expected of a grant from the evidence adduced during the trial
The decision of the court is per incuriam the principle of the law espoused in Dam v. Addo [1962]2 GLR 200 that the court should not substitute a case put forth by a party.
g) The Court of Appeal misdirected itself in holding that the 2^nd Appellant was not entitled to the land.

Particulars of Misdirection

The Court failed to appreciate that aside the 1^st Appellant’s land certificate which the court erroneously found fraudulent, the 1^st Appellant’s grant per his conveyance remain unaffected.
The court misapplied the nemo dat quod non habet principle to the facts and evidence before it.
h) The Court of Appeal erred in holding that the damages awarded by the trial court in favour of the 2^nd Appellant was harsh and excessive.
i) The judgment of the Court6 of Appeal is against the weight6 of evidence adduce at the trial.

[3.0]. We will deal with grounds (a), (b) and (i) together in accordance with the statement of case filed by the parties herein. These grounds are that: a) The Court of Appeal erred in holding that the identity of the Respondent’s land was not in dispute; b) The Court of Appeal erred in rejecting the contract of sale executed in favour of the 1st Appellant because of the absence of a site plan; and i) The judgment of the Court of Appeal is against the weight of evidence adduced at the trial.

These grounds of appeal, together, entails an interrogation of the issues concerning the validity of the acquisition of the land in question by the parties herein. Under these grounds of appeal, it was submitted on behalf of the appellants that whereas the trial High Court Judge found the Plaintiff’s deed of assignment unworthy of any probative value due mainly to its non-compliance with the requirements of the Survey (Supervision and Approval Plans) Regulations, 1988 (LI.1444) and therefore rejected same as incapable of proving the Plaintiff’s title to the disputed land, the learned Justices of the Court of Appeal expressed the view that the identity of the land claimed by the Plaintiff was well known and therefore there was no need to deal with “the tangential non-issue of what land it was”. The Defendants/Appellants argued that the effect of the view expressed by the Court of Appeal was to relieve the Plaintiff/Respondent of the duty to adduce evidence to prove the identity of the land claimed by him and to the extent that the Defendants challenged that the Plaintiff’s land was different from the land in dispute, the Court of Appeal fell into error by absolving the Plaintiff from proving the identity of the land in question. It was also pointed out that the site plan submitted by the Plaintiff to the Surveyor for the preparation of the composite plan was not what was contained in the assignment tendered by the Plaintiff herein. Counsel, therefore, submitted that once the Plaintiff/Respondent failed to adduce evidence to identify the land he claims; the Plaintiff was not entitled to the land in dispute.

[3.1]. Counsel argued further that the Plaintiff/Respondent herein failed to adduce evidence of possession of the land in dispute beside repeating his averments on oath. Counsel submitted that the failure to adduce evidence to prove the identity of his land, coupled with the failure to lead evidence on his alleged possession “warrants the conclusion that the Plaintiff failed to prove that he validly acquired the land”.

[3.2]. It has been submitted on behalf of the 1^st Defendant that he acquired the land in dispute from Chantian Thia who executed a deed of assignment to evidence the transaction on the 4^th May 2009. According to counsel, testimony of due diligence conducted by the 1^st Defendant which revealed that there was no encumbrance on the land was not challenged. The 1^st Defendant tendered in evidence a deed of assignment and a land title certificate. Whereas the trial High Court accepted these as proof of the title off the 1^st Defendant to the land in question, the Court of Appeal found that no site plan was attached to the deed of assignment tendered by the 1^st Defendant. The Court of Appeal also held that the land certificate having been obtained during the pendency of the litigation “could only have been issued by fraud or mistake and cannot be allowed to subsist …”. Counsel argued that by virtue of the presumption of regularity of official document, the absence of a site plan was not material and that it was unjust for the Court of Appeal to reject the land certificate considering also that the Plaintiff failed to adduce evidence to rebut the presumption. This Court was, therefore, urged to set aside the verdict of the Court of Appeal and accord title in the 1^st Defendant.

[4.0]. In response to the submission above, the Plaintiff/Respondent referred to the pleadings filed by the Defendants/Appellant and submitted that the parties knew and laid claim to the same land in dispute. It was also submitted on behalf of the Plaintiff that the Defendants did not even have any site plan attached to the indenture which was, allegedly, executed in their favour by their grantor, Chantian Thia as opposed to the Plaintiff/Respondent. On the question of possession of the disputed land, Counsel for the Plaintiff/Respondent argued that “the claim of the Respondent that he possessed the land, caused footings to be installed and demolished an old-two-bedroom out house was confirmed in the evidence of the Respondent and corroborated by PW1”

[4.1]. Indeed, on the issue of the identity of the land claimed by the Plaintiff/Respondent herein, the learned Justices of the Court of Appeal found that the Plaintiff traces his root of title through Chian Jian Hua to Stephen Hudson Annancy [See page 157 of vol 4 of the ROA]. The Court of Appeal again examined the root of title of the 1^st Defendant herein and held that the description which the 1^st Defendant gave of the land in dispute does not correspond with the description of the land in his deed of conveyance. It must be placed on record that the Plaintiff traces his root of title through his immediate grantor right to the Government of Ghana. First, the Plaintiff tendered in evidence exhibit ‘AA1’ which is a lease between the Government of Ghana and one Stephen Hudson Annancy [See page 66, volume 1of ROA]. This lease which was executed on the 24^th July 1974, gives the description of the land demised to the lessee therein as:

“The Government demises onto the lessee all that piece of land being at plot No. 79, and containing an approximate area of 0.45 acre, situate at Airport West Residential are in the Eastern Region of the Republic of Ghana lying to the South of Accra – Tema motorway and to the north east of School Nursery and church site and bounded on the North-West by an unnamed road, on the North-East by plot No. 76, on the South-East by Plot No. 80 and on the South-West by Plot No. 84 which piece of land is more particularly delineated on Plan No. L. D. 8455/53492 attached hereby and thereon shown edged pink”.

The Plaintiff again tendered in evidence a sublease made between Stephen Hudson Annancy and Chen Jian Hua dated the 17^th day of May 2007 [See page 76 volume 1 ROA]. This sublease, also, repeated the description of the land leased to Stephen Hudson Annancy in the head lease. Evidence was further received from the Plaintiff in respect of a deed of assignment executed between the Plaintiff herein and Chen Jian Hua made on the 9^th day of June 2009. [See page 87, volume 1 ROA]. This deed of assignment also repeated the description of the land contained in the head lease between the Government of Ghana and Stephen Hudson Annancy. We find, just as the Court of Appeal did, that the land described by the Plaintiff herein as shown by the various deeds of conveyance tendered by the Plaintiff, sufficiently describes the land claimed by the Plaintiff as indorsed in the first relief on the Plaintiff’s writ of summons. This court, does not, therefore, see the value in the submission by counsel for the Defendants that the Plaintiff failed to adduce evidence to prove the identity of the land claimed by the Plaintiff and that the Court of Appeal granted immunity to the Plaintiff from leading evidence to prove the identity of the land in issue. Far from that, the Court of Appeal found that the question of the identity of the land claimed by the Plaintiff was a non-issue in view of the abundance of evidence on record as to the particular land which the Plaintiff claims. At any rate, the Surveyor who testified as a court appointed witness adduced evidence to the effect that the land claimed by the parties, on the ground, are the same. It is therefore incorrect for Counsel to submit that the Court of Appeal fell into error by excusing the Plaintiff from giving evidence to prove the identity of the land which he claims.

[4.2]. In his judgment, the learned trial Judge held at page 70 volume 3 of the ROA, among others, that “when it comes to the specific identity of land granted to an individual, it is the site plan handed him by his vendor/owner that will show the proper coordinates of the land so granted to him by his vendor and in the absence of a valid site plan one can hardly identify a land that has been granted to him”. Whiles the contribution of a site plan to the identification of the location of a parcel of land cannot be underestimated, the observation by the trial Judge creates the impression as though the presence of a site plan is the only means by which the location and identity of a parcel of land can be made. We wish to place on record that there are several means by which the identity of a parcel of land can be made. These include the description of the boundary owners of a parcel of land, the presence of boundary marks on the land and the name of the place where a parcel of land is situate. Thus, the fact that an owner of land is unable to produce a site plan is not of itself evidence that the land he claims does not belong to him if he can produce other evidence by which the land can be identified. Thus, the most important consideration is not the presence of a site plan per se but the presence of sufficient description of the land by which the land in question may be identified. In the instant matter, this court is of the view that to the extent that the land claimed by the Plaintiff is the same as the land subject matter of the head lease made in 1974 by the Government of Ghana to Stephen Hudson Annancy, the site plan contained in the head lease can be relied upon by the Plaintiff herein in addition to the written description of the land contained in the various conveyances tendered in court to support the Plaintiff’s claim to the land. We hold therefore that the land claimed by the Plaintiff herein is sufficiently described and identified by the evidence adduced by the Plaintiff herein.

[4.3]. On the question of possession, the Defendants say that the Plaintiff provided no evidence of possession as required by law. It is very important to point out that in his amended writ of summons and statement of claim filed on the 27^th April 2018, which can be found on pages 166 to 171, volume 1 of the ROA, the within named Plaintiff did not endorse as one of the reliefs he seeks, the relief of recovery of possession. At paragraphs 7 and 8 of the amended statement of claim the Plaintiff pleaded that:

“7. The Plaintiff avers that he has since purchasing the property in 2009, solely exercised rights of ownership over it without any interference from anybody”.

The Plaintiff avers that sometime in June 2012, whilst outside the jurisdiction of Ghana, it came to his notice through his agent that persons alleged to be acting on the instructions of the 1^st Defendant trespassed onto the land.”

In its statement of defence also filed on the 3^rd May 2018, the 2^nd Defendant pleaded in response at paragraph 4 that:

The 2^nd Defendant denies the averments contained in paragraphs 3, 4, 5, 6, 7 and 8 of the amended statement of claim dated 27^th April 2018 and shall put the Plaintiff to strict proof”

The above averments represent the state of the pleading immediately before the case went to trial and, by virtue of the denial by the 2^nd Defendant of the allegation of possession made by the Plaintiff herein, the burden rests on the Plaintiff to adduce the needed evidence to prove his claim on the preponderance of probabilities. See sections 14 and 17 of the Evidence Act, 1975, NRCD 323 and the case of Mondial Veneer (Gh) Ltd vs. Amuah Gyebu XV. [2011] SCGLR 1 466. The record of appeal contains two witness statements given by the Plaintiff. The first Witness Statement which can be found at page 63 volume 1 of the ROA was filed on the 23^rd December 2016 while the second witness statement filed on the 9^th November 2018 can be found at page 264 volume 1 of the record. It appears that the second witness statement is an amendment to the first witness statement; except that no statement appears on the second witness statement to show that it is an amendment to the first witness statement. This omission is contrary to the express provision in Order 16 rule 9 sub-rule 3 of the High Court (Civil Procedure) Rules 2004, CI.47 as amended. It contains fourteen paragraphs of evidence given by the Plaintiff. A close examination of the Plaintiff’s witness statement filed on the 9^th November 2018, reveals that it is only at paragraph 12 that the Plaintiff gave an inkling on the question of possession after the acquisition of the land in question. In that paragraph, the Plaintiff testified that:

“12. I immediately went into possession of the land and exercised rights of ownership over it by instructing my agent to demolish an old two-bedroom house which was on the land and had footings made by my architect.”

Under cross examination, the Plaintiff was asked regarding the allegation of possession that:

Do you have anything before the court to confirm your right to exercise ownership and you caused your architect to construct the footings.
I was dealing with the architect to do the footings on the land in preparation to utilizing the land.

The Plaintiff caused one Nana Ama Ampomah to file a witness statement and testify on his behalf. The said statement can be found at page 58 of the record. It appears that another witness statement was filed by the same person. In this second witness statement, the witness testified at paragraph 5 thereof that after the Plaintiff had purchased the land in dispute, the witness was instructed by the Plaintiff to demolish an old two-bedroom outhouse which was on the land and he had footings made by his architect on his behalf. The record shows that during cross examination, the testimony given by PW1 at paragraph 5 of her witness statement was challenged as not being supported by any evidence. The witness only disagreed with the suggestion but thereafter, no concrete evidence was provided by the witness or the Plaintiff. Counsel for the Appellant submits that this kind of testimony is capable of positive proof and that the allegation of the Plaintiff having gone into possession of the property in dispute after the alleged purchase, has not been positively proved as required by law. We agree with this submission by the lawyer for the Defendant/Appellant in that if there was a building on the land, at least a photograph of the said building could have been tendered in evidence; again, a photograph of the alleged demolishing of the said building could have been tendered in evidence as proof of the demolishing. Further, the architect who erected the footing could have been called to testify as to the work he did on the land by way of corroborating the testimonies of the Plaintiff. In the opinion of the court, the Plaintiff failed to prove that he took possession of the land in dispute after the purchase of the same, by not supporting his testimony with any concrete evidence of possession. We find that the Court of Appeal did not even discuss the issue of the possession of the land by the Plaintiff herein. The Court concentrated on the alleged possession by the 2^nd Defendant and went ahead to deprecate the manner by which the 2^nd Defendant exercised act of possession by building six houses on the land in question. Consequently, while we dismiss the first ground of appeal herein, we hold that sufficient evidence was not adduced to prove the allegation that the Plaintiff went into possession of the property after he had purchased it from his grantor.

[4.4]. Under ground (b) of the grounds of appeal, Counsel for the Defendants/Appellants criticizes the judgment of the Court of Appeal for rejecting the contract of sale executed in favour of the 1^st Defendant by his grantor, because of the absence of a site plan. Against this ground of appeal, the Plaintiff/Respondent has argued that “no right whatsoever passed under exhibit 1 and exhibit 2 and by extension under exhibit 2D1, the contract of sale” The Plaintiff relies on the maxim nemo dat quod non habet and submits that the 1^st Appellant could not transfer title to the 2^nd Appellant because he has at no point in time ever held a valid title or interest in the land in question. This ground of appeal is problematic; in that, it does not arise from the pleadings filed by the parties. And, neither does it arise from the witness statements of the parties nor the judgment of the Court of Appeal. There is no where in the statement of defence of the 1^st Defendant that the 1^st Defendant pleaded that a contract of sale was executed in his favour by his grantor. Again, the 1^st Defendant never gave evidence, in his Witness statement filed on the 18^th October 2018 [See page 27 volume 2 of ROA] to the effect that his grantor ever executed any contract of sale in his 1^st Defendant’s favour. Technically therefore, this ground of appeal does not arise from the record of appeal and deserves to be dismissed.

On the contrary, it is the 2^nd Defendant/Appellant who pleaded at paragraph 19 of its statement of defence [found at page 174 volume one] that its managing director agreed to purchase the land from the 1^st defendant for the sum of USD600,000.00 as a result of which he entered into a contract of sale with the 1^st Defendant. In the judgment, their lordships at the Court of Appeal remarked that “what was procured by the 2^nd defendant per the contract of sale is unclear because there is no site plan attached to it, but an oblique reference to ‘Parcel No. 11, Block 3 section 003 situate at airport west on registry map 003/003/1998 … on plan No. 16/2015.’” What the Court of Appeal did was to compare the description of the land on the land certificate tendered by the 2^nd Defendant with the description stated on the Indenture or the Deed of Assignment tendered by the 2^nd Defendant and came out with the conclusion that since the land certificate derives from the Deed of Assignment, the description of the land on the two documents must be the same. The Court of Appeal, therefore, concluded that both the Contract of Sale and the Deed of Assignment had no site plans attached to them and therefore it made the identity of the land claimed by the 2^nd Defendant herein, at least on paper, very difficult against the backdrop that the 2^nd Defendant could not tender in evidence the Deed of Conveyance between their grantor, the 1^st Defendant herein and his [1^st Defendant’s] grantor Chantian Thia. For now, as already pointed out, this Court finds no value in the instant ground of appeal and we proceed therefore to dismiss same.

[5.0]. From the amended statement of claim filed on behalf of the Plaintiff on the 27^th April 2018 following the joinder of the 2^nd Defendant herein, especially paragraphs 4 and 5 thereof, the Plaintiff claims that he purchased the land in dispute from Chen Jian Hua who executed a Deed of Indenture in favour of the Plaintiff. The Plaintiff went ahead to plead that his grantor had earlier acquired the property from one Stephen Hudson Annancy who had also, earlier, acquired the very property from the Government of Ghana. The Plaintiff contended that various searches which he conducted before the acquisition of the property showed no contrary or adverse interest in the property but were confirmatory of the root of title of his grantor and the persons who had earlier had title conveyed to them as pleaded. [See the amended statement of claim at page 168 volume 1 of the ROA]. True to his pleadings, the Plaintiff, at the trial, tendered, as part of his evidence in chief by his witness statement, a Deed of Lease, exhibit A herein, [See page 268 volume 1 ROA] between the Government of Ghana and Stephen Hudson Annancy wherein the property was leased to the said Stephen Hudson Annancy for a term of ninety-nine years. In the said lease, the property was described as:

Thereafter, on the 17^th May 2007, the said Stephen Hudson Annancy also prepared a sublease, exhibit B herein, of the very same property in favour of Chen Jian Hua. This sublease repeated the description of the property as stated in the head lease to Stephen Hudson Annancy as the subject matter of the sublease to Chen Jian Hua. Further, the consent of the Chairman of the Lands Commission was obtained and included in exhibit B. [See page 281 and 284 volume 1 ROA]. The Plaintiff also tendered in evidence a Deed of Assignment, exhibit E herein, made by Chen Jian Hua on the 9^th day of June 2009, in favour of Abraham Anane Adjei, the within named Plaintiff. Again, in exhibit E which can be found at page 295 volume 1 ROA, the description of the land as contained in the head lease was recited as the very land assigned to the Plaintiff in this suit.

[5.1]. At paragraph 5 of his amended statement of defence filed on the 24^th day of May 2018, [See page 20 volume 2 ROA] the 1^st Defendant traces his root of title to the disputed land. He pleaded that the land was granted to him on the 9^th May 2009 by Chantian Thia. The 1^st Defendant also pleaded that he was issued with a land title certificate covering the land on the 15^th October 2015. At paragraph 11 of the amended statement of defence, the 1^st Defendant pleaded that he conveyed all his interest in the land to Akanni Logistics Limited, the 2^nd Defendant herein, through its managing director, Alhaji Taofeek Sulley. The 1^st defendant tendered, as part of his witness statement, a Deed of Assignment, [labelled exhibit AMB], from Chantian Thia in favour of the 1^st Defendant wherein he claims a parcel of land was assigned to him. According to the recitals in exhibit AMB, a Deed of a sublease dated 17^th May 2007 had been made between one Stephen Hudson Annang in favour of Chantian Thia in respect of the property therein conveyed. The 1^st Defendant also tendered in evidence a land certificate, marked exhibit AMB1, in respect of the property therein described. This land certificate is dated 15^th October 2015. It must be placed on record that the writ in this matter was sued out on the 13^th February 2013; implying that the land certificate was obtained during the pendency of this trial.

[5.2]. The 2^nd Defendant pleads in its statement of defence that the 1^st defendant is its grantor. The 2^nd Defendant pleaded also that it initially entered into a contract of sale with the 1^st Defendant and after the 2^nd Defendant had paid a debt owed by the 1^st Defendant to Dalex Finance and Leasing Company Limited, a title document on the land was released to the 2^nd Defendant. The title document was averred to be a Land Title Certificate numbered GA48518 issued on the 15^th October 2015. The 2^nd Defendant pleaded that the purchase price of the land was agreed at USD600,000.00 with the 1^st Defendant and it was to be paid partly by cash and partly by the release of a car, a Land Cruiser to the 1^st Defendant. At the trial, the Contract of Sale dated 5^th January 2016 was admitted and marked exhibit 2D1 whiles the land certificate was also admitted and marked exhibit 2D2.

[5.3]. It appears from the record of appeal that the 1^st Defendant did not give evidence at the trial. The managing director of the 2^nd Defendant gave evidence as shown at page 200 volume 2 of the record of appeal. The 2^nd Defendant admitted, during cross examination, that the only document he received in respect of the land, from Dalex Finance and Leasing Company, was the land certificate exhibit 2D2. No Deed of Conveyance was executed by the 1^st Defendant, the alleged grantor, in favour of the 2^nd Defendant. The said exhibit 2D2, which is in the name of the 1^st Defendant, is a land title certificate whose origin is unknown. No Deed of Conveyance of the said land was tendered in evidence to show that the alleged Chantian Thia, the grantor of the 1^st Defendant, ever conveyed any such parcel of land to the 1^st Defendant. Again, no document was tendered in evidence to show how the said Chantian Thia came by the land in question. Besides, the evidence shows, without any shred of doubt, that the said land title certificate was procured during the pendency of this action. It is not surprising therefore that the Court of Appeal held that the land title certificate was procured by fraud.

[5.4]. The truth is that the Defendants provided no tangible evidence of the history with respect to how the land in question was, allegedly, acquired by them. The 1^st Defendant failed to give credible evidence on his root of title. The 2^nd Defendant equally failed to give credible evidence on his root of title. There is no evidence of any valid conveyance of the land by the grantor of the 1^st Defendant, Chantian Thia to the 1^st Defendant. Again, there is no evidence of any valid conveyance of the land in dispute by the 1^st Defendant to the 2^nd Defendant. Before a land title certificate could be issued with respect to any parcel of land, there must first be a conveyance of the land in question by the owner of the said land to the person in whose favour the land certificate was issued. Counsel for the Defendants/Appellants has chastised the Court of Appeal on its finding that the land certificate in the name of the 1^st Defendant, which was tendered by the 2^nd Defendant, was procured by fraud and hence ground (d) of the grounds of appeal states that: “(d) the Court of Appeal erred in holding that the 1^st Appellant fraudulently procured his land certificate”.

The said land certificate is found at page 88 volume 3 of the record of appeal. It was issued, allegedly, by the Land Title Registry on the 15^th October 2015 in favour of the 1^st Defendant. It must be pointed out that the writ of summons in the instant matter was issued by the Plaintiff/Respondent on the 22^nd day of February 2013. It implies therefore that the alleged land certificate, exhibit 2D2, was issued at a time that the suit was pending before the Court. An honest purchaser will not procure a land title certificate in respect of a parcel of land which is the subject matter of litigation whiles the suit was pending in court. An honest purchaser who has no intention to deceive the court and also practice fraud on his opponent will not procure a land certificate or a lease in respect of a parcel of land which is the subject matter of litigation secretly and at the blind side, not only of the court but also of his opponent in litigation. And so, the Court of Appeal was right when it referred and relied on the decision of this court in Chellaram & Sons (Ghana) Ltd. vs. Halabi [1963] 1 GLR 214 to the effect that:

“A voluntary conveyance pendente lite has on it the badge of fraud; secrecy is always evidence of fraud, though it is not in itself conclusive; and a false statement of a material fact in a conveyance for valuable consideration showing part of the consideration for the transfer is also some evidence of fraud”.

This court again pointed out in Brown vs. Quarshigah [2003-2004] SCGLR 930, that:

“Procuring a lease and a subsequent land certificate in circumstances when the Plaintiff, on the evidence, knew or ought to have known that the land had been previously granted to a prior incumbrancer, is tantamount to fraud.”

This court, therefore, agrees with the finding of the Court of Appeal that the land certificate, allegedly, procured by the 1^st Defendant herein was truly procured by fraud. The proof of the fraud, contrary to the submission of counsel, was embedded in the document, the land certificate itself, by virtue of the manner and the date on which it was procured and no further proof was required in order to cancel the fraudulent certificate.

[5.5]. The law in force at the time that the land certificate was issued in favour of the 1^st Defendant, was the Land Title Registration Act, 1986, PNDCL 152. My lords, section 12 of PNDCL 152 provided that:

“12. Staying of land suits

(1) An action concerning land or an interest in land in a registration district shall not be commenced in a Court until the procedures for settling disputes under this Act have been exhausted.

(2) Where at the time of the publication of a notice under section 11 an action or proceeding concerning land or an interest in land in a registration district referred to in the notice is pending in a Court, a claim under this Act in respect of the same land or interest shall be noted by the land registrar but a further action shall not be taken on the claim until the matter is determined by the Court”.

At the time of the processes leading to the issuance of the land certificate, as stated above, this suit was already pending. A duty was therefore cast on the 1^st Defendant to inform the Registrar of the pendency of this action in order for the Registrar to hold the process in abeyance till the completion of the hearing of this case. The 1^st Defendant tactically failed to do so in order that he may gain an undue advantage over the Plaintiff. In the Registered Trustees of the Catholic Church vs. Buildaf Ltd Mr. Abu and Mohammed Asamoa – Kwaning [ [2015] DLSC3234, this Court ruled with respect to the provision in section 12 of PNDCL 152 that:

“This provision imposes a duty of full and complete disclosure of the pendency of litigation affecting the land that is sought to be registered. The policy decision behind this provision is clear in order to avoid conflicting decisions by two State institutions, a decision to register the land in the name of Mr. X by the Land Title Registry and a contrary decision by the Court that the same land belongs to Mr. Y. Thus, every person, including the applicant for registration, with knowledge of the pendency of the suit must disclose this fact to the Land Title Registrar. The 2nd Appellant who stood in for the 3rd Appellant never disclosed the pendency of the two suits to the Land Registrar. And it was clear from his conduct since 1992 that the 2nd Appellant was determined to take hold of this land at any cost.”

“It was the failure of the Appellants to disclose the pendency of the two actions at the High Court which enabled the certificate to be issued by the Registrar. It was a deliberate act. That was in breach of the law. The land in dispute does not belong to the Appellants’ grantors. The Appellants were not in adverse possession too, for their stay has been challenged all the way by the Respondents. The trial court’s decision that the certificate-exhibit 4- be cancelled which was endorsed by the Court of Appeal was thus justified.”

The Court of Appeal, in the instant matter, was therefore right in setting aside and or cancelling the said land certificate and this court affirms the judgment of the Court of Appeal in this regard.

[5.6]. Even if it is argued that under the Land Title Registration law, it is the registration that confers title on the proprietor and not the underlying documents of evidence of a grant, for which reason one may quote section 18(1) of PNDCL 152 in support, the implication in relation to the instant matter is that the person whose name appears on the register, that is, the 1^st Defendant herein, as far as the Land Certificate, exhibit 2D2 is concerned, is the person whose title is presumably indefeasible. This is because it is the name of the 1^st Defendant, Masaud Abubakar that appears on the Land Certificate. Indeed, section 18(1) of PNDCL 152 provides that:

“18. Conclusiveness of the register

The land register is conclusive evidence of the title of the proprietor of the land or interest in land appearing on the register”

‘Proprietor’ has been assigned a specific meaning under the Act. Section 139 states that ‘proprietor’ means in relation to a land or an interest in land, the person named in the land register as the proprietor of the land or interest; and the donee of a power to appoint or dispose of the land or the interest”. It follows therefore that section 18(1) of PNDCL 152 does not contemplate the 2^nd Defendant herein. At any rate, when section 18(1) speaks of the “land register being conclusive evidence of the title of the proprietor”, that does not mean that other primary documents to the acquisition of land are unimportant or unnecessary. My understanding is that where a person legally acquires land without any fraud or illegality in the process, then, the fact that his interest has been validly registered under PNDCL 152 and a Land Title Certificate issued therefore, makes the Title Certificate conclusive evidence of the title of the proprietor. Otherwise, the mere production of the Title Certificate, irrespective of any fraud indulged in by the proprietor in the process of the acquisition, guarantees the proprietor title to the parcel of land in question. That is the reason why the Court have power, under the Act, to cancel the Land Certificate if the Court determines that the Certificate has been acquired fraudulently or by mistake.

Again section 79 states that:

“79. Transfers

(1) A proprietor may, by an instrument in the prescribed form, transfer the land or the interest in land of the proprietor to a person with or without consideration.

(2) The transfer shall be effected by registration of the transferee as proprietor of the land or the interest and the instrument shall be filed”.

By this provision, it may also be argued that a proprietor of land under PNDCL 152 need not transfer land by the medium of a traditional conveyance for example by a title deed. The 2nd Defendant herein, did not adduce any evidence at all to show that the 1st Defendant ‘by an instrument in the prescribed form’ transferred his (1st Defendant’s) interest in the land in dispute to the 2nd Defendant. There is likewise no evidence on record to show that any such transfer has been effected by the registration of the 2nd Defendant as the proprietor of the land or the interest. Further, there is no evidence on record to the effect that any instrument transferring the land in dispute in the name of the 2nd Defendant has been filed as required by the provisions of section 79 of PNDCL 152.

Section 43 of PNDCL 152 also states that:

“43. Indefeasibility of registration

(1) Subject to subsections (2), (3) and (4) of this section and to section 48, the rights of a registered proprietor of land whether acquired on first registration or acquired subsequently for valuable consideration or by an order of a Court, are indefeasible and shall be held by the proprietor together with the privileges and appurtenances attaching to the land free from any other interests and claims”.

The 1^st Defendant in this matter failed to give evidence of the ‘valuable consideration’ which he gave when he allegedly acquired the land in dispute and so, the 1st Defendant cannot bring himself under the provisions of section 43(1) of PNDCL 152. Further, indefeasibility of title cannot lawfully be touted in favour of the 1st Defendant herein. This is so because, there is sufficient evidence on record that the so-called land certificate issued to the 1st Defendant, was obtained by fraud. This has been adequately discussed hereinbefore. In Brown vs Quarshigah (supra), this Court had occasion to review the provisions of section 43 of PNDCL 152 wherein the court made pronouncement to the effect that:

“Under section 43(1)-(4) and 48 of the Land Title Registration Law, 1986 (PNDCL 152), the rights of a registered proprietor of land acquired for valuable consideration or by an order of a court shall be indefeasible and shall be held by the proprietor together with all privileges and appurtenances attaching thereto free from all other interests and claims whatsoever. An indefeasible title meant a complete answer to all adverse claims on mere production of the certificate. However, an indefeasible title was subject to overriding interests such as stated in section 46(1)(f) of the Law, namely “rights, whether acquired by customary law or others, of every person in actual occupation of the land save where enquiry is made of such person and the rights are not disclosed.” On the evidence of the instant case, the plaintiff did not give the defendant notice of the registration of his lease in respect of the disputed land. Consequently, the plaintiff’s lease registered under PNDCL 152 was subject to the defendant’s right of occupation of the disputed land”.

In the words of Dr. Twum JSC,

“there appears to be a mistaken feeling abroad that in land matters, once a party gets his title deeds registered on the Land Title Register, his title is indefeasible. That, of course, is not true. Fraud vitiates everything. The defendant’s evidence has shown clearly that he had been on the disputed land for a very long time. But the plaintiff sought in concert with the then Chief of Sempe, to take the land from him. The defendant’s land was not vacant land. It was part of the fraud to regard it as such by the plaintiff”.

According to Professor Kludze JSC,

“the provision in section 46(1)(f) of PNDCL 152 means that where the land had previously been granted to a purchaser under the customary law, and a subsequent grant is purportedly made of the same land to another person, the subsequent grantee cannot claim priority over the earlier grantee by reason only that he registered his grant first. The legislature did not intend that title registration should become a machinery for the defeat of titles otherwise valid at customary law. To legislate otherwise would unsettle many existing titles at customary law”.

Indeed, this court held also that:

“Under section 122(1) of the Land Title Registration Law, 1986 (PNDCL 152), a court might, in its discretion, order cancellation of a land certificate issued pursuant to the Law on grounds of fraud or mistake materially affecting the interest of the proprietor. And by fraud was meant dishonesty. However, under section 122(2) of PNDCL 152, the register “shall not be rectified … unless such proprietor had knowledge of the omission, fraud or mistake in consequence of which the rectification is sought or had himself caused such omission, fraud or mistake or substantially contributed to it by his act, neglect or default.

In the instant case, the requisite fraud had been established by the defendant to enable the court to order rectification of the Land Register by removing the plaintiff’s lease from it”.

It therefore does not lie within the rights of the Defendants, in the present matter, to say that just because the 1^st Defendant had been issued a land certificate, he thereby acquired an indefeasible title to the land in dispute and can, therefore, transfer good title to the land to the 2^nd Defendant, notwithstanding the clear evidence that the acquisition thereof was procured by fraud.

In my view, the provisions of section 59 of the PNDCL 152 does not avail the 2^nd Defendant either. That section states that:

“59. Protection of persons dealing with registered land

Where valuable consideration is given by a person in respect of a disposition, the rights accruing to that person through the disposition shall not be affected by the omission

(a) to inquire into or ascertain the circumstances in which the consideration for a previous registered transaction was paid or the manner in which that consideration or part of the consideration was utilised;

(b) to search a register or record kept under the Land Registry Act, 1962 (Act 122).

The 2^nd Defendant has not shown and no evidence has been given that a disposition has been made in favour of the 2nd Defendant as required by section 79 of the law and equally, there is no credible evidence on record that the 2nd Defendant provided any valuable consideration to the 1st Defendant for any alleged transfer of the land in his favour.

In the alleged contract of sale executed between the parties, exhibit 2D1 which can be found at page 84 vol.3 of the record of appeal, the parties stated, among others, that:

“The vendor hereby agrees to sell to the purchaser and the purchaser agrees to purchase from the vendor all the vendor’s interest in the land for the sum of USD600,000.00 free from all encumbrances and upon the terms and conditions of this agreement”

As already pointed out, the 2nd Defendant failed to give evidence of the provision of any valuable consideration provided by him pursuant to the above agreement or at all. Hence, the 2nd Defendant cannot lawfully pray in his aid the provisions of section 59 of PNDCL 152.

[5.7]. My lords, the Plaintiff, on the contrary, was able to testify and give evidence which traced the root of the Plaintiff’s title to the land in dispute; first, the grant to Stephen Hudson Annancy by the Government of Ghana in about 1974, secondly, the grant by Stephen Hudson Annancy in 2007 to Chen Jian Hua and finally from Chen Jian Hua to the Plaintiff herein. It is important to recognize that all these grants were supported by Deeds of Conveyances which were all tendered in evidence by the Plaintiff herein unlike the Defendants. Therefore, on the preponderance of probabilities, it is the view of this court that the Plaintiff has succeeded in establishing a better claim of title to the land in dispute than the Defendants herein. As explained by this court in Bisi and Others v. Tabiri alias Asare [1987-88] 1 GLR 360

“The standard of proof required of a plaintiff in a civil action was to lead such evidence as would tilt in his favour the balance of probabilities on the particular issue. The demand for strict proof of pleadings had however never been taken to call for an inflexible proof either beyond reasonable doubt or with mathematical exactitude or with such precision as would fit a jig-saw puzzle. Preponderance of evidence became the trier’s belief in the preponderance of probability. But “probability” denoted an element of doubt or uncertainty and recognised that where there were two choices it was sufficient if the choice selected was more probable than the choice rejected”.

Ultimately, the process of the acquisition of the disputed land by the Plaintiff as shown by all the documents tendered by the Plaintiff is more credible and valid. The same cannot, legally, be said about the alleged acquisition by the Defendants. The 1^st Defendant has pleaded at paragraph 5 of his amended statement of defence at page 180 volume 1 of the ROA that he acquired the land from Chantian Thia on 4^th May 2009. No documentary evidence was provided by the 1^st Defendant to prove this allegation. The 1^st defendant says he obtained a valid title to the land from his grantor yet, no such valid title was given in evidence by him. How the 1^st Defendant got the Lands Commission to issue a Land Certificate, exhibit 2D2, to him is shrouded in mystery. That notwithstanding, the 1^st Defendant failed completely to appear in court and give evidence about the mode and manner he acquired the land in dispute. The 1^st Defendant failed to produce the relevant and necessary evidence to prove his claim as pleaded by him. The case of the 2^nd Defendant is even worse. The 2^nd Defendant could not tender a single credible land document which bear his name. There is no evidence whatsoever that the land in question has been validly transferred in anyway and by any mode to the 2^nd Defendant. The 2^nd Defendant says the land in question was transferred to him by the 1^st Defendant; yet, the 2^nd Defendant failed to tender in evidence the said Deed of Conveyance. The Only land related document tendered by the 2^nd Defendant is the land title certificate, allegedly, obtained by the 1^st Defendant during the pendency of this case. Hence, the evidence adduced by the 2^nd Defendant with respect to the acquisition of the land in dispute is very far from credible. In this regard therefore, this court agrees with the Court of Appeal, when their lordships stated that:

“It is also worthy of note that the Plaintiff has put before the Court evidence of every grant, including that of the Government of Ghana to Stephen Hudson Annancy then to Chen Jian Hua, and then finally to the Plaintiff.

On the contrary, in the case of the Defendants, there is an oblique reference to the land having belonged to a certain “Stephen Hudson Annang”, 1^st Defendant and finally to the 2^nd Defendant. Somehow, there is a dearth of documents evidencing the grant to Stephen |Hudson Annang, and then to Chantian Thia”.

At page 162 volume 4 their lordships continued that

“It is clear from the evidence that the Defendants woefully failed to produce evidence regarding their root of title and entitlement to the land in dispute.

The reference to Stephen Hudson Annang was at best a red herring. It was meant to cause confusion by assuming that Stephen Hudson Annang was the same as Stephen Hudson Annancy, the true original grantee of the Government of Ghana of the land. The same can be said for the person named as Chantian Thia.

It has already been thoroughly discussed supra that there is the need for a party who claims land such as the parties to this suit are doing, to prove their respective root of title.

After all, the principle of law has always been clear that where the title being claimed is derivative, the claimant ought to demonstrate that the predecessor in-title held a valid title, for, if the foundation is tainted the superstructure was equally tainted.”

This court is therefore satisfied that the Plaintiff/Respondent herein has established a better claim to title, on the balance of probabilities, to the land in question compared with the Defendants/Appellants who failed to put forth any credible evidence as to their entitlement to the land in dispute. This court will therefore dismiss grounds (d), (f) and (g) of the grounds of appeal.

[6.0]. My lords, grounds (c) and (e) of the grounds of appeal which are discussed together are to the effect that: “(c) The holding of the Court of Appeal that the 2^nd Appellant knowingly continued to develop the land pendente lite is not supported by the evidence on record and (e) The Court erred in fact and in law in holding that the 2^nd Appellant was not a bona fide purchaser of the disputed land”.

Counsel for the Defendants/Appellants submitted that prior to acquiring the land, the managing director of the 2^nd Appellant investigated the title of his grantor, the 1^st Defendant and found that the 1^st Defendant had a land title certificate on the land. Thereafter, counsel submitted, the 2^nd Defendant proceeded to pay the agreed consideration. According to counsel, the 2^nd Defendant had no notice that the land in question was the subject of litigation. Counsel then submitted that ‘the 2^nd Defendant/Appellant was a bona fide purchaser for value without notice of any prior adverse interest and that the Court of Appeal fell into grievous error for holding otherwise’.

[6.1]. The response of Counsel for the Plaintiff/Respondent to the submission by Counsel for the Defendants/Appellants is best quoted below. In his statement of case, Counsel stated, among others, that:

“14.8 For clarity, we highlight the conducts of the 2^nd Appellant and other relevant considerations below:

a) the 2^nd Appellant did not investigate the root of title of his vendor, the 1^st Appellant or at the very least did not examine same sufficiently enough to realize the glaring evidence of Respondent’s possession and root of title.
b) The 2^nd Appellant did not tender into evidence any Report of a Search conducted at the Lands Commission to satisfy itself that the 1^st Appellant had valid title to the land.
c) Besides, the representative of the 2^nd Appellant merely averring that he visited the land prior to the alleged purchase from the 1^st Appellant, no further evidence was adduced in support of due diligence and neither was there any corroboration of this.
d) The 2^nd Appellant relied on the Land Certificate of the 1^st Appellant which Certificate was procured wrongly and during the pendency of the suit.
e) By applying the principle of nemo dat quod non habet, the 2^nd Defendant did not obtain a legal estate.
f) Save for the Contract of sale, no Deed of Conveyance was executed between the 1^st Appellant and the 2^nd
g) No receipts or other evidence of payment was tendered by the 2^nd Appellant to demonstrate that it gave valuable consideration for the land.
h) The 2^nd Appellant by virtue of its status as a purported grantee of the 1^st Appellant was bound by the Order for interlocutory Injunction. i.e. Exhibit 2D4.
i) In spite of the 2^nd Appellant confirming that the Order for Injunction (Exhibit 2D4) was served on it, it continued construction activities on the land. The 2^nd Appellant continued to engage in construction speedily, upon being fixed with notice of the pendency of the instant suit and the challenge against the purported interest/title of his grantor
j) The 2^nd Defendant even procured a Valuation Report i.e. Exhibit 2D3, dated 22^nd November 2017 in contravention of the Order for Injunction which restrained the 1^st Appellant and his grantees from intermeddling with the land in dispute in any way pending the final determination of the suit.”

[6.2]. In Hydrafoam Estates (Gh) Ltd vs. Owusu (per lawful attorney) Okine & Others [2011] 2 SCGLR 1117, this court held that:

“Where a party had put up the plea of bona fide purchaser without notice of any adverse title, the onus would squarely be on that party who had pleaded the same. Since the plea was to be considered as an absolute, unqualified and unanswerable defence, if upheld by a court of law, the law would require that evidence in support of the plea must satisfy the court”.

My lords, it is not just any evidence that the court demands in proof of the equitable defence of bona fide purchaser for value without notice, but the kind of evidence that shows that the party relying on the plea acted innocently and in good faith. Thus, for a party to successfully invoke the doctrine, it must be shown that the party acted in good faith by the way and manner in which he acquired the property in dispute. Thus, in Snell’s Equity, (14^th edition), Sweet & Maxwell, the learned authors state at paragraphs 4-021 to 4-027, among others that:

“The formulation of the rule suggests that there is a distinct requirement that the purchaser is in good faith. Indeed, it has been said that it is still necessary to show good faith even if the absence of notice is proved. [See Midland Bank Trust Co. Ltd. vs. Green [1981] AC 513]. However, in view of the development of the doctrine of notice it is difficult to imagine a case in which the purchaser does not have notice and yet is not acting in good faith.

A purchaser is a person who acquires an interest in property by grant rather than operation of law. Thus, it does not include a squatter, a trustee in bankruptcy or an execution creditor.

The purchaser must have given some value in the form of executed consideration. A promise to perform will only count as value to the extent that the purchaser has actually acted on his promise. A volunteer does not become a purchaser for value merely because he undertakes to use the property which has been given to him in a particular way. Although it needs not be shown that the consideration was adequate it seems that a nominal consideration is not sufficient. The satisfaction of an existing debt is sufficient value to support the defense as is the promise of marriage.

The purchaser must generally have obtained the legal interest in the property. In the case of chattels this would be the right of legal ownership, and in case of choses in action the right to sue at law on the claim. The purchaser who takes the legal interest will be protected by the doctrine, even if there is some defect in his title.

The purchaser must have had no notice of the equitable interest at the time when he gave his consideration for the conveyance. Thus, if notice was received before all the money was paid, even after the conveyance was executed, the purchaser remained subject to the equitable interest. Also, if he received notice of a prior equitable interest after the money was paid but before the legal estate was vested in him, he remained subject to the equitable interest.”

In Halsbury’s Laws of England (5^th edition), volume 47, the learned authors write at page 108 paragraph 119 that:

“The plea of purchase for value without notice is looked upon with favour in equity. It is available to a purchaser who has obtained the legal estate, and will usually give him priority over equitable claims which rank before him in point of time; and it is also available, without the legal estate, against equities as distinguished from equitable interests.

The plea of purchase for value without notice was originally available against both equitable and legal claims, but it came to be restricted to cases where the defendant himself had the legal estate, or where the legal owner was suing under the auxiliary jurisdiction in equity, to obtain assistance, such as discovery in his action at law. Hence in later times the plea was admitted neither against an equitable claimant nor against a legal owner who sued on his legal title under the concurrent jurisdiction in equity, or who sued in equity for an equitable remedy, such as foreclosure, incident to his legal title.

In determining whether a person is a purchaser for value the common law rule that the court does not inquire into the adequacy of consideration is not applicable. The concept of ‘purchaser for value’ is based on equity which looks at substance not forms.”

[7.0]. My lords, it is sad commentary to state that the 2^nd Defendant/Appellant herein could not tender in evidence any document that shows that he paid the amount of USD 600,000.00 which he claims to have paid to the 1^st Defendant as consideration for the land in dispute. No such document was tendered in evidence and none exists. Again, the 2^nd Defendant failed to tender in evidence any document which shows that he transferred any car to the 1^st Defendant as part of the payment of the consideration of USD600,000.00 which was allegedly agreed between him and the 1^st Defendant as part of the payment of the alleged cost of the land he allegedly acquired from the 1^st Defendant. The payment expected of the 2^nd Defendant, is the value which the law expects the 2^nd Defendant to have made in order to qualify him to come under the principle of bona fide purchaser for value without notice. Further to the above, the 2^nd Defendant failed to tender in evidence any Deed of Conveyance of the property in dispute by the 1^st Defendant to the 2^nd Defendant herein. Again, this is the legal estate which the equitable principle expects the 2^nd Defendant to have acquired or obtained in order that he could take advantage of the principle of bona fide purchaser for value without notice. The fact that the 2^nd Defendant seeks from this Court, as part of his counterclaim, an “order that the 1^st Defendant conferred [sic] title on [sic] the land to the 2^nd Defendant” is a tacit admission by the 2^nd Defendant that the 1^st Defendant did not convey title [the legal estate] to the disputed property to the 2^nd Defendant. At any rate, this very relief endorsed in the counterclaim of the 2^nd Defendant is borne out of confusion and misunderstanding of the rules of Court. The whole of the 2^nd Defendant’s counterclaim is made against the Plaintiff herein and so the instant relief represents a misconception by Counsel who prepared the 2^nd Defendant’s Counterclaim. A party cannot within a counterclaim made specifically against a Plaintiff, seek relief against a fellow Defendant. The rules of Court make provision for such a relief to be sought specifically against a fellow Defendant such as the 1^st Defendant herein. Order 12 rule 5(1), (3) and (8) is quite explicit on this. It provides that:

“5. Counterclaim against additional parties

(1) Where a defendant who makes a counterclaim against the plaintiff alleges that any other person, whether a party to the action or not, is liable to the defendant together with the plaintiff in respect of the subject matter of the counterclaim; or claims against such other person any relief relating to or connected with the original subject matter of the action, the defendant may join that other person as a party against whom the counterclaim is made.

(3) Where a copy of the counterclaim is to be served on a person who is already a party to the action, the defendant shall serve it within the period within which, under these Rules, the defendant shall serve on the plaintiff the defence to which the counterclaim is added.

(7) A person on whom a copy of a counterclaim is served under sub-rule (2) shall, if the person is not already a party to the action, become a party to it as from the time of service, with the same rights in respect of defence to the counterclaim and otherwise as if the person had been duly sued in the ordinary way by the person making the counterclaim.

(8) A person who is not already a party to the action shall file appearance to the counterclaim”.

The implication of the above stated rules, within the context of the instant matter, are that, the 2^nd Defendant was expected to prepare a separate counterclaim against the 1^st Defendant in which shall be stated the reliefs sought by the 2^nd Defendant against the 1^st Defendant. The said counterclaim shall then be served on the 1^st Defendant who shall then have a right to file a defence to that counterclaim as provided under Order 12 rule 5 sub-rule 7. The said defence to counterclaim shall be served within fourteen days as provided. In the instant matter, the 2^nd Defendant failed to file and serve on the 1^st Defendant a counterclaim as required by the rules. By not doing so, quite apart from the demerit of his claims, a grant of the reliefs he seeks in the counterclaim against the 1^st Defendant, as stated above, will surely breach the rules of natural justice; an order that this Court will not make.

[7.1]. Further, there is no evidence of any search conducted by the 2^nd Defendant as part of the alleged due diligence which he conducted before he, allegedly, acquired the property in dispute from the 1^st Defendant. The Plaintiff’s root of title is well documented at the Land Registry and if the 2^nd Defendant had indeed conducted any search, he would have found out that the land in dispute is well captured and documented in the name of the persons mentioned in the root of title of the Plaintiff herein. The case of Kwame Bonsu vs Kwame Kusi & Gifty Kusi Ampofowaa CIVIL APPEAL J4/14/2009 [2009 DLSC2499] offers a great insight into what was required of a person who intends to acquire property. This Court opined that:

“It is trite learning that any person desirous of acquiring property ought to properly investigate the root of title of his vendor. In this case there is no evidence of such prudent search conducted by the Defendants. In their own pleadings they asserted that they only inspected the title deeds of the Assignor coupled with the permit for construction and were satisfied. The record does not also show that they even sought professional advice before entering into the transaction. In my view, the steps they claim they took are not the adequate steps of a prudent purchaser of this particular property. Indeed, had they extended their search to the Lands Department, Kumasi, the statutory body that kept official records of lands in Kumasi, they would have known that the land was encumbered.

In Osumanu v Osumanu and Another [1995-96] 1 GLR 672-689 their Lordships held that

“Any intending purchaser of property is put on his inquiry to make such investigations as to title as would enable him to rely on the plea of bona fide purchaser for value without notice. If he failed to make such inquiries, he acted at his own peril if subsequent events disclosed that there was a valid challenge to the title he acquired.””

In this regard, this Court endorses the statement of the law in Appolo Cinemas Estates (Gh) Ltd vs. Chief Registrar of Lands and Others [2003-2005] 1 GLR 167 to the effect that:

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

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

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

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

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

[7.2]. As already stated above, the 2^nd Defendant herein failed to adduce credible evidence in order to bring itself within the defence of bona fide purchaser of the legal estate for value without notice. From the evidence on record, the 2^nd Defendant cannot avail itself of the defence.

[8.0]. This case presents a special claim by the 2^nd Defendant for consideration by this court. In his counterclaim, the 2^nd Defendant prays this Court “for an order directed at the 2^nd Defendant to pay to the Plaintiff a sum of money as compensation as provided for under the Land Development (Protection of Purchasers) Act, 1960 (Act 2) since greater hardship and injustice would be suffered by the 2^nd Defendant should the Plaintiff be adjudged owner of the land”, and also, for “an order directed at the 2^nd Defendant to pay the Plaintiff a reasonable amount for his cost incurred in the instant suit”.

[8.1]. Without attempting to delve into the relevant provisions of the Land Development (Protection of Purchasers) Act, 1960 (Act 2), this Court recognizes the possession of the 2^nd Defendant of the land in dispute and especially the fact that the 2^nd Defendant had built six (6) luxury apartments on the land. We also consider the fact that this Court is not only a Court of Law but also of Equity which demands that our decisions should always be informed by a duty to do justice to all parties appearing before this Court. For this reason and in view of the facts of this case and particularly the counterclaim of the 2^nd Defendant herein to be allowed to pay a reasonable sum for the land in dispute, we have considered all the circumstances of this case in making an order that protects the possession of the 2^nd defendant while upholding the title of the plaintiff. In the circumstances, we hereby order the 2^nd defendant to pay the Ghana Cedis equivalent of one million United States Dollars (USD1,000,000.00) to the Plaintiff. The amount shall be paid within three months of this judgment. If the amount is paid, the plaintiff shall transfer all his interest in the land in dispute to the 2^nd defendant and execute a deed of transfer of title to him. If the amount is not paid within the time stated in this judgment, the order for transfer of the interest to the 2^nd defendant shall abate, and the Plaintiff shall then be entitled to recovery of possession of the land in dispute and an order of perpetual injunction shall lie against the 1^st and 2^nd defendants. Consequently, the appeal is allowed in part.

(SGD.) S. K. A. ASIEDU