SINO AFRICA DEVPT CO LTD vs. ROYAL BELL INVESTMENTS LTD. & 6 ORS

IN THE SUPERIOR COURT OF JUDICATURE

IN THE SUPREME COURT

ACCRA – A.D.2026

CORAM: AMADU JSC (PRESIDING)

ASIEDU JSC

GAEWU JSC

BARTELS-KODWO JSC

AMALEBOBA JSC

CIVIL APPEAL

NO: J4/44/2025

3RD JUNE, 2026

SINO AFRICA DEVELOPMENT CO. …………….. PLAINTIFF/APPELLANT/

LIMITED APPELLANT

VRS

1. ROYAL BELL INVESTMENTS LTD.

2. TERRAFORM DEVELOPMENT LTD

3. NII ADZOGAH ANNANG LARYEA DEFENDANTS/

4. NII ODAIFIO MENSAH RESPONDENTS/

5. NII ASAFOATSE OKUM AGYEMANG II RESPONDENTS

6. RICHARD NII ALABI BORTEY

7. BENJAMIN BORKETEY BORTEYE SEYSEY

JUDGMENT

MAJORITY OPINION

BARTELS-KODWO JSC:

INTRODUCTION

(1) My Lords, this is an appeal against the judgment of the Court of Appeal dated the 27th March 2025. By that judgment, the Court of Appeal, by a majority, dismissed the appeal lodged by the Plaintiff/Appellant/Appellant (hereinafter “the Appellant”) and affirmed the judgment of the High Court, Land Division, Accra, which had entered judgment in favour of the Defendants/Respondents/Respondents (hereinafter “the Respondents”) on their counterclaim. Being dissatisfied with that decision, the Appellant has invoked the appellate jurisdiction of this Court.

(2) At the heart of this contest lies one question: as between two claimants who trace their root of title to one common grantor, the Nungua Stool, which of them obtained a grant capable of vesting a good title, having regard to the fact that for the greater part of the relevant period the land in dispute was vested in the Republic by compulsory acquisition? The answer to that question disposes of the larger part of this appeal.

BACKGROUND AND FACTS

(3) By an amended writ of summons and statement of claim issued out of the Registry of the High Court, Land Division, Accra, the Appellant claimed against the Respondents the following reliefs:

a) A declaration of title to all land more particularly described in the statement of claim;

b) Recovery of possession;

c) Perpetual injunction restraining the Defendants, their agents, privies, servants and any person(s) deriving any interest through them, from entering or dealing with the said land in any manner that interferes with the lawful possession and occupation of the plaintiff;

d) Damages for trespass;

e) Costs, inclusive of legal fees; and

f) Any other relief(s) which this Honourable Court deems fit or considers just.

(4) In paragraphs 23 and 24 of the Amended Statement of Claim, the Appellant described the parcels of land in question as follows:

“23. The land in dispute consists of all that piece of land known as site for Sino Africa Development Ltd, Borteman in the Tema Municipal Assembly in the Greater Accra Region of the Republic of Ghana boundary whereof commencing at a pillar marked GCGEP 11/38/4 which same pillar serves as a point of departure and runs on a bearing of 074’28’ for 2655.3 feet to which same pillar forms part of the boundary of the afore mentioned site whereof commencing at a pillar marked GCG EP1138 FIS 1 and thence on a bearing of 270’00’ for 588.9 feet to a pillar GCG EP11 38 FIS2 and thence on a bearing 000’00’ for 2206.9 feet to a pillar marked GCG EP11 38 FIS 3 and thence on a bearing 090’00’ for 125.0 feet to a pillar marked GCG EP11 38 SACL 1A and thence on a bearing 000’00’ for 627.7 feet to a pillar marked GCG EP11 38 SACL 1 and thence on a bearing of 000’00’ for 1174.5 feet to a pillar marked GCG EP11 38 SACL 2 and thence on a bearing of 092’55’ for 172.6 feet to a pillar marked GCSEP 11/54/3 and thence on a bearing of 76’40 for 1044.1 feet to pillar marked GCSEP 11/38/A5/2 and thence on a bearing of 173’53’ for 789.0 feet to a pillar marked GCGEP 11/38/A5/4 and thence on a bearing of 189’56’ for 824.3 feet to a pillar marked GCGEP 11/38/A5/5 and thence on a bearing of 106’21’ for 982.5 feet to a pillar marked GCGEP 11/38/A6/1 and thence on a bearing of 108’13’ for 1538.3 feet to a pillar marked GCGEP 11/38/A6/9 and thence on a bearing of 107’22’ for 1074.5 feet to a pillar marked GCGEP 11/38/A1/14B and thence on a bearing of 184’20’ for 129.7 feet to a pillar marked GCEEP 11/38/A1/13A and thence on a bearing of 249’17’ for 415.6 feet to a pillar marked GCEP 11/38/A1/13 and thence on a bearing of 247’18’ for 451.2 feet to a pillar marked GCEP 11/38/A1/12 and thence on a bearing of 247’46’ for 540.0 feet to a pillar marked GCGEP 11/38/A1/11 and thence on a bearing of 248’09’ for 591.0 feet to a pillar marked GCDEP 11/A1/9 and thence on a bearing of 248’18’ for 642.1 feet to a pillar marked GCGEP 11/38/A1/8 and thence on a bearing of 24818’ for 1178.0 feet to a pillar marked GCG EP 11/38/FIS/1 and thence on a bearing of 270’00’ for 779.63 feet to a pillar marked GCG EP/11/38/FIS/1 which marks the point of commencement of and thus containing an area of 294.520 acres or 119.192 Hectares.

24. Plaintiff will also seek judgment over all that piece and parcel of land known as site for Sino Africa Development Ltd, Borteman in the Tema Municipal Assembly in the Greater Accra Region of the Republic of Ghana boundary whereof commencing at a pillar marked GCG EP 11/38/4 which same pillar serves as a point of departure, containing an area of 34.357 Acres or 13.904 Hectares.”

(5) The Appellant, claiming to be a limited liability company incorporated under the laws of Ghana, pleaded that sometime in 1940 the Colonial Government of the Gold Coast compulsorily acquired from the Nungua Stool a large tract of land measuring some 2,570.05 acres and commonly known as “Nungua Farms” for animal husbandry and related purposes, the land in dispute forming part of that larger tract. The Appellant averred further that by a lease dated the 12th August 2010 the President of the Republic, acting through the Lands Commission, released approximately 976.466 acres of the acquired land to the Nungua Stool for a term of 99 years.

(6) The Appellant’s case was that, on or about the 16th August 2010, it acquired from the Nungua Stool, by two distinct subleases, parcels measuring 34.357 acres and 294.520 acres respectively (totalling 328.877 acres), for a term of 95 years, for the purpose of constructing affordable housing for public and civil servants. It pleaded that the parcels were vacant at the time of acquisition; that it entered into immediate possession, erected corner pillars, put up ten single-room structures in or about 2012 to demarcate the boundaries, constructed a perimeter wall in or about 2013, and sited its head office upon a portion of the land, exercising acts of ownership without let or hindrance. It complained that the 1st Respondent thereafter unlawfully entered upon the land and demolished part of the perimeter wall, and that the Respondents had evinced an intention to persist in interfering with its possession, hence this action.

(7) By their amended statement of defence the Respondents traversed the Appellant’s material averments. The parties are, however, ad idem on two cardinal matters: first, that the land in dispute forms part of a larger tract owned originally by the Nungua Stool; and secondly, that following the compulsory acquisition by the Government in March 1940, the Government, by the lease of August 2010, returned a portion of the land to the Stool.

(8) The Respondents averred that, notwithstanding the compulsory acquisition, subjects of the Nungua Stool and in particular members of the Bortey We Clan remained in occupation of the land, with their Borteyman village and cemetery thereon, and that their activities, including farming, continued after the acquisition. On the strength of that continued occupation, the Stool, between 1996 and 2000, granted leases to some of the Respondents and to the predecessors of others. The 3rd to 7th Respondents averred that they remained in occupation, with structures upon portions of the land, and that it was rather the Appellant which, in 2021, unlawfully erected a fence wall around the Respondents’ land.

(9) The Respondents pleaded further the litigation history of the land: the suit in 2007 by the Nii Abotsi Borlabi family against one Douglas Dewor Borketey (alias Nii Alabi Petempe) in Suit No. BL/332/2007; the agreement of 25th September 2008 by which the Government released some 976.446 acres to the Stool and its subjects; the confirmatory lease of the 12th August 2010; the assignment by the Nii Abotsi Borlabi family of its interest to the 1st Respondent, which obtained Land Title Certificate No. T.D 0558, Volume 019, Folio 58, dated the 10th June 2016; the subsequent assignment by the 1st Respondent to the 2nd Respondent; the suit in LD/1228/2017 (Royal Bell Investments Ltd v. Nii Abotsi Borlabi Borketey Nkpa) which terminated in a consent judgment; and the delivery of possession to the 1st Respondent by the Deputy Sheriff under a Certificate of Execution dated the 30th June 2021. The Respondents pleaded, in addition, that they had been in undisturbed possession for over twelve years, so that the Appellant’s action was statute-barred, and that a search by the 2nd Respondent had disclosed no interest of the Appellant.

(10) The Respondents, accordingly, counterclaimed against the Appellant for the following reliefs: a. A declaration of title in favour of the 2nd Defendant Company over all that piece or parcel of land with the structures thereon situate, lying and being at Borteyman, covered by Land Title Certificate No. T.D 0558, Volume 019, Folio 58, dated 10th June 2016, covering 29.791 acres, duly assigned to it by the 1st Defendant; b. A declaration of title in favour of the 3rd, 4th and 5th Defendants’ families to all the piece or parcel of land with the structures thereon situate at Borteyman, Nungua, Accra, containing an approximate area of 117.89 acres or 47.71 hectares; c. A declaration of title in favour of the 6th Defendants’ family to all that piece or parcel of land with the structures thereon situate at Borteyman, Nungua Farms, Nungua, Accra, containing an approximate area of 151.15 acres or 61.17 hectares; d. A declaration of title in favour of the 7th Defendants’ family to all that piece or parcel of land with the structures thereon situate at Borteyman, Nungua Farms, Nungua, Accra, in the Tema Metropolitan District of the Greater Accra Region, containing an approximate area of 35.04 acres or 14.18 hectares; e. A declaration that the purported grants of the land in dispute to the plaintiff company by the Nungua Stool after the earlier grants of same to the defendants, is void ab initio; f. An order annulling all the purported leases granted by the Nungua Stool to the plaintiff company; g. An order directed at the Lands Commission to expunge from its records any purported registration of the land in dispute in favour of the plaintiff company forthwith; h. Perpetual injunction restraining the plaintiff, its agents, assigns, servants, privies, workers, independent contractors or any person claiming through it from entering, developing, occupying or interfering in any manner with the land in dispute; i. Substantial damages; j. Punitive, exemplary and aggravated damages; k. Special damages; l. Cost of 2nd Defendant’s demolished wall of GH₵220,000.00; m. Expenditure incurred due to the order of injunction at the instance of the plaintiff company; n. Cost inclusive of legal fees; and o. Any other reliefs that may be just in the circumstance.

(11) The incontrovertible fact emerging from the record is that both the Appellant and the Respondents trace their root of title to one and the same grantor – the Nungua Stool. The dispute reduces itself, therefore, to the question of which of the competing parties obtained a valid grant from that common source, so as to be able to assert ownership of the disputed parcels.

THE JUDGMENT OF THE TRIAL HIGH COURT

(12) At the close of trial the learned trial Judge dismissed the Appellant’s claim and entered judgment for the Respondents on their counterclaim. Her reasoning may be summarised under three heads. First, she held that the Appellant’s subleases, Exhibits “A” and “B”, were unstamped and, on that account, inadmissible, thereby removing the very foundation of the Appellant’s title. Secondly, she held that the absence of site plans from those subleases, notwithstanding the recital therein that the land was “more particularly described and edged pink on the site plan attached”, rendered them undeserving of favourable consideration, relying upon Buildaf Ltd & Ors v. Catholic Church Writ No.J4/30/2014 dated 25th June 2015. Thirdly, and most significantly, she held that although the Stool had no title when it granted to the Respondents (the land being then vested in the Government), the doctrine of feeding the estoppel operated to perfect those earlier grants once the Government released the land to the Stool. On this latter point, the learned trial Judge expressed herself (at page 257 of Volume 3 of the Record of Appeal) thus:

“The position of the Plaintiff is that until the Government released the land back to the Nungua Stool, the Stool had no interest in it to have given out any interest to the 3rd to the 7th Defendants. That position is right in law and to the extent that the land continues to remain Government land, the Nungua Stool has no interest in the same land to divest to anyone. However, in this instant case, whiles the land was still vested in the Government, the Stool went ahead and granted interest in it to the 3rd to the 7th Defendants. Subsequent to these grants, the land reverted to the Stool. It would be unfair for the Stool to grant the same land to persons other than the ones it had granted the land to, prior to the land reverting to them …”

(13) Invoking section 26 of the Evidence Act, 1975 (NRCD 323) and the equitable doctrine articulated in Serwah v. Adjen II alias Nkrumah [1992] 1 GLR 296, the trial Judge held the earlier grants to the Respondents valid, and consequently held that no valid grant could later be made to the Appellant. She found the Respondents’ grants to be in conformity with Nungua custom, having been executed by the proper signatories as recognised in Republic v. Committee of Inquiry into Nungua Traditional Affairs, Ex parte Odai IV & Ors.(1996-97) SCGLR 401. She rejected the Appellant’s claim to have structures upon the land and found the Respondents’ occupation and control established. Being aggrieved, the Appellant appealed to the Court of Appeal.

THE JUDGMENT OF THE COURT OF APPEAL

(14) By a majority decision delivered on the 27th March 2025, the Court of Appeal affirmed the judgment of the trial High Court. The majority were satisfied that the findings of the trial Court were amply supported by the evidence, and that there was sufficient evidence of possession and control by the subjects of the Nungua Stool even after the compulsory acquisition, which undermined the Appellant’s claim of vacant possession and diligence.

(15) The majority recounted the act of possession evidenced by the 1996 grant to the Nii Abotsi Borlabi family (Exhibit 3) and the 2007 litigation, and the recitals of the Government’s lease, to conclude that the land was in the possession of the Stool’s subjects before any purported conveyance to the Appellant. On the central question, the majority endorsed the application of the doctrine of feeding the estoppel, concluding (at pages 128–129 of Volume 4) that:

“Thus, I am convinced that the respondents’ families’ grants from Nungua Stool evidenced in Exhibits 3, 25, 29 and 30 before the Government released the land to Nungua Stool and its subjects, created estoppel against the Nungua Stool from granting any parts of the subject matter of those earlier grants to other persons including the appellant after the release of the land. For those earlier grants before the release of the land which were otherwise imperfect and invalid because of lack of legal interest in the Nungua Stool at the time of the grant became perfect and valid as soon as the Government released those lands to the Nungua Stool.”

(16) The majority held, in addition, that the failure to stamp the Appellant’s principal documents, Exhibits A1 and B1, rendered them inadmissible; and that the absence of site plans was fatal, the Court invoking Buildaf Ltd & Ors v. Catholic Church (2017–2020) 1 SCGLR 1143 and Nortey (No. 2) v. African Institute of Journalism and Communication & Ors (No. 2) (2013–2014) 1 SCGLR 703, and concluding (at page 142, Volume 4) that:

“It is also the law that an indenture without a site plan signed by the Director of Surveys or his authorized representative is invalid because it is in breach of Regulation 34(1) of the Survey (Supervision and Approval of Plans) Regulations, 1988, (LI. 1444).”

(17) In the concurring opinion it was added (at page 159 of Volume 4) that, even apart from the vexed question of feeding the estoppel, the Appellant’s case was “so intrinsically weak that Judgment could not have been given in its favour.” Accordingly, the Court of Appeal dismissed the appeal.

THE APPEAL TO THE SUPREME COURT

(18) Dissatisfied with the decision of the majority, the Appellant lodged the instant appeal. With the leave of this Court, the Appellant filed an Amended Notice of Appeal on the 17th October 2025, advancing the following grounds: a. The judgment of the Learned Justices in the majority of the Court of Appeal is against the weight of evidence. b. The Learned Justices in the majority of the Court of Appeal erred in their application of the doctrine of feeding the estoppel to validate the Respondents’ respective acquisitions from the Nungua Stool.

Particulars of error

(i) At all times material, the Respondents had actual, imputed, and/or constructive knowledge/notice of the defective title of the Nungua Stool in the land which was under the compulsory acquisition and control of the State.

(ii) Since the Respondents knew of the defective authority of the Nungua Stool to convey their respective lands to them, the principle of feeding the estoppel was wholly inapplicable to their respective acquisitions. c. The Learned Justices in the majority of the Court of Appeal erred in holding that the Appellant’s Exhibits A1 and B1 were inadmissible per se for not being stamped.

Particulars of error of law

(i) Whether or not the documents were unstamped was an issue of fact which was neither raised at the trial court nor at the Court of Appeal, thus denying the Appellant the opportunity of responding to same.

(ii) There is a strong presumption that those indentures were stamped since the interest of the Appellant in same had been processed/registered with the Lands Commission. d. The majority Justices of the Court of Appeal misdirected themselves in holding that the Appellant failed to prove the identity of its land.

Particulars of misdirection

(i) The court below failed to take notice that the identity of the Appellant’s land was never in dispute as same has never been controverted.

(ii) There was sufficient evidence on record that put beyond dispute the identity and extent of the parcels of land claimed by the Appellant. e. The Learned Justices in the majority of the Court of Appeal committed a grave error of law in holding that an indenture without a site plan is invalid for violating Regulation 3(1) of the Survey (Supervision and Approval of Plans) Regulations, 1988 (L.I. 1444).

Particulars of error of law

(i) Regulation 3(1) of L.I. 1444 regulates site-plans and not indentures.

(ii) L.I. 1444 is only applicable to a site-plan being used for purposes of registration of title to land.

(iii) The court misconstrued the decision of the Supreme Court in Nortey (No. 2) v. African Institute of Journalism and Communication & Ors (No. 2) (2013–2014) 703, which decision never held that an indenture that did not contain a site-plan executed by the Director of Surveys or his authorized representative is invalid. f. The Learned Justices in the majority of the Court of Appeal erred when they held that the Respondents acquired a valid interest in the land in dispute from the Nungua Stool.

Particulars of error

(i) The Nungua Stool had no interest in the land in dispute at the time it purported to alienate the same to the Respondents.

(ii) The only authority capable of alienating the land at the time of the purported acquisition by the Respondents was the Government of the Republic of Ghana acting through the Lands Commission and not the Nungua Stool.

(19) The Appellant prays this Court to reverse the judgment of the Court of Appeal and to enter judgment in its favour.

THE LAW GOVERNING CIVIL APPEALS OF THIS NATURE

(20) Before turning to the merits, it is important to evaluate the principles that govern an appeal of this kind. An appeal to this Court is by way of rehearing. The Court is not confined to a search for error on the face of the judgment below; it is enjoined to consider afresh the whole of the record – the pleadings, the documentary exhibits, and the oral testimony and to satisfy itself, upon its own examination, that the conclusion reached below is supported by the evidence and the law. This is a duty that lies upon every appellate court at whatever stage, and it is not displaced by the circumstance that a first appellate court has already affirmed the trial court.

(21) Where, as in the instant case, the principal attack is that the judgment is against the weight of the evidence, the law is settled. Such a ground throws the entire record open for review, and obliges the Court to weigh the totality of the evidence, both documentary and oral, against the applicable law. The burden lies upon the appellant who so complains to demonstrate, from the record, the specific pieces of evidence which, had they been properly applied in his favour, or the specific findings which, had they not been made, would have produced a different result: see Djin v. Musah Baako [2007–2008] SCGLR 686; and Tuakwa v. Bosom [2001–2002] SCGLR 61. It is not enough to assert, in the abstract, that the decision is wrong; the appellant must point to the evidence that compels a contrary conclusion.

(22) Where two courts below have arrived at concurrent findings of fact, a further measure of restraint is called for. A second appellate court will not disturb such concurrent findings unless it is shown with absolute clearness that some blunder or error resulting in a miscarriage of justice has occurred such as where the findings are unsupported by the evidence, or are the product of a wrong application of a principle of evidence, or proceed upon a wrong proposition of law, or are inconsistent with crucial documentary evidence on the record: see Achoro v. Akanfela [1996–97] SCGLR 209. The strength of this rule notwithstanding, it does not relieve this Court of its independent duty, the appeal being a rehearing, to be satisfied that the judgment under attack is justified by the evidence and the law. It is against the background of these principles that I now consider the grounds of appeal.

CONSIDERATION OF THE APPEAL

(23) My Lords, I propose to take the first ground of appeal that the judgment is against the weight of the evidence together with the sixth ground that the majority erred in holding that the Respondents acquired a valid interest in the land. The two are intimately connected and may conveniently be disposed of as one. Applying the principles just stated, I have reviewed the whole of the record, and have weighed the competing submissions in the light of it.

(24) For the Appellant, it was argued that the grants to the Respondents were invalid because, at the time they were made, the Nungua Stool had no title to convey; that the Appellant, by contrast, acquired its interest immediately upon the release of the land to the Stool by the Government; and that the doctrine of feeding the estoppel cannot be prayed in aid by the Respondents, who at all material times knew, or ought to have known, of the defective title of their grantor. The courts below, it was urged, failed to interrogate whether the Respondents had acted in good faith, and thereby misapplied the doctrine.

(25) For the Respondents it was argued that the Appellant had failed to identify any evidence improperly evaluated by the court below, and that the grants to the Respondents, though earlier in time, were recognised and affirmed by the Government and so became validated.

(26) I begin with the common ground. From the pleadings and the evidence, the Appellant and the Respondents agree that the land in dispute forms part of a larger tract compulsorily acquired by the Government of the Gold Coast for agricultural use. At paragraph 10 of its Amended Statement of Claim (page 67, Volume 2 of the Record), the Appellant pleaded that, by a Certificate of Title dated the 7th March 1940 (registered as No. 214/1940), the Colonial Government compulsorily acquired the tract, including the land it occupies. By paragraph 5 of their Amended Statement of Defence (page 72, Volume 2), the Respondents admitted that very averment. The parties further agree that, by a lease dated the 12th August 2010 (Exhibit 9, page 156, Volume 2), the Government released to the Nungua Stool a parcel of 974.53 acres for a term of 99 years.

(27) It is of the first importance that, before the execution of Exhibit 9, the Respondents had taken their several leases from the Nungua Stool. By a lease dated the 28th May 1996 (Exhibit 3, page 115, Volume 2) the Stool granted to the Nii Abotsi Borlabi family, the grantor of the 1st Respondent, the land therein described. By Exhibit 25, dated the 25th February 2000 (page 332, Volume 2), the 3rd, 4th and 5th Respondents took their grant. By Exhibit 29, dated the 1st May 2000 (page 8, Volume 3), the 6th Respondent took its grant; and by Exhibit 30, dated the 1st June 2000 (page 14, Volume 3), the 7th Respondent took its grant. Each of these parcels forms part of the land acquired by the Government in 1940. I accept the submission of counsel for the Respondents that the leases were executed by Nii Bortrabi Obroni II, Mankralo and acting Nungua Mantse, and Nuumo Borketey Larweh, Gborbu Wulomo, and so were in conformity with the customary requirements recognised by this Court in Republic v. Committee of Inquiry into Nungua Traditional Affairs, Ex parte Odai IV & Ors [1996–1997] SCGLR 401. But conformity with the custom of execution is one thing; capacity in the grantor to convey is quite another.

(28) As to the 1st and 2nd Respondents, the evidence is that the 1st Respondent acquired the parcel now occupied by the 2nd Respondent by a Deed of Assignment from the Nii Abotsi Borlabi family executed on the 20th October 2015 (Exhibit 13, page 189, Volume 2), and that by an Assignment dated the 25th June 2021 (Exhibit 15, page 226, Volume 2) the 1st Respondent assigned that interest to the 2nd Respondent.

(29) The critical question is therefore whether the majority of the Court of Appeal were right to uphold the validity of the grants to the Respondents, having regard to the compulsory acquisition of 1940. The effect of compulsory acquisition has been considered by this Court on several occasions. In Memuna Moudy & Others v. Antwi [2003–2004] SCGLR 967 the Court explained that:

“Land compulsorily acquired by government under the Public Lands Ordinance, Cap 134 (1951 Rev), vests automatically in the government upon a publication in the gazette; and further that by virtue of section 11 of the Ordinance, the acquisition operates to bar and destroy ‘all other estates, rights, titles, remainders, reversions, limitations, trusts and interests whatsoever of and in the lands’ acquired. And under section 12(2), a certificate of title issued by the court in respect of the acquired land confers upon the holder ‘an absolute title and indefeasible right to the lands free from all adverse or competing rights, titles, interests, trusts, claims and demands whatsoever.’ …”

(30) It follows that, for so long as the acquired land remained vested in the Government, the Nungua Stool had no title in law which it could vest in another. Now, Exhibit 9 expressly provides that the lease was to take effect from the 16th April 2009. The grants to the 3rd to 5th Respondents (Exhibit 25) were made on the 25th February 2000; to the 6th Respondent (Exhibit 29) on the 1st May 2000; and to the 7th Respondent (Exhibit 30) on the 1st June 2000. The cardinal rule of conveyancing is that, unless the contrary be provided, a deed takes effect from the time of its delivery, and prima facie the time of delivery is the date upon the deed: Universal Permanent Building Society v. Cooke & Others [1951] 2 All ER 893. Each of the 3rd to the 7th Respondents’ grants therefore took effect in the year 2000.

(31) Between the 7th March 1940 and the 15th April 2009, title to the acquired land including the land in dispute was vested in the Government of Ghana. It follows, as a matter of law, that any grant of any part of that land made before the 16th April 2009 by a party other than the Government is invalid. The grants to the 3rd to 7th Respondents, made in 2000, fall squarely within that period. A man cannot give what he does not have: nemo dat quod non habet. It was held in Sarkodie v. FKA Co. Ltd [2009] SCGLR 65 that an effective conveyance divests the grantor of any further right, title or interest in the land, so that the same land cannot thereafter be conveyed to a subsequent grantee. The corollary is equally true: a grantor who has no title at all conveys nothing, and the grantee takes nothing.

(32) Nor is the position altered by the argument that the Government, by an agreement of the 25th September 2008, released the land to the Stool. Even on that footing, the grants of the year 2000 still antedate the release. The further submission that, by Exhibit 7 and Exhibit 9, the Government recognised and affirmed the prior grants cannot avail the Respondents. The Government cannot, by recognition, render lawful that which the law deems unlawful; and in any event the parties to Exhibit 9 fixed its commencement at the 16th April 2009, so that any recognition can only embrace grants made on or after that date, not before. To clothe the year-2000 grants with validity would be to bestow judicial blessing upon an act done in derogation of a vested interest of the State. See Network Computers Ltd v. Intelsat Global Sales & Marketing Ltd [2012] 1 SCGLR 218, at 231. To that extent the majority of the Court of Appeal fell into error.

(33) By contrast, the Appellant’s position rests upon firmer ground. By two subleases dated the 16th August 2010 (Exhibits A1 and B1, at pages 99 and 110 of Volume 3), executed with the consent of the Lands Commission (page 107, Volume 3), the Appellant acquired its interest after the land had been released to the Stool by Exhibit 9. There is also evidence that the Appellant entered into possession by erecting corner pillars and, later, ten single-room structures to demarcate the boundaries (Exhibits C series and D series, pages 120–125, Volume 3). Such acts, taken together with the interest of the Appellant presented for registration, are cogent indicia of ownership; for as this Court observed in OSEI V. KORANG [2013–2014] 1 SCGLR 221, while documents of title, receipts and the like do not of themselves confer title, they are nonetheless strong acts of ownership from which title may be inferred.

(34) It is significant that the defect in the Respondents’ grants was recognised by both courts below. The trial Judge, at page 257 of the Record, accepted that “until the Government released the land back to the Nungua Stool, the Stool had no interest in it to have given out any interest to the 3rd to the 7th Defendants … That position is right in law”; and the majority of the Court of Appeal, at page 125 of Volume 4, equally acknowledged that the grants were made when the Stool “had no legal title to the land since the lands were then State lands.” Each court, having seen the defect, sought to cure it by the doctrine of feeding the estoppel. The propriety of that course is the subject of the second ground, to which I now turn. But it is convenient to emphasise here the conclusion that the 3rd to 7th Respondents took their grants with full knowledge that the land had been compulsorily acquired and that the Stool had no title to convey. This factual knowledge is admitted in paragraph 5 of the Amended Statement of Defence of the 3rd to the 7th Respondents. Their acquisition was therefore not made in good faith; and neither the trial Court nor the Court of Appeal could properly shut its eyes to the illegality attending the grants and invoke equity to redeem them. On this ground, accordingly, the majority judgment of the Court of Appeal was given against the weight of the evidence.

THE DOCTRINE OF FEEDING THE ESTOPPEL

(35) The second ground of appeal challenges the application of the doctrine of feeding the estoppel to validate the Respondents’ acquisitions, the particulars being that the 3rd to 7th Respondents had actual, imputed and/or constructive notice of the defective title of the Stool, and that the doctrine is therefore wholly inapplicable to them.

(36) Counsel for the Appellant submitted that the doctrine may be prayed in aid only by a grantee who took without notice of the defect in the grantor’s title; that a purchaser who buys otherwise than in good faith, having notice of the defective title of his grantor, cannot be heard to claim its benefit; and that the 3rd to 7th Respondents, having had such notice, are not entitled to it.

(37) Counsel for the Respondents submitted, on the other hand, that the Stool, having divested itself of its interest by the earlier grants, could make no subsequent valid grant to the Appellant; that, under the doctrine, the earlier grants take precedence over any later grant; and that the Stool in any event denies having made any grant to the Appellant.

The juristic basis of the doctrine

(38) The doctrine of feeding the estoppel is no modern invention. It is an offshoot of the ancient common law principle of estoppel by deed, which precludes a party to a deed from denying, as against the other party, the truth of any material fact which the deed asserts: see Goodtitle d. Edwards v. Bailey (1777) 2 Cowp. 597. Where a grantor conveys an estate in land which, at the date of the conveyance, he does not in fact possess, the conveyance cannot operate to pass any interest, for nemo dat quod non habet. But the grantor, having solemnly affirmed by his deed that he had the estate he purported to convey, is estopped from afterwards asserting the contrary against his grantee. The grant is said to take effect “by estoppel” only. If the grantor later acquires the very estate he earlier purported to convey, the after-acquired estate does not remain in him; it passes instantly and automatically to the grantee, so as to make good the earlier imperfect grant. The interest is then said to “feed the estoppel”, and the grant, which formerly operated by estoppel alone, thereafter takes effect in interest. The grantee’s title is thereby perfected without the need for any fresh act of conveyance.

(39) The classic statement of the principle is that of Lord Moulton, delivering the advice of the Privy Council in Rajapakse v. Fernando [1920] AC 892, where it was put thus:

“Where a grantor has purported to grant an interest in land which he did not at the time possess, but subsequently acquires, the benefit of his subsequent acquisition goes automatically to his earlier grantee, or as it is usually expressed, ‘feeds the estoppel.’”

(40) The same doctrine was received into our law and applied by the former Court of Appeal in Serwah v. Adjen II alias Nkrumah [1992] 1 GLR 296, which both courts below cited. The principle, so far as it goes, is not in doubt. Two cautions, however, attend its application, and it is in disregarding them that the courts below fell into error.

The first limiting principle: the requirement of an averment of title

(41) The first caution is that the doctrine does not operate upon every grant made by one who lacks title and afterwards acquires it. The grant must be of such a character that the grantor has, by it, unequivocally affirmed that he was seised of the estate conveyed. It is that affirmation which founds the estoppel; absent it, there is nothing to estop the grantor from telling the truth, namely that he had no title when he purported to convey. A deed which, far from asserting title, openly proclaims that the grantor does not yet hold the estate raises no estoppel at all, for it represents nothing which the after-acquired title can be said to contradict.

(42) This requirement is settled by Millett LJ in First National Bank plc v. Thompson [1996] Ch 231, CA. The learned Lord Justice, after explaining that the doctrine is the product of the rule that a grantor of a legal estate is precluded from denying that he had title at the time of the grant, drew the distinction in these terms (at page 236):

“Where … a grantor made two successive grants for value, the first when he had no title (which the first grantee should perhaps have discovered), and the second after he had acquired the title, the second grantee (if without notice of the first transaction) was bound by the earlier grant only where it contained a distinct and unequivocal averment of title.”

(43) To the like effect are the learned authors of Halsbury’s Laws of England (4th edn, reissue, Vol. 16(2), title Estoppel), who state that where the grantor afterwards acquires the legal estate the interest is said to feed the estoppel, whereupon the grant takes effect in interest and not merely by estoppel but subject always to the protection of the bona fide purchaser for value without notice. And the same insistence upon a positive affirmation of title is the thread running through the older authority: a deed works an estoppel by its recitals only where the recital is of a particular fact distinctly affirmed, and not where it is general, equivocal, or self-qualifying.

(44) Tested against this requirement, the Respondents’ grants. So far from averring title in the Stool, the very instruments by which the 3rd to 7th Respondents took their grants disclose, on their face, that the Stool had no title to convey. The preamble to Exhibit 25 records, in language admitting of no doubt, that the lessee families approached the Stool “upon reliable information that the Government now intends to formally release the land”. This is an open acknowledgment that, at the date of the grant, the land remained vested in the Government and the Stool had nothing but an expectancy. A deed which thus proclaims the grantor’s want of title cannot, by the after-acquired estate, be made to feed an estoppel; there is simply no antecedent affirmation of seisin for the later-acquired interest to perfect. The doctrine has no purchase upon such an instrument.

The second limiting principle: the protection of the bona fide purchaser without notice, and the want of good faith in the grantee

(45) The second caution, and the more fundamental upon the facts of this case, is twofold. First, the estoppel, even where it is properly raised does not bind a subsequent bona fide purchaser for value who takes from the same grantor, after the grantor has acquired title, without notice of the earlier transaction. As Millett LJ explained in First National Bank plc v. Thompson (at page 236), in such a case the later purchaser took the legal estate free from the interest previously granted, there being no need for equity to intervene. The doctrine perfects the earlier grant by passing the after-acquired estate to the first grantee the instant the grantor acquires it; but as against a later purchaser who buys for value and without notice, the law prefers the innocent purchaser, and the earlier grantee’s equity is postponed. The doctrine is thus not the unconditional and overriding priority for which the Respondents contend; it yields to the bona fide purchaser for value without notice.

(46) Secondly, and conversely, the doctrine will not be invoked by a grantee who himself took otherwise than in good faith. Feeding the estoppel is, in its operation, an equitable as well as a legal doctrine, and it is not blind to a want of bona fides in the party who seeks to claim its benefit. It was never devised to shelter the grantee who, knowing that his grantor had no title, or deliberately closing his eyes to that want of title, took his grant nonetheless and now asks the court to perfect a bargain he knew to be hollow. He who comes to equity must come with clean hands; and a grantee who has notice of his grantor’s want of title cannot found upon the after-acquired estate an equity superior to that of one who took in good faith. This Court said as much in Tassah Tapha Tassah v. Nicholas Adzi & 4 Others (unreported, Civil Appeal No. J4/17/2024, dated the 23rd October 2024):

“The position of the law is that a person cannot validly give something which they do not have. As a result, the law imposes a corresponding duty on a purchaser who sets out to acquire a property or an interest therein to conduct a diligent search in order to establish that the person or vendor who is parting with the property or interest therein, is the rightful person to do so. Otherwise, a purchaser would bear the brunt of acquiring a defective interest. However, equity would step in and protect a purchaser who, despite exercising reasonable diligence in the circumstance, innocently acquires a property or an interest therein for valuable consideration without notice of any adverse interest(s).”

(47) The same emphasis upon good faith confined the protection of the doctrine, in Gyawu v. Adu-Gyamfi [2018–2019] 1 GLR 365, to “a transferee who had purchased in good faith for consideration.” The application of the doctrine is to protect the grantee who, having diligently investigated and been assured of his grantor’s title, discovers that the grantor in truth lacked it, and to prevent the grantor from profiting by his own wrong, not to relieve the imprudent or the mala fide grantee of the consequences of caveat emptor.

Section 26 of the Evidence Act, 1975 (NRCD 323) is no answer

(48) Before applying these principles I must dispose of the trial Judge’s reliance, at page 257 of the Record, upon section 26 of the Evidence Act, 1975 (NRCD 323), a provision she invoked without explaining its operation. It is necessary to do so because the section governs a different species of estoppel altogether; estoppel by conduct or representation (estoppel in pais) and not the estoppel by deed from which feeding the estoppel descends. Section 26 provides:

“26. Estoppel by own statement or conduct – Except as otherwise provided by law, including a rule of equity, when a party has, by that party’s own statement, act or omission, intentionally and deliberately caused or permitted another person to believe a thing to be true and to act upon that belief, the truth of the thing shall be conclusively presumed against that party or the successors in interest of that party in proceedings between (a) that party or the successors in interest of that party, and (b) the relying person or successors in interest of that person.”

(49) The animating elements of the provision are a representation, and reliance upon it to the relier’s detriment. But the conclusive presumption enures only to one who, not knowing and having no means of knowing the truth, was led by the representation to alter his position to his prejudice. Where the person to whom the representation was made knew the truth, or had the means of knowing it, he cannot say that he was induced to believe a thing to be true and to act upon that belief; the inducement is, in his case, a fiction. On the evidence, the 3rd to 7th Respondents knew, when they took their grants, that the land was vested in the Government and that the Stool had no title, a knowledge they admit in paragraph 5 of their Amended Statement of Defence. Section 26 cannot, in those circumstances, be prayed in aid of their cause; there was no representation by the Stool of a title which the Respondents did not already know it lacked, and no relevant reliance by parties who knew the truth. The trial Judge’s recourse to the section was, with respect, misconceived.

Application to the facts

(50) When these principles are applied to the record, the conclusion is inescapable.

(51) First, the doctrine of feeding the estoppel cannot be raised at all upon the Respondents’ instruments, for those instruments contain no averment of the Stool’s title; on the contrary, they disclaim it, reciting that the Government had yet to release the land. There being no affirmation of seisin, there is nothing for the after-acquired estate to feed.

(52) Secondly, even if the doctrine could be raised, it would not bind the Appellant. The land was released to the Stool by Exhibit 9 on the 12th August 2010 (with effect from the 16th April 2009), and the Appellant acquired its interest, for value, on the 16th August 2010, that is, after the Stool had perfected its title. There is no concrete evidence on the record that the Appellant took with notice of any earlier grant to the 3rd to 7th Respondents; indeed the Appellant’s grant was made with the consent of the Lands Commission. The Appellant therefore stands in the position of a bona fide purchaser for value without notice, taking after the grantor had acquired title, against whom the earlier estoppel does not operate.

(53) Thirdly, the 3rd to 7th Respondents cannot, in any event, invoke the doctrine in their own favour, for they did not take in good faith. They knew, when they took their grants in the year 2000, that the land had been compulsorily acquired by the Government and that the Stool had no title to convey. A grantee so circumstanced is the very antithesis of the diligent, innocent purchaser whom the doctrine exists to protect. To extend its benefit to him would be to convert a shield for the honest into a sword for the knowing, and to clothe with validity a grant which both courts below rightly recognised to have been, at its inception, a grant of that which the grantor did not have.

(54) For these reasons the majority of the Court of Appeal, in common with the trial Judge, misapprehended both the basis and the limits of the doctrine of feeding the estoppel. They treated as automatic a doctrine that is conditional; they applied in favour of grantees who took with notice a doctrine that protects only those who take in good faith; and they overlooked that the doctrine, even on its own terms, must yield to a subsequent bona fide purchaser for value without notice, which upon this record the Appellant was shown to be. The second ground of appeal accordingly succeeds.

THE QUESTION OF STAMPING

(55) The third ground contends that the majority erred in holding Exhibits A1 and B1 inadmissible per se for want of stamping, the particulars being that the question of stamping was one of fact never raised at the trial, and that there is a strong presumption that the indentures were stamped, the Appellant’s interest having been processed with the Lands Commission.

(56) Counsel for the Appellant submitted that the Appellant’s interest was registered, and that the majority ought to have afforded the Appellant an opportunity of being heard upon the question of stamping before expunging its certificates.

(57) Counsel for the Respondents replied that the issue was raised in the Respondents’ written address at the trial, and that the Appellant, not having appealed the trial Court’s finding to the Court of Appeal, cannot raise it here.

(58) Whether a deed of lease has been stamped is a question of fact. By settled practice, factual matters must be raised and ventilated at the trial, not for the first time in the closing addresses of counsel. The want of a stamp is an allegation of fact requiring proof, and it must be made good by evidence at the trial. Where a document attached to a witness statement is a photocopy, the opposing party must verify it against the original at the trial in order to ascertain whether it bears the requisite stamp; the process of photocopying may itself obscure an impression upon the document. Under section 6 of the Evidence Act, 1975 (NRCD 323), an objection to the admissibility of evidence must be raised when the evidence is offered, and not in the addresses of counsel, the policy being to afford the tendering party an opportunity to answer the objection: see Edward Nasser & Co. Ltd v McVroom & Another [1996/97] SCGLR 468

(59) A review of the record reveals that not a single question was put to the Appellant’s witness in cross-examination touching the want of stamping of Exhibits A1 and B1, and that the trial Judge herself put no such question. The learned trial Judge’s finding, at page 256 of Volume 3, that “none of the two documents i.e. exhibits A and B is also stamped” rests upon no evidential foundation. While a court may raise the question of stamping suo motu, where the question turns upon facts those facts must first be firmly established. In this case, no such fact concerning the admissibility of Exhibits A1 and B1 were established. Allowing the decisions of the two lower courts to stand will occasion a miscarriage of justice, as the same would robs the Appellant of fair hearing. The third ground accordingly succeeds.

THE IDENTITY OF THE LAND

(60) The fourth ground complains that the majority misdirected themselves in holding that the Appellant failed to prove the identity of its land. Counsel for the Appellant submitted that the identity of the land was never truly in dispute and that the Appellant was thereby relieved of the burden of further proof; counsel for the Respondents submitted that the identity was put in issue, the Respondents having denied the Appellant’s description in paragraph 37 of their Amended Statement of Defence and having given a competing description in their counterclaim.

(61) In the concurring opinion (pages 155–157, Volume 4) it was observed that the Appellant’s subleases “contained the seeds of their own destruction”, there being “no further description of the land such as whether it was bound by any land belonging to any person”; and it was held that in all cases the boundaries of the land claimed must be clearly established.

(62) With respect, the impression conveyed is that there is a single, prescribed formula by which a litigant must describe the land he claims, such that an omission to name the boundary owners is necessarily fatal. That is not the law. It is, of course, well settled that a plaintiff seeking a declaration of title or an injunction must establish the identity of the land he claims with certainty, and there is a venerable line of authority including Anane & Others v. Donkor & Another [1965] GLR 188, Bedu & Others v. Agbi & Others [1972] 2 GLR, and Akoto II & Others v. Kavege & Others [1984–86] 2 GLR 365, where it was held that the failure to prove even one boundary was fatal insisting upon strict proof of boundaries. But that line of authority addresses the case in which the identity of the land is genuinely in contest. It has no application where identity is admitted or not truly in issue; and it was never intended to erect a rigid formula of description, the omission of any element of which is fatal regardless of whether the land can in fact be identified. There is no magic formula. What the law requires is that the claimant describes his land in such a manner that it can be identified upon the ground. The description given by the Appellant at paragraphs 23 and 24 of the Amended Statement of Claim supported by the subleases (Exhibits A1 and B1), abundantly satisfies that requirement. As was held by this Court in Anyetey Chantey v. Tei Kwablah Kweinor, Civil Appeal No. J4/25/2019, dated 20th May 2020, per Appau JSC:

“It is important to note that the term ‘land in dispute’, as used by the appellant in his pleadings referred to above, was in relation to the land over which the plaintiff had sued him. Therefore, when appellant responded to respondent’s claim and registered his denial of respondent’s contention that the disputed land belonged to his family, appellant was referring to no other land but the one over which the respondent had sued him. So, if the defendant, in a traverse, denied that plaintiff was the owner of the land over which he had sued but rather the defendant was the owner, then there is no denial that they both agreed on the identity of the subject matter of the suit.”

(63) Likewise, in Agbosu and Others v. Kotey and Others [2003–2005] 1 GLR this Court held that:

“Although the general principle that a claim for declaration of title or an order for injunction should always fail if the plaintiff failed to establish positively the identity of the land claimed with the land in dispute was sound law, its application was not mandatory where the identity or boundaries of the land claimed was undisputed. Where the identity or the boundaries of the land in dispute as pleaded by the plaintiff was admitted or not denied by the defendant, the applicable principle was that since no issue had been joined, no evidence needed to be led on the identity of the land.”

(64) The fourth ground succeeds.

THE ABSENCE OF A SITE PLAN AND L.I. 1444

(65) The fifth ground complains that the majority committed a grave error of law in holding that an indenture without a site plan is invalid for violating Regulation 3(1) of the Survey (Supervision and Approval of Plans) Regulations, 1988 (L.I. 1444). Counsel for the Appellant submitted that the holding is per incuriam both the Regulations and Nortey (No. 2) v. African Institute of Journalism and Communication & Ors (No. 2) [2013–2014] 1 SCGLR 703. Counsel for the Respondents supported the majority’s holding.

(66) The majority, in the lead opinion (page 142, Volume 4), held that “an indenture without a site plan signed by the Director of Surveys or his authorized representative is invalid because it is in breach of Regulation 34(1)” of L.I. 1444, and the concurring opinion (page 157, Volume 4) considered that the failure to attach a site plan “ought not to have been overlooked.”

(67) Before addressing the substance, a correction of citation is necessary. The instrument relied upon below was described, both in the grounds of appeal and in the judgment of the Court of Appeal, as the Survey (Supervision and Approval of Plans) Regulations, “1988”. The instrument is in truth the Survey (Supervision and Approval of Plans) Regulations, 1989 (L.I. 1444), gazetted on the 9th June 1989. I have examined it with care. It contains no provision answering to “Regulation 34(1)”. The Regulations end at regulation 24; they do not extend even to regulation 25. There is, accordingly, no such provision as that upon which the majority and counsel for the Respondents relied.

(68) The matter does not, however, rest there, for the trial Judge had relied upon Buildaf Ltd & Ors v. Catholic Church [2017–2020] 1 SCGLR 1143 for the proposition that “a deed of assignment cannot be complete without the site plan and is legally invalid without due execution.” That proposition, properly read, turns upon due execution, not upon the presence of a plan. It has always been the law that it is the execution of a deed of conveyance by the grantor that makes it valid and passes the property. So this Court held in DaCosta & Others v. Ofori Transport Ltd [2007–2008] SCGLR 602:

“A deed of grant or other assurance of property takes effect immediately upon its execution by the grantor and passes the property expressed to be assured to the grantee although the grantee has not executed or assented to the deed.”

(69) See also Fugar v. Bossman & Another [1963] 1 GLR 16. A deed of conveyance is therefore not rendered invalid by the absence of a site plan, provided the parcel conveyed is sufficiently described in the deed and the deed is duly executed by the grantor. Neither Buildaf nor Nortey (No. 2) is authority for the contrary proposition that a deed without a site plan is invalid. A conveyance may be incomplete for want of a plan; it is not on that account invalid, the plan being but a pictorial representation of a parcel already described in words.

(70) Regulation 3(1) of L.I. 1444 bears this out. It provides:

“No plan of any parcel of land attached to any instrument for the registration of such instrument shall be accepted by the Chief Registrar of Lands or the Registrar appointed pursuant to the provisions of the Land Registry Act, 1962 (Act 122) unless the plan has been approved by the Director of Surveys or any official surveyor authorised in that behalf in accordance with regulation 2 of these Regulations.”

(71) The marginal note to regulation 3 reads “Director of Surveys to Approve Plan”, and the whole of the regulation is concerned with the authority of the Director of Surveys to approve or disapprove plans, and with the grounds upon which he may refuse approval. Nowhere does the regulation provide that an instrument is rendered invalid by the presence of an unapproved plan or by the absence of a plan altogether. The focal point of the regulation is the plan, and the consequence of an unapproved plan is merely that the Chief Registrar may decline to accept it for registration. It is no warrant for invalidating the instrument itself. The majority of the Court of Appeal both misapplied L.I. 1444 and misdescribed it, by reference to a non-existent provision. The fifth ground succeeds.

INTERFERENCE WITH CONCURRENT FINDINGS

(72) It remains to address the threshold which a second appellate court must surmount before disturbing concurrent findings. In Koglex Ltd v. Field [1999–2000] 2 GLR 437, at page 446, this Court explained that a second appellate court must satisfy itself that the first appellate court’s judgment is justified by the evidence, and that concurrent findings will not be disturbed unless it be established with absolute clearness that some blunder or error resulting in a miscarriage of justice is apparent. The recognised instances include findings unsupported by the evidence, findings reached by an improper application of a principle of evidence, findings based upon a wrong proposition of law, and findings inconsistent with crucial documentary evidence. As the Court there reaffirmed, an appeal at whatever stage is by way of rehearing, and every appellate court has a duty to make its own independent examination of the record.

(73) Measured against that standard, the present case is a clear one. The endorsement by the majority of the grants made to the 3rd to 7th Respondents, at a time when the Stool had no title, is contrary to law and amounts to the judicial sanction of an illegality. The rejection of the Appellant’s subleases for want of stamping rested upon no established factual basis. The holding that those subleases were invalid for want of a site plan rested upon a misapprehension of the law and a misdescription of L.I. 1444. And the doctrine of feeding the estoppel was misapplied in favour of grantees who took with notice of their grantor’s want of title. Each of these errors would, by itself, justify intervention; cumulatively they leave no doubt. The majority judgment of the Court of Appeal cannot stand and is hereby set aside.

THE POSITION OF THE 1ST AND 2ND RESPONDENTS

(74) The case of the 1st and 2nd Respondents stands upon a different footing and calls for separate consideration. The 1st Respondent obtained its grant of the parcel now occupied by the 2nd Respondent from the Nii Abotsi Borlabi family by a Deed of Assignment executed on the 20th October 2015 (Exhibit 13, page 189, Volume 2), and proceeded to obtain Land Title Certificate No. T.D 0558 (Exhibit 13A) over the parcel, which measures 29.791 acres. When members of the grantor family encroached, the 1st Respondent sued and the matter was amicably settled by terms of settlement (Exhibits 14 and 14A, pages 204 and 210, Volume 2). By a Deed of Assignment executed on the 25th June 2021 (Exhibit 15, page 226, Volume 2) the 1st Respondent assigned its interest to the 2nd Respondent. A search (Exhibit 17, page 243, Volume 2) confirmed registration in the 1st Respondent’s name.

(75) Crucially, there is evidence that, before acquiring, a representative of the 1st and 2nd Respondents visited the land on several occasions and found no encumbrance save the structures of the Nii Abotsi Borlabi family, the grantor; and that the parcel claimed by the 1st and 2nd Respondents does not form part of the parcel claimed by the Appellant. It appears, further, that the Appellant’s interest in the land it acquired, though presented for registration, had not been formally registered at the Lands Commission, so that the 1st and 2nd Respondents could have had no notice of it; indeed, once the grantor’s Land Title Certificate was imprinted upon the parcel, a search at the Land Registry would return only the grantor’s registration. Given that the 1st Respondent has been in possession since October 2015, that it subsequently assigned to the 2nd Respondent, and that the 2nd Respondent has developed the parcel, it would be inequitable to deny the 1st and 2nd Respondents their possessory right over this distinct parcel, notwithstanding the defect in the title of the 1st Respondent’s grantor. To that limited extent, the 1st and 2nd Respondents are entitled to be protected.

CONCLUSION AND ORDERS

(76) For all the reasons set out above, the judgment delivered by the majority of the Court of Appeal on the 27th March 2025 is hereby set aside. The appeal succeeds in part. We hereby make the following orders:

The judgment of the Court of Appeal (majority decision) dated 27/3/2025 is hereby set aside.

Save as otherwise stated, judgment is entered in favour of the Appellant against the 3rd, 4th, 5th, 6th and 7th Defendants/Respondents/Respondents in respect of the reliefs endorsed in the Plaintiff/Appellant/Appellant’s amended writ of summons and statement of claim filed on 10th January 2022.

Save as otherwise stated, title in the land endorsed in the Plaintiff/Appellant/Appellant’s amended writ and statement of claim is hereby declared in the Plaintiff/ Appellant/Appellant’s subject and except the parcel claimed by the 1st and 2nd Defendants/ Respondents/Respondents.

The Plaintiff/Appellant/Appellant shall be entitled to recover possession of the land claimed as the legal title owner, subject to the possessory right of the 1st and 2nd Defendants/ Respondents/ Respondents and all persons not parties to this suit who procured their interest before the date of this judgment and have built on same.

The 3rd, 4th, 5th, 6th and 7th Defendants/Respondents/ Respondents and all persons claiming through them, are hereby perpetually restrained from interfering with the part of the land hereby declared in favour of the Plaintiff/Appellant/Appellant.

For the avoidance of doubt this court grants a possessory right to the 1st and 2nd Defendant/Respondents/ Respondents in respect of the parcel acquired by the 1st Defendant/Respondent/Respondent from the Nii Abotsi Borlabi family covered by Land Title Certificate No.TD 0558, Volume 019, Folio 58 dated the 10th day of June 2016, measuring 29;791 acres and duly assigned to the 2nd Defendant/Respondent/Respondent.

All third parties whose grants predated this judgment and who have built or developed their interests shall atone tenant to the Plaintiff/Appellant/Appellant.

The counterclaim seeking declarations of title in favour of the 3rd, 4th, 5th, 6th and 7th Defendants/ Respondents/Respondents is dismissed and reliefs (e) (f) (g) (h) (i) (j) and (k) of the counterclaim are also dismissed.

The order made by the Court of Appeal (majority decision) for the award of costs of Gh¢70,000 in favour of the Defendants/ Respondents/Respondents against the Plaintiff/Appellant/Appellant is hereby set aside.

(SGD.) J. BARTELS-KODWO

(JUSTICE OF THE SUPREME COURT)

(SGD.) S. K. A. ASIEDU

(JUSTICE OF THE SUPREME COURT)

CONCURRING OPINION

TANKO AMADU JSC:

My Lords, I have had the advantage of reading in draft the lucid and comprehensive opinion of my Learned and respected sister, and I agree, for the reasons she has so carefully marshalled that, this appeal must succeed in the manner and to the extent she held. Were the Court of one mind, I might have been content to say no more. But we are divided, and the division is upon the central question provoked in the appeal, that is, the validity of the grants to the 3rd to 7th Respondents and the reach of the doctrine of feeding the estoppel. In that circumstance, a concurrence is not an indulgence but a judicial duty. It is even more so when the opinion of my respected brethren in the minority which I have had the privilege of reading expands the scope of the issues on which the decision of the court will turn.

Thus, where the Court speaks with a divided voice, it is the more important that, the prevailing reasoning be stated with such fullness and rigour as to leave its foundations beyond cavil. I opine therefore, to fortify my sister’s conclusion upon the point that divides us, and to meet directly the contrary view of my Learned brethren in the minority which I have considered with the respect it commands.

It is as well to begin by naming plainly what this case is, beneath the conveyancing detail in which it is dressed. The case of the 3rd to 7th Defendants/Respondents/ Respondents in my view, is an invitation to this Court to do, through the instrument of equity, the very thing which the law forbids to be done directly: to breathe legal life into grants which, at the moment of their making, were stillborn and made by a grantor who had nothing to give of land which a statute had placed beyond his reach, and taken by grantees who knew about their grantor’s deficient title, ownership or authority to so grant. See Section 39 of the Lands Acts 2020 (Act 1036).

The invitation is a seductive one, for it wears the respectable garb of an equitable doctrine of ancient lineage; and it is, I readily acknowledge, the seduction to which the courts below and my dissenting brethren have with all due respect, succumbed. But equity is not a sanctuary for the knowing wrongdoer. The doctrine of feeding the estoppel, rightly understood, was never the universal solvent of illegality for which it has been pressed into service in this case. A doctrine devised to relieve the honest and the diligent cannot be turned into a charter for those who deal with their eyes open in land they know their grantor cannot convey. To hold otherwise, is to permit the cleansing waters of equity to be drawn from a contaminated source.

With profound respect to my brethren in the minority who take the contrary view, their dissent appears to me to rest upon a single, understandable, but ultimately fatal assumption that, because the Nungua Stool’s want of title in the year 2000 was a defect of the kind which a subsequent acquisition can ordinarily cure, the doctrine of feeding the estoppel must follow as a matter of course once the land was released. That assumption mistakes the character of the defect and, with it, the reach of the doctrine. Further, particularly because the position of the minority turned substantially on the presumed ancestral equitable rights of the 3rd to 7th Defendants/Respondents/ Respondents, notwithstanding the legislative intervention of 1940 by which the State compulsorily acquired the subject matter for public purpose, with the effect that, those ancestral rights prior to the compulsory acquisition had completely extinguished, I shall in the course of this concurrence dwell fully on this issue for two reasons.

Firstly, that issue did not arise from the concurrent judgments of the two lower courts and the grounds of appeal filed by the Plaintiff/Appellant/Appellant. While it is conceded that, though the court is not confined to only the grounds of appeal filed, the determination of an issue not provoked by the grounds of appeal would have required that, the parties be directed to address the court on the issue before a determination on which a decision turns is made. Secondly, the decisions of the two lower courts, we have been invited to review by the process of a rehearing, did not address the issue on which the respected brethren in the minority rested their decisions.

It is thus the burden of this opinion to address four key matters: first, and principally, the interaction between illegality and the doctrine of feeding the estoppel; secondly, the question of stamping; thirdly, the identity of the land; and fourthly, the possession upon which the dissenting opinions principally rely, and the answer which the law of compulsory acquisition returns to it.

ILLEGALITY AND THE DOCTRINE OF FEEDING THE ESTOPPEL

The starting point is a proposition which admits of no qualification. From the 7th March 1940, when the Colonial Government of the then Gold Coast compulsorily acquired the larger tract of land, until the release effected by Exhibit 9 with effect from the 16th April 2009, the land in dispute was vested in the State. Throughout that period the Nungua Stool held nothing, and could grant nothing. Every purported alienation of that land by the Stool in that period was not merely voidable, nor imperfect, nor inchoate; it was, in the contemplation of the law, a nullity. It was an act done in derogation of a title which an Act of the legislature had vested, absolutely and indefeasibly, in another, the State. The grants to the 3rd to 7th Respondents, all made in the year 2000, were of this character. They were void at birth. That much both lower courts accepted, and that much, the dissenting opinions do not deny.

The point of departure is what follows from it. My dissenting brethren reason that, the Stool having later acquired the title it lacked, the after-acquired estate fed the imperfect grants and perfected them, so that the Respondents’ grants, though premature, ripened into good title upon the release. The reasoning has a surface symmetry, but it conceals the very question to be decided. It assumes that the doctrine of feeding the estoppel operates upon these grants. Whether it does, is the whole of the dispute; and to assume it, is to argue in a circle without a compass to a safe destination consistent with settled jurisprudence.

It is trite that, equity does not operate in defiance of law; it operates in fulfilment of it. The maxim is not that equity overrides the law but that equity follows it, aequitas sequitur legem. The Court of Chancery was never a tribunal for the rescue of illegal bargains; it was a court of conscience, and its conscience was offended quite as much by the suitor’s own iniquity as by the 3rd to 7th Defendants/Respondents/Respondents. Hence, the two maxims that stand sentinel at the threshold of every equitable claim: that he who comes to equity must come with clean hands, and that he who has himself committed iniquity shall not have equity. They mark the boundary beyond which the equitable jurisdiction does not extend at all. The principle was stated, once and for all, by Lord Mansfield CJ in HOLMAN VS. JOHNSON (1775) 1 COWP. 341, 343 as follows:

“No court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act. If, from the Plaintiff’s own stating or otherwise, the cause of action appears to arise ex turpi causa, or the transgression of a positive law of this country, there the court says he has no right to be assisted.”

The grants to the 3rd to 7th Defendants/Respondents Respondents were therefore the transgression of a positive law which, by the compulsory acquisition, had vested the land in the State and barred and destroyed all competing interests in it. A party who must trace his title through such a grant founds his claim ex turpi causa: he asks the court to assume, as the very premise of his case, the validity of a transaction which the law pronounces void. That the court cannot do, whether asked to do so at law or in equity. As this Court held in REPUBLIC VS. HIGH COURT (FAST TRACK DIVISION) ACCRA; EX-PARTE NATIONAL LOTTERY AUTHORITY (GHANA LOTTO OPERATORS ASSOCIATION & OTHERS INTERESTED PARTIES) [2009] SCGLR 390, and reaffirmed in NETWORK COMPUTERS LTD. VS. INTELSAT GLOBAL SALES & MARKETING LTD. [2012] 1 SCGLR 218, no judge has authority to grant any person immunity from the consequences of a breach of an Act of Parliament, nor to gloss over such a breach.

What that principle forbids the court to do by direct command, the doctrine of feeding the estoppel cannot be permitted to achieve by indirection. And it is no answer to say that the Stool, having later acquired title, could give the Plaintiff/Appellant/Appellant nothing because it had already parted with its interest; for one cannot part with what one never had. As this Court held in SARKODIE VS. FKA CO. LTD. [2009] SCGLR 65, it is only an effective conveyance that divests a grantor of his interest so as to disable a later grant. A void grant divests nothing. The Stool’s purported grants of the year 2000, being void, left its after-acquired title intact and free to pass to the Plaintiff/Appellant/Appellant in 2010.

It is here that, the true office of the doctrine must be understood, for in its office lies the answer to the dissent. Estoppel, as Appau JSC observed in ANYETEY CHANTEY VS. TEI KWABLAH KWEINOR, CIVIL APPEAL NO. J4/25/2019, DATED 20TH MAY 2020, is of “kaleidoscopic varieties” by conduct, by deed, by representation, by record, by negligence, and the conditions of one are not the conditions of another. Feeding the estoppel is the offspring of estoppel by deed. Its premise is that a grantor who has solemnly affirmed by his deed that he holds an estate shall not afterwards be heard to deny that affirmation against his grantee; and that if he later acquires the estate he falsely claimed to hold, the after-acquired interest passes at once to the grantee, perfecting the grant.

The doctrine thus operates upon a representation – the grantor’s affirmation of a title he did not have and it operates for the protection of one who was entitled to rely upon that representation. It presupposes, in a word, an innocent grantee: one who believed, and was entitled to believe, that his grantor had the title he professed. The doctrine is a shield forged for honest reliance; it is not a mechanical rule of after-acquired title that operates in vacuum, regardless of what the parties knew.

The doctrine cannot assist a grantee who knew the representation to be false at the very moment it was made. In such a case there is no reliance for equity to protect, for the grantee relied upon nothing; he knew the truth. There is no representation capable of founding an estoppel, for a man cannot be estopped from asserting what both parties knew to be the fact. And there is, above all, no innocence to attract the solicitude of a court of conscience.

The 3rd to 7th Defendants/Respondents/Respondents knew the hard fact. They admit in paragraph 5 of their Amended Statement of Defence that they knew that, the land had been compulsorily acquired and that the Stool had no title to convey. Their own instruments proclaim it: the preamble to Exhibit 25 recites that they approached the Stool merely upon information that the Government “now intends to formally release the land.” That recital is not the language of a deed that affirms a present title; it is the language of a deed that confesses the want of one. There is nothing in it for an after-acquired estate to feed.

Simply put, the 3rd to 7th Defendants/Respondents/ Respondents took, in a word, with their eyes open. They were not innocent grantees whom the doctrine exists to shelter, but speculators who gambled upon a future release, and who now ask this Court to convert their gamble into a vested right at the expense of one who took honestly and for value after the title of the grantor had been perfected.

I would therefore emphatically state the governing principle in terms that I hope, may set the question beyond future doubt. The doctrine of feeding the estoppel does not cure illegality; it presupposes its absence. Where the antecedent grant is merely imperfect, as where a grantor with a defective, partial, or unperfected title later perfects it, the after-acquired interest may properly feed the estoppel for the benefit of an innocent grantee. But where the antecedent grant is not imperfect but unlawful, that is, where it is the alienation of land which a statute has vested in another and forbidden the grantor to touch, the doctrine has no application whatever; and least of all where the grantee shared in the unlawfulness with full knowledge of it.

The treatment of the 3rd to 7th Defendants/Respondents/ Respondents’ grants as a curable imperfection is, with respect, wholly erroneous, as in truth, it is actually an incurable illegality. To permit it would be to make equity the handmaid of illegality and to reward the very want of diligence and good faith which equity exists to discountenance. The conscience of the court cannot be prayed in aid of those who knowingly traffic in what the law has placed beyond traffic.

A further dimension fortifies this conclusion. The interest which the Nungua Stool purported to alienate in the year 2000 was not that of a private grantor but that of the State, in whom the land then stood vested by force of statute, and for a public purpose – the animal husbandry for which it had been acquired. The grants were thus a derogation not from a private right but from a public title and interest. The considerations of policy that underlie the illegality principle apply with redoubled force where the illegality consists in the unauthorised disposition of land vested in the State.

A court of equity that lent its aid to perfect such a disposition would not merely relieve a private wrong; it would subordinate the statutory vesting of public land to the clandestine dealings of those who had no business dealing in it at all, and would hold out to every subject tempted to anticipate a future release the assurance that equity will ratify his speculation if only the State should later relent. That is an assurance this Court must withhold.

For these reasons, I am of the considered position that, the doctrine of feeding the estoppel was wholly inapplicable to the grants to the 3rd to 7th Defendants/Respondents/ Respondents, and the majority of the Court of Appeal erred in deploying it to validate them. The Plaintiff/Appellant/Appellant, by contrast, acquired its interest on the 16th August 2010 after the land had been released to and vested in the Stool for value, with the consent of the Lands Commission, and, upon the evidence, without notice of any earlier grant. As between a grantee who took lawfully, honestly and for value after the perfection of the grantor’s title, and grantees who took unlawfully and knowingly before it, the law and equity speak with one voice.

THE QUESTION OF STAMPING

Upon the second matter, I can be brief, for the error of the courts below is, with respect, a plain one, though its plainness should not obscure its gravity. The Learned Trial Judge held the Appellant’s Exhibits A1 and B1 inadmissible for want of stamping, and the majority of the Court of Appeal adopted that holding. The difficulty is that the want of stamping was never established. It was assumed. And in so holding both lower courts were in error as they clearly misapprehended the proper application of the relevant statutory provisions and prevailing case law.

Whether an instrument bears a stamp is, of its nature, a question of fact and a question of fact of a peculiarly concrete and verifiable kind, since it depends upon the physical condition of the document, ascertainable by inspection of the original. It is not a matter of inference or of legal characterisation; it is a matter of perception before reception and evaluation.

The cardinal rule of our adjectival law is that, an objection to the admissibility of a document must be taken when the document is tendered, so that the party tendering it may have the opportunity, at the time of tendering, of meeting the objection by producing the original, by exhibiting the stamp, or by tendering the receipt for the duty paid or for the court to make any order therefrom. That rule, reflected in Section 6 of the Evidence Act, 1975 (NRCD 323), is not a mere matter of orderly procedure; it is a safeguard of the fairness of the trial, for it ensures that no party is condemned upon a factual premise he was never given the opportunity to contest. This Court affirmed the position of the law in REPUBLIC VS. HIGH COURT, COMMERCIAL DIVISION, ACCRA; EX-PARTE KWABENA DUFFUOR (ATTORNEY GENERAL & 8 OTHERS – INTERESTED PARTIES) [2021–2022] 1 SCLRG 88.

In the instant case, the objection was not taken when the exhibits were tendered. The issue of admissibility was raised only in the written address of the lawyer for Defendants/Respondents/Respondents clearly after the trial had closed and the opportunity to answer was no longer available. Not a single question was put to the Plaintiff/Appellant/Appellant’s witness, whether in cross-examination or by the trial court itself, touching the presence or absence of a stamp upon Exhibits A1 and B1. The premise upon which the documents were excluded was therefore never proved. It was conjured. This Court confronted a closely analogous default in AMOAKOHENE VS. AMOAKOHENE, Civil Appeal J4/2/2019, dated 13th May 2020, where it held, per Dordzie JSC, that an assertion of the kind in question that a solicitor held no practising licence “is a statement that requires proof” and could not be entertained where it had not been raised at the trial and supported by evidence.

The want of a stamp is a statement of exactly that character. And where, as in the instant case, the documents in evidence were photocopies, the danger of proceeding upon assumption can lead to a travesty of justice. For, the very process of reproduction may efface a stamp impressed upon the original. Moreover, the Plaintiffs/Appellants/Appellant’s interest having been submitted to and received by the Lands Commission for registration; and by virtue of Section 37(1) of the Evidence Act, 1975 (NRCD 323), it is presumed that, an official duty has been regularly performed; a presumption which this Court, per Wood JSC (as she then was), held in GPHA & CAPTAN ZEIM VS. NOVA COMPLEX LTD. [2007–2008] SCGLR 806 to extend to all duties required by law to be performed.

The fact of registration ordinarily presupposing payment of the duty, the presumption ran in favour of stamping, not against it; yet it was the unproved opposite that, the two lower courts below assumed. To exclude a party’s root of title upon an unproved assumption, reached without inquiry, announced for the first time after the party could no longer be heard, and contrary to a statutory presumption in his favour, is to apply the law to a fact that does not exist. It offends against the principle settled in FATAL VS. WOLLEY [2013–2014] 2 SCGLR 1070, that the facts to which a rule of law is to be applied must first be established by evidence before the rule may operate upon them. As I have earlier observed, the position of the two lower courts is inconsistent with the new thinking of this court which is binding on them in respect of the effect of stamping of document.

In the case of NII AFLAH VS. BENJAMIN KWAKU BOATENG (unreported) Civil Appeal No.J4/80/2022 dated 22nd March 2023, this question of admissibility or now admissibility of unstamped documents confronted this court. In a unanimous decision of this court per my respected brother Kulendi, JSC this court took a journey through all the previous case law on the subject including AMONOO & ORS. VS. DEE (1975)1 GLR 305, ANTIE & ADJUWUAH VS. OGBO (2005-2006) SCGLR 494 particularly page 506, LIZORI LTD. VS. BOYE & SCHOOL OF DOMESTIC SCIENCE AND CATERING (2013-2014) SCGLR 889, MARY TSOTSOO LARYEA VS. AMARKAI LARYEA (unreported) Civil Appeal No.J4/36/2016 dated 7th June 2018, WOOD HOUSE LTD. VS. AIRTEL GHANA LTD. (2017-2018 SCGLR 615. This court took into consideration all the relevant provisions of the Stamp Duty Act, (Act 689) as well as the relevant statutory provision in Section 109 and eruditely articulated on the issue which I hereby reproduce in extenso for its relevance and effect as follows: –

“…. Secondly, Section 32 ensures that, a party desirous of putting an unstamped document in evidence does not automatically forfeit the opportunity of having such a document received into the record but marked as rejected on the ground that it is either unstamped, as in the Lizori, Mary Tsotsoo and Woodhouse cases or insufficiently or irregularly stamped as in the ANTIE VS. OGBO case. The proponent of the unstamped document is given the option to pay the applicable stamp duty and/or penalty to the Registrar of the Court and thereafter have the instrument received in evidence. Otherwise, an unstamped document will be rejected and marked as such and consequently cannot be considered as part of the evidence for the purposes of adjudicating a dispute.

By this formulation in Act 689, both the revenue objective of the Stamp Duty Act and the need to ensure that documents or instruments that may be relevant and credible is not excluded from being received in evidence and considered by a Court, Arbitrator or Referee to aid the ends of justice, are secured. In other words, the provisions of Section 32 of Act 689 are nuanced in order to maximize the primary revenue objectives of the Stamp Duty Act, 2005 (Act 689) while ensuring that trial processes and ultimately the ends of justice are not unduly disabled from doing substantial justice by the exclusion of relevant documentary evidence that may well enable an effective, fair and just adjudication of disputes.

We are of the view that Section 32 supra is consistent with the law on a wrong ruling as to the requirement or otherwise of stamping. This is provided for under Section 109 of the Courts Act, 1993 (Act 459) which provides that:

“Where an objection is taken in any court to the admissibility of a document in evidence on the grounds of the absence or insufficiency of a stamp, the decision of the court shall not be reversed, set aside or otherwise interfered with by reason only of a ruling of the Court that the document requires a stamp or that the stamp on the document is insufficient or because the document does not require stamping.”

The import of Section 109 supra is that an erroneous ruling by a Court that a document offered in evidence is not subject to stamping at all or if subject to stamping, that sufficient stamp duty has been paid, will not of itself invalidate a decision of the Court. Consequently, a decision which took into account such wrongly adjudged and admitted documents shall not be reversed, set aside or otherwise interfered with, on the sole ground that, the document was subject to stamping or that the full stamp duty was not paid, or that the document was not subject to stamping.

This represents the current position of the law which was completely lost on the two lower courts. And for this and the other reason I have hereinbefore articulated, I agree with my sister in the lead majority opinion that this appeal must succeed to the extent she had reasoned and concluded.

THE IDENTITY OF THE LAND

The third matter concerns the holding that the Appellant failed to establish the identity of the land it claimed. Here too I am in respectful agreement with my sister, and I add only a word upon the principle, because the contrary view rests upon an over-rigid conception of what the law requires. It is, of course, elementary that a party who seeks a declaration of title or an order of injunction must identify, with sufficient certainty, the land to which the claim relates; for the court cannot declare title to, or restrain interference with, a parcel of land, the identity of which is not known. The authorities that insist upon this requirement are many and emphatic.

In ANANE & OTHERS VS. DONKOR & ANOTHER [1965] GLR 188 it was laid down that such a claim must fail if the Plaintiff does not establish positively the identity of the land, and in AKOTO II & OTHERS VS. KAVEGE & OTHERS [1984–86] 2 GLR 365 the failure to prove even a single boundary was held fatal. But the requirement which those cases enforce is one of substance, not of ritual, and it is addressed to the case where identity is genuinely in doubt, that is on a case by case basis. What the law demands is that, the land be described in such a manner that it can be identified and laid out upon the ground with reasonable certainty. It does not prescribe a single liturgical formula, such as a recitation of the four cardinal boundaries with the mathematical certainty with the name of each abutting owner from which any departure is fatal.

A parcel of land may be identified with complete certainty by a survey plan, by metes and bounds, by reference to fixed monuments, or by a combination of these; and the omission to name the owners of the adjoining lands is not, of itself, a defect of identification at all. The strict authorities are not to the contrary: they condemn uncertainty, not the want of any particular formula; and they have no application where, the land being identified or its identity as in the instant case where the identity of the land is not in dispute and therefore not an issue, there is nothing left to prove.

In the instant dispute, the Plaintiff/Appellant/Appellant described its land at paragraphs 23 and 24 of the Amended Statement of Claim by a detailed schedule of pillared boundaries, bearings and distances, yielding a defined area expressed both in acres and in hectares; and that description was carried into the subleases themselves. A surveyor handed that description could go upon the land and trace its perimeter. Nothing more is required by way of identification.

There is no doubt that, the identity of the land was not in genuine controversy between these parties. Both sides traced their grants to a common grantor, the Nungua Stool, in respect of portions of one and the same acquired tract; the contest between them was never about where the land lay, but about who had validly acquired it. Where the identity of the land is admitted or is not truly put in issue, no issue is joined upon it, and the Plaintiff/Appellant/Appellant was therefore relieved of the burden of leading evidence to prove that which his opponent does not dispute. So it was held in ANYETEY CHANTEY VS. TEI KWABLAH KWEINOR, CIVIL APPEAL No. J4/25/2019, Dated 20th May 2020, per APPAU JSC that a Defendant who denies the Plaintiff’s ownership of the very land over which he has been sued does not thereby dispute its identity, but on the contrary affirms it. The Plaintiff/Appellant/Appellant’s claim cannot therefore be defeated for failing to prove a fact which lay outside the real contest between the parties.

POSSESSION AND THE EXTINCTION OF ANCESTRAL OCCUPATION BY COMPULSORY ACQUISITION

I would not ordinarily extend a concurrence beyond the three matters I set out at the threshold. But the two dissenting opinions, which I have had the advantage of reading in full, rest the whole of their reasoning upon a single foundation, and that foundation is the continued possession and occupation of the land by the 3rd to 7th Defendants/Respondents/Respondents and their ancestors. It is said that, the subjects of the Nungua Stool were in occupation of Borteyman before the acquisition of 1940. That, they remained in occupation after it; and further that, this unbroken ancestral possession is the fact which, more than any other, entitles them to the land. With the greatest respect to my Learned brethren, that foundation is built upon a misapprehension of the legal consequence of the compulsory State acquisition of the land. The possession upon which they rely is a possession which the law had already destroyed. To rest a title upon it is to raise an edifice upon a thing that, in the contemplation of law, was not there.

A compulsory acquisition by the State is not a transfer of ownership merely. It is an extinguishment of every antecedent interest in the land. It sweeps the slate clean. The estate it creates in the State is not carved out of the prior owner’s estate, leaving lesser interests to survive beneath it. It creates a new, original and paramount title, and it takes effect by destroying everything that stood before it, root and branch.

This Court has said so in the plainest terms. In MEMUNA MOUDY & OTHERS VS. ANTWI [2003–2004] SCGLR 967 this Court explained that an acquisition of this character operates to bar and destroy all other estates, rights, titles, remainders, reversions, limitations, trusts and interests whatsoever of and in the land acquired, and that the Certificate of Title issued upon it confers an absolute and indefeasible title, free from all adverse or competing rights, titles, interests, trusts, claims and demands whatsoever.

In SAGOE & ORS. VS. SOCIAL SECURITY & NATIONAL INSURANCE TRUST [2012] 2 SCGLR 1093, this Court reaffirmed that, the legal effect of a compulsory acquisition is to extinguish all the rights of the pre-acquisition owner. It is, I note with some emphasis, the very case which my Learned brother in dissent himself cites; yet with all due respect, having misapplied it, that very case by its ratio and proper application in my respectful view, is fatal to the conclusion he reached.

From the 7th March 1940, the date the acquisition took effect, the ancestral interest of the Bortey We Clan and of every subject of the Nungua Stool in the land at Borteyman ceased to exist in law. Whatever the families had held before that date, whether by first settlement, farming, burial of their dead, or by the building of their village was, from that date, gone. It was not suspended, to revive upon a future release. It was completely extinguished.

What remained on the ground thereafter was occupation merely, that is, the physical fact of persons remaining upon land which the law had vested in another and such occupation, however long continued and however sincerely believed to be of right, is not a legal interest. As against the State, those who remained were, in unvarnished legal terms, in no better position than trespassers; and no length of trespass against the State could mature into a title.

It is true, and I do not for a moment doubt that, possession is a powerful incident in our land law. A person in possession is presumed to be the owner, and his possession is good against all the world save the true owner or one with a better title. This Court affirmed this legal position in OSEI (SUBSTITUTED BY GILLARD) VS. KORANG [2013–2014] 1 SCGLR 221. But the presumption which possession raises is a rebuttable one, and the very authorities which exalt possession contain the answer to it. That is why any possession avails against all the world except the one with a better title. Here, there was such a one the State itself, and that title was not merely better, it was paramount, statutory, absolute and indefeasible. The State held the land and no equitable interest can be said to be vested in the 3rd to 7th Defendants/Respondents/ Respondents concurrently.

The presumption of ownership which the families’ occupation might otherwise have raised was therefore rebutted at the root, and rebutted by the strongest title known to our law. To invoke the protection which the law accords to possession, while passing over in silence the one fact, the paramount title of the State which by the very terms of that protection defeats it, is, with respect, to invoke a principle by reciting one half of it and suppressing the other.

Herein lies, with all due respect, the central misdirection that runs through both dissents, and it is a misdirection not of detail but of approach. Confronted with grants which the law pronounces void, and which both lower courts conceded to be made at a time when the Stool had no title, my Learned brethren have turned away from the hard question of law, whether a void grant can be validated and have sought refuge upon the softer ground of fact, the long and sympathetic occupation of the families. The occupation is real, and the sympathy it commands is natural; but neither sympathy nor occupation is a source of title, and a court of law cannot allow the one to supply what the other lacks.

The minority positions, if I may say so with respect, hammer the anvil of possession precisely because the anvil of legal title rings hollow for the 3rd to 7th Defendants/Respondents/Respondents. But possession that the law has stripped of legal effect is not evidence of title; it is, at most, evidence of the very wrong the continued occupation of State land without right which the families now ask this Court to reward.

Nor can the recitals of Exhibits 7 and 9, the references in those instruments to the “interested families” in occupation supply the deficiency, as both dissents suppose. My brethren read into the State’s acknowledgment of the families’ occupation a recognition of some subsisting proprietary right, which the release then perfected. That reading cannot stand, for two reasons. First, the State could not recognise a right which its own acquisition had extinguished. The State could not have acknowledged as existing an interest which by the acquisition, is destroyed.

Thus, the most that the recitals can bear is a recognition of the brute fact of occupation, not of any right underlying it. Secondly, and more fundamentally, even on the most generous reading, the recitals contemplate a future release to the families; they speak, in the language of Exhibit 7, of land to be “released to the land owners,” and of the State’s “policy objectives to return part of excess land.” This is the language of a benefaction yet to come, not of a title already held. It confirms, rather than contradicts, the central fact: that, until the release, the families held nothing the law would recognise. A promise of future release is not a present estate, and an instrument that looks forward to the return of land is the clearest possible admission that, at the moment it speaks, the land had not yet returned.

There is in my view, a misapplication of the doctrine of feeding the estoppel and there, with all due respect, the least defensible. The legal incident cannot be overlooked. It ought to be correctly applied and that, with all due deference has not been done by my brethren in the minority. The grants to the 3rd to 7th Defendants/ Respondents/Respondents were the alienation of land which a statute had vested in the State and placed beyond the Stool’s power to convey. They were, on the authority of the statute which the 3rd to 7th Defendants/Respondents/Respondents acknowledge void ab initio and statutorily incapable of being fed.

Having stated the exception that governs the case, it cannot be passed by under the guise of protecting a possessory right of the 3rd to 7th Defendants/Respondents/Respondents founded on illegality against the interest of the State however long, just as no invocation of the provisions of a foreign statute will avail the said 3rd to 7th Defendants/Respondents/Respondents any relief especially where as in this case, the transfer is forbidden by law.

The settled jurisprudence on doctrine of estoppels is that, it protects a transferee who acted on an “erroneous representation” of the transferor’s authority. However, our courts have consistently held that, it has no application where the transferee knew of the want of title, nor where the transfer was of a kind the law prohibits. Whether the doctrine operates automatically or at the grantee’s election is therefore beside the point; for on neither side of the comparison does it operate at all upon a grant that was void for illegality and taken with knowledge. To borrow the machinery of automatic transmission while ignoring the condition that must first be satisfied before there is anything to transmit, is to start the engine of the doctrine without asking whether it has any lawful cargo to carry.

There is a further and more candid difficulty. The 3rd to 7th Defendants/Respondents/Respondents by their own pleadings recognise that, the grants to the families were made when the Stool had no title. Therefore, at the decisive moment no court should decline to call those grants by their legal name of illegal transaction. It is erroneous to treat them as which were merely premature, or imperfect, or made by a grantor who had “not the legal estate or any interest whatsoever,” and which the after-acquired title then fed and perfected. To describe the alienation of statutorily vested State land as a mere want of legal estate, curable by later acquisition, is to mistake an illegality for an imperfection. A grantor who conveys land he does not yet own, but is free in law to acquire and convey, makes an imperfect grant which equity may perfect.

A grantor who conveys land which a statute has vested in the State and forbidden him to touch commits an unlawful act, and equity does not perfect unlawful acts; it refuses them its aid altogether. That this Court must decline to do, for the reasons I have given under the first head of this opinion, and for the further reason that to do so would be to grant, through the back door of equity, the very immunity from an Act of Parliament which this Court has variously held that, no judge has any authority to grant.

On the other hand, to retreat from the field of law to the field of conscience, to rest a conclusion upon the maxim that equity will not suffer a wrong to be without a remedy is in the context of the undisputed facts as deduced from the pleadings of the 3rd to 7th Defendants/Respondents/ Respondents manifestly problematic. The maxim that equity will not suffer a wrong to be without a remedy is not a roving commission to do what seems fair. It presupposes a wrong recognised by law and a remedy consistent with law, and it has never been authority for conferring a proprietary right upon those whose own root is an illegality.

To answer the hard legal question, can a void grant be saved by a resort to a general maxim of fairness? The answer to the interrogatory is certainly in the negative. The 3rd to 7th Defendants/Respondents/Respondents took grants of land they knew to be vested in the State. Their speculative hope of a future release, and the disappointment of the speculation is not a wrong which equity is bound to remedy. He who seeks equity must do equity, and he who comes to equity must come with clean hands; the families come with neither.

I would with respect add a word upon the matter of notice, upon which both dissents place much weight. My brethren labour to show that the Plaintiff/Appellant/ Appellant, through its Company Secretary Mr. Kwame Gyan, had knowledge of the families’ occupation, and they conclude from this that the Plaintiff/Appellant/ Appellant cannot be an innocent purchaser. But knowledge of occupation is not knowledge of a competing legal interest, where the law has extinguished the interest and left only the occupation. One cannot have notice of a right that does not exist.

More to the point the 3rd to 7th Defendants/Respondents/ Respondents families’ case has notice precisely backwards. The doctrine of feeding the estoppel, where it operates at all, protects the innocent grantee and is denied to the grantee who took with notice of the prior want of title. The grantees who took with full knowledge that the Stool had no title were the 3rd to 7th Defendants/Respondents/Respondents themselves, who admit that knowledge in paragraph 5 of their Amended Statement of Defence and proclaim it in the recitals of their own leases. If notice defeats the equity, it is their equity that is defeated; and the dissents, in pressing notice against the Plaintiff/Appellant/Appellant, have unwittingly armed the very principle that destroys their own conclusion.

It only remains to say why the position of the 1st and 2nd Defendants/Respondents/Respondents is, on this analysis, untouched. Their parcel rests not upon naked ancestral occupation but upon a Registered Title Land Certificate No.T.D0558 acquired by assignment, perfected by registration, confirmed by a search, and vindicated in possession through process of the court. They took, upon the evidence, after diligent inquiry and without notice, of any adverse and subsisting interest, and they developed the land on the faith of a registered root.

The case of the 1st and 2nd Defendants/Respondent/ Respondents is one of a bona fide purchaser for value without notice, whom equity does protect. The protection accorded to them, far from being inconsistent with the denial of relief to the 3rd to 7th Defendants/Respondents/ Respondents, is its mirror image. The law shelters the honest and the diligent and withholds its shelter from the knowing dealer in forbidden land. The two results are not in tension; they are the same principle, justly applied to two different sets of facts.

CONCLUSION

For these reasons, in addition to those given by my revered sister Bartels-Kodwo (Mrs.), JSC in the lead opinion, I would allow the appeal to the extent she has indicated, set aside the majority decision of the Court of Appeal, and adopt the orders she proposes, including the preservation of the possessory right of the 1st and 2nd Defendants/Respondents/Respondents, whose position, resting upon a registered title and an honest acquisition without notice stands upon an entirely different and defensible footing from that of the 3rd to 7th Defendants/Respondents/Respondents. The contrary views, resting as they do upon a possession which the compulsory acquisition of 1940 had already extinguished, and upon a doctrine of feeding the estoppel which cannot, in law, be made to feed an illegality, do not in my respectful view withstand examination; and I have set out at some length why this is so. I am conscious that the Court is not unanimous in this appeal, and I have not lightly differed from the contrary view.

Finally let me say with emphasis that, my position in this appeal is anchored by the principle at stake which in my view, is one which traverses and reaches far beyond this dispute, for it determines whether the statutory vesting of land in the State may be circumvented by those who deal in it before its release, in the hope that equity will afterwards bless their known illegal dealings which is suggestive of dishonesty and self-inflicted injury.

To that question, the answer must be no and I say so without reservation if we must live in an orderly society. The result is one in which law and equity, far from being at variance, are at one: the honest purchaser for value is protected, and the knowing dealer in forbidden and encumbered land is left to the consequences of the bargain he chose to make. And I respectfully so hold.

(SGD.) I. O. TANKO AMADU

(JUSTICE OF THE SUPREME COURT)

DISSENTING OPINIONS

GAEWU, JSC:

The genesis of this proprietary dispute traces back to 1940. By a Certificate of Title dated March 7, 1940, the colonial administration of the Gold Coast compulsorily acquired an expansive tract of land measuring approximately 2,570.05 acres from the Nungua Stool. This territory, popularly designated and known as the “Nungua Farms,” was earmarked for animal husbandry and allied agricultural enterprises, and was duly registered in the Deeds Registry as No. 214/1940.

By operation of Article 257 of the 1992 Constitution of the Republic of Ghana, this compulsorily acquired territory transitioned into public land, vested in the President for and on behalf of, and in trust for, the people of Ghana. Decades later, a significant policy shift culminated in a lease executed on August 12, 2010. By this instrument, the President of the Republic, acting through the Chairman of the Lands Commission, demised a portion of the public land comprising 976.466 acres (equivalent to 374.82 hectares) back to the Nungua Stool for a term of ninety-nine (99) years, effective from the date of execution.

The Plaintiff/Appellant/Appellant (hereinafter referred to as “the Plaintiff”) initiated the present action by an amended Writ of Summons and Statement of Claim, seeking against the Defendants/Respondents/Respondents (hereinafter referred to as “the Defendants”) the following reliefs:

A declaration of title to all land more particularly described I on the Statement of Claim

Recovery of possession

Perpetual injunction restraining the defendants, their agents, privies, servants, assigns and any person(s) deriving any interest through them, from entering or dealing with the said land in any manner that interferes with the lawful possession and occupation of the plaintiff.

Damages for trespass

Cost, inclusive of legal fees; and

Any other relief(s) which this honourable court deems fit or considers just.

In describing the identity of the disputed lands, the Plaintiff set forth the metes and bounds of two contiguous parcels under paragraphs 23 and 24 of its amended Statement of Claim:

The First Parcel: All that piece of land known as site for Sino Africa Development Ltd, Borteyman in the Tema Municipal Assembly in the Greater Accra Region of the Republic of Ghana boundary whereof commencing at a pillar marked GCG EP.11/38/4 which same pillar serves as a point of departure and runs on a bearing of 074’28’ for 2655.3 feet to which same pillar forms part of the boundary of the aforementioned site whereof commencing at a pillar marked GCG EP1138 FIS 1 and thence on a bearing of 270’00’ for 588.9 feet to a pillar GCG EP1138 FIS 2 and thence on a bearing of 000’00’ for 2206.9 feet to a pillar marked GCG EP1138 FIS 3 and thence on a bearing 090’00’ for 125.0 feet to a pillar marked GCG EP1128 SACL 1A and thence on a bearing of 000’00’ for 627.7 feet to a pillar marked GCG EP1138 SACL 1 and thence on a bearing of 000’00’ for 1174.5 feet to a pillar marked GCG EP1138 SACL 2 and thence on a bearing of 092’55’ for 172.6 feet to a pillar marked GCS EP11/54/3 and thence on a bearing of 76’40’ for 1044.1 feet to pillar marked GCS EP11/38/A5/2 and thence on a bearing of 75’54’ for 765.2 feet to a pillar marked GCG EP11/38/A5/3 and thence on a bearing of 173’53’ for 789.0 feet to a pillar marked GCG EP 11/38/A5/4 and thence on a bearing of 189”56” for 824.3 feet to a pillar marked GCG EP 11/38/A5/5 and thence on a bearing of 106’21’ for a 982.5 feet to a pillar marked GCG EP11/38/A6/1 and thence on a bearing of 108’13’ for 1538.3 feet to a pillar marked GCG EP11/38/A6/9 and thence on a bearing of 107’22’ for 1074.5 feet to a pillar marked GCG EP 11/38/A1/14B and thence on a bearing of 184’20’ and for 129.7 feet to a pillar marked GCE EP11/38/A1/13A and thence on a bearing of 249’17’for 415.6 feet to a pillar marked GCEP 11/38/A1/13 and thence on a bearing of 247’18’ for 451.2 feet to a pillar marked GCEP 11/38/A1/12 and thence on a bearing of 247’46’ for 540.0 feet to a pillar marked GCG EP 11/38/A1/11 and thence on a bearing 248’09’ for 591.0 feet to a pillar marked GCD EP11/A1/9 and thence on a bearing 248’18’ for 642.1 feet to a pillar marked GCG EP 11/38/A1/8 and thence on a bearing of 248’18’ for 1178.0 feet to a pillar marked

GCG EP11/38/FIS/1 and thence on a bearing of 270’00’ for 779.63 feet to a pillar marked GCG EP/11/28/FIS/1 which marks the point of commencement and thus, containing an area of 294.520 acres or 119.192 hectares.

The Second Parcel: All that piece and parcel of land known as site for Sino Africa Development Ltd, Borteyman in the Tema Municipal Assembly in the Greater Accra Region of the Republic of Ghana, the boundary hereof commencing at a pillar marked GCG EP/11/38/4, which same pillar serves as a point of departure, containing an area of 34.357 acres or 13.904 hectares.

The case of the Plaintiff

The structural foundation of the Plaintiff’s claim rests on two distinct subleases allegedly obtained from the Nungua Stool on August 16, 2010. These concurrent instruments granted the Plaintiff a combined acreage of 328.877 acres for a term of ninety-five (95) years. The Plaintiff maintains that it acquired this vast estate for the commercial and socio-economic purpose of developing affordable housing units for public and civil servants.

The Plaintiff asserts that at the time of this acquisition, the land was vacant. It claims to have taken immediate physical possession, erected boundary pillars, and constructed ten single-room structures in 2012 to visibly demarcate its boundaries. By 2013, the Plaintiff had allegedly enclosed the entire acreage with a boundary wall, established its corporate headquarters on a section thereof, and exercised uninterrupted, overt acts of ownership.

The catalyst for this litigation, according to the Plaintiff, occurred when the 1st Defendant allegedly entered the land without consent and demolished a substantial portion of the Plaintiff’s boundary wall. In justification, the 1st Defendant asserted proprietary rights flowing from a High Court judgment in Suit No. LD/1228/2017 (Royal Bell Investments Ltd v. Nii Abotsi Borlabi Borketey Nkpa). The Plaintiff vehemently denounces this judgment, contending it was obtained in absentia regarding the Plaintiff, that it was never a party to that suit, and that the decree cannot bind its validly acquired 328.877-acre estate.

The Plaintiff further pleads that the 2nd Defendant, a corporate developer, claims an assignment of the 1st Defendant’s interest through a Deed of Assignment dated June 21, 2021. Operating in tandem, the 1st and 2nd Defendants have allegedly encroached upon 30 acres of the Plaintiff’s land. Meanwhile, the 3rd to 7th Defendants assert competing customary titles as indigenous occupants, tracing their ancestry to historic grants made by the Nungua Stool in the year 2000.

The Case of the Defendants

Per contra, the Defendants admit that the disputed land was included in the 1940 statutory acquisition for agricultural purposes. However, they introduce a crucial historical reality: long before the 1940 acquisition, indigenous subjects of the Nungua Stool belonging to the Bortey We Clan were in settled, active, and undisturbed occupation of the land. They had established the ancient village of Borteyman, maintained ancestral burial grounds, and cultivated the land. Crucially, these indigenous subjects maintained physical occupation long after 1940 without any eviction or interference from the State.

In recognition of this unbroken ancestral possession, the Nungua Stool regularized the occupancy of the Nii Abotsi Borlabi Family of Bortey We by formalizing a ninety-nine (99) year lease dated May 28, 1996, covering approximately 31.37 acres. This family subsequently secured Land Title Certificate No. TD 0090, Vol. 019, Folio 58, dated October 7, 2015. The family assigned this interest to the 1st Defendant, which obtained Land Title Certificate No. TD0558, Vol. 019, Folio 58, dated June 10, 2016, and subsequently assigned the same to the 2nd Defendant on June 25, 2021, for immediate real estate development.

The 1st defendant explains that during the course of these proprietary events, an internal dispute arose when certain members of the Nii Abotsi Borlabi family encroached upon the assigned land and attempted to alienate portions to third parties. This internal friction compelled the 1st defendant to institute High Court action in Suit No. LD/1228/2017, titled Royal Bells Investment Ltd v. Nii Abotsi Borlabi Borketey Nkpa. This matter was eventually settled amicably; the terms of settlement filed on December 22, 2017, were adopted by the High Court as a consent judgment on April 4, 2018 and was executed through a Writ of Possession on June 30, 2021, lawfully installing the 1st Defendant into quiet enjoyment. Similarly, the 3rd to 7th Defendants are indigenous subjects whose long-standing possessory holdings were formalized by the Nungua Stool through leases dated February 25, 2000, May 1, 2000, and June 1, 2000, respectively.

The centerpiece of the Defendants’ case is a tripartite settlement agreement dated September 25, 2008 (Exhibit 7), executed between the Government of Ghana, the Nungua Stool, and its indigenous subjects. Recognizing extensive encroachment and historical realities, the State agreed to release portions of the land back to the Stool and its subjects. This executive intent was subsequently perfected by the formal lease of August 12, 2010.

Relying on this legal foundation, the Defendants launched a multi-pronged counterclaim seeking:

A declaration of title in favour of the 2nd defendant company over all that piece or parcel of land with the structures thereon situate, lying and being at Borteyman covered by Land Title Certificate No. TD0558, Vol 019, Folio 58, dated 10th day of June 2016 covering 29.791 acres which was duly assigned to it by the 1st defendant.

A declaration of title in favour of the 3rd, 4th and 5th defendants families to all that piece or parcel of land with the structures thereon situate, lying and being at Borteyman, Nungua, Accra; on the North measuring 2,488.2 feet more or less bounded by Ashaley Botwe-Nungua Farm Road, on the East measuring 2,079.5 feet more or less bounded by lessor’s land, on the South measuring 1,614.8 feet more or less bounded by the Accra-Tema motorway, and on the West measuring 3, 651.0 feet more or less bounded by lessor’s land/stream containing an approximate area of 117.89 acres or 47.71 hectares.

A declaration of title in favour of the 6th defendant’s family to all that piece or parcel with the structures thereon situate, lying and being at Borteyman, Nungua Farms, Nungua, Accra; on the North-West measuring 1,105.9 feet more or less, North East measuring 802.1 feet more or less bounded by Nungua Farm Road/Nii Abotsi Borlabi Family/lessor’s land, on the East – measuring 1,245.6 and 2,384.8 feet more or less bounded by lessors land/Nii Adjogah Annang & other families, on the South measuring 1,206.4 feet more or less bounded by lessor’s land and on the West measuring 892.0, 611.8 and 1,098.9 feet more or less bounded by lessor’s land/Fio Borteye & Boye Tawiah families/lessor’s land containing approximate area of 151.15 acres or 61.17 hectares.

A declaration of title in favour of the 7th defendant’s family to all that piece or parcel of land with the structures thereon situate, lying and being at Borteyman, Nungua Farms, Nungua, Accra in the Tema Metropolitan District of the Greater Accra Region; on the North measuring 450.5 and 805.1 feet more or less bounded by Nungua Farm Road, on the East measuring 801.9 and 820.7 feet more or less bounded by lessor’s land, on the South measuring 1,269.1 feet more or less bounded by the Accra-Tema motor way and on the West measuring 2,081.1 feet more or less bounded by Nii Adjogah Annang & other families containing an approximate area of 35.04 acres or 14.18 hectares.

A declaration that the purported grants of the land in dispute to the plaintiff company by the Nungua Stool after the earlier grant of same to the defendants is void ab initio.

An order annulling all the purported leases granted by the Nungua Stool to the plaintiff company.

An order directed at the Lands Commission to expunge from its records any purported registration of the land in dispute in favour of plaintiff company forthwith.

Perpetual injunction restraining the plaintiff herein, its agents, assigns, servants, privies, workers, independent contractors or any other persons claiming through it or authorised by it from entering, developing, occupying or interfering in any manner with the land in dispute

Substantial damages

Punitive, exemplary and aggravated damages.

Special damages:

– cost of 2nd defendant’s demolished fence wall of GHC220,000.00

– Expenditure incurred due to the order of the injunction at the instance of the plaintiff company.

l) Cost inclusive of legal fees

Any other reliefs that may be just in the circumstance.

At the close of pleadings, the following issues were set down for trial:

Whether or not the grant of the land in dispute to the Defendants by the Nungua Stool is valid.

Whether or not the subsequent grant of the land in dispute to the Plaintiff company by the Nungua Stool is void ab initio

Whether or not the plaintiff or the 2nd Defendant is a bona fide purchaser for value without notice

Any other relevant issues arising from the pleadings.

Following a comprehensive trial utilizing witness statements and an array of documentary exhibits, the High Court dismissed the Plaintiff’s claims in its entirety and entered judgment for the defendants. The trial court declared the Plaintiff’s leases void ab initio, ordered the Lands Commission to expunge the plaintiff’s entries, and declared the 2nd defendant, alongside the 3rd to 7th defendants’ families, as the legitimate titleholders/lessees of their respective acreage. A perpetual injunction was clamped upon the plaintiff, GHC 100,000.00 in damages and GHC 50,000.00 in costs all against the Plaintiff.

In evaluating the evidence, the trial judge rejected the Plaintiff’s narrative of continuous physical possession. On the issue of whether the plaintiff qualified as a bona fide purchaser for value without notice, the trial judge, guided by Hydrafoam Estates Ghana Ltd v. Owusu (per lawful attorney) Okine & Ors. [2013-2014] 2 SCGLR 1117, concluded that the Nungua Stool lacked the requisite capacity to make a valid grant to the Plaintiff in 2010.

Crucially, the court found that Mr. Kwame Gyan, who witnessed the 2008 State-Stool settlement agreement (Exhibit 7) on behalf of the Minister, was the exact same individual who executed the Plaintiff’s subleases as Company Secretary. This overlapping involvement completely defeated any claim that the Plaintiff was a bona fide purchaser without notice.

Furthermore, the trial judge applied the equitable doctrine of “feeding the estoppel”, holding that the Stool’s prior grants to the Defendants between 1996 and 2000 created an unbreakable estoppel against the Stool. Consequently, when the State retroactively released the land to the Stool in 2010, that newly acquired legal interest automatically “fed” and perfected the Defendants’ prior grants, leaving the Stool with no residual title to convey to the Plaintiff.

Aggrieved by this decision, the Plaintiff appealed to the Court of Appeal on the grounds that the judgment was against the weight of evidence and that the trial judge erred in validating the defendants’ grants. By a 2-to-1 majority decision, the Court of Appeal dismissed the appeal and affirmed the judgment of the High Court.

Still dissatisfied, the Plaintiff has mounted a final appeal before this Court by a notice of appeal dated March 27, 2025, seeking that the judgment of the Court of Appeal dated the 27th of March 2025 be reversed and judgment entered in his favour.

Grounds of Appeal before this Court

By an amended notice of appeal filed pursuant to leave of this court, the plaintiff appealed on the following grounds:

The judgment of the learned justices in the majority of the Court of Appeal is against the weight of evidence adduced at the trial.

The learned justices in the majority of the Court of Appeal erred in their application of the doctrine of feeding the estoppel to validate the respondents’ respective acquisitions from the Nungua Stool.

Particulars of Error

At all times, the respondents had actual and/or constructive knowledge/notice of the defective title of the Nungua Stool in the land which was still under the control and compulsory acquisition of the state.

Since the respondents knew of the defective authority of the Nungua Stool to convey their respective lands to them, the principle of feeding the estoppel was wholly inapplicable to their respective acquisitions.

C) The learned justices in the majority of the Court of Appeal erred in holding that the appellant’s Exhibits A1 and B1 were inadmissible for not being stamped.

Particulars of Error of Law

Whether or not the documents were unstamped was an issue of fact which was never raised at the trial court, or even at the Court of Appeal, and the appellant was not given the opportunity to respond to same

There is a strong presumption, that those indentures were stamped since the interest of the appellant in the same had been registered with the Lands Commission. A condition to such registration is stamping.

D) The majority justices of the Court of Appeal misdirected themselves in holding, that, the appellant failed to prove the identity of its land.

Particulars of Misdirection

The court failed to observe, that the identity of the appellant’s land was never in dispute and the same not controverted.

There was sufficient evidence on record that that put beyond dispute, the exactitude of the lands claimed by the appellant.

E) The learned justices in the majority of the Court of Appeal committed a grave error of law in holding that an indenture without a site plan signed by the Director of Surveys or his authorised representative is invalid for violating Regulation 3(1) of the Survey (Supervision and Approval of Plans) Regulations, 1988 (LI 1444).

Particulars of Error of Law

Regulation 3(1) of LI 1444 regulates site plans and not indentures

LI 1444 is only applicable to a site plan being used for purposes of registration of title to land.

The court misconstrued the decision of the Supreme Court in Nortey (No. 2) vrs. African Institute of Journalism and Communication & Ors. (No. 2) [2013-2014[ SCGLR 703 which decision never held that an indenture that did not contain a site plan executed by the Director of Survey or his authorised representative is invalid.

F) The learned justices in the majority of the Court of Appeal erred when they held that the respondent’s acquired a valid interest in the land in dispute from the Nungua Stool.

Particulars of Error

The Nungua Stool had no interest in the land in dispute at the time it purported to alienate the same to the respondent.

The only authority capable of alienating the land at the time of the purported acquisition by the respondent was the government of the Republic of Ghana acting through the Lands Commission and not the Nungua Stool.

Having painstakingly scrutinized the record of appeal, I am of the firm conviction that Grounds ‘B’ and ‘F’ are central and entirely dispositive of this appeal based on the facts and the evidence available. These grounds are so structurally intertwined that they will be evaluated concurrently.

Analysis of the Merits

The core of the Plaintiff’s legal argument is a strict interpretation of nemo dat quod non habet: because the land was fully vested in the State from 1940 until 2010, the Nungua Stool had no alienable legal estate to convey when it executed the Defendants’ leases between 1996 and 2000. Therefore, the Plaintiff contends that the lower courts’ reliance on the doctrine of “feeding the estoppel” constitutes a reversible error of law.

I standardly disagree with this narrow contention. The doctrine of feeding the grant by estoppel operates at the intersection of equity, statutory registration, and common law conveyancing. It dictates that where a grantor purports to convey or demise an estate which he does not currently possess, he is permanently estopped from later disputing the validity of that grant. If that grantor subsequently acquires the true legal estate, equity fastens upon the grantor’s conscience. Rather than allowing the grantor to retain the after-acquired interest or plead their original lack of title to evade obligations, equity treats the newly acquired title as instantly inuring to the benefit of the original grantee.

As Lutterodt, J.A. (as he then was) famously articulated in the locus classicus Serwah v. Adjen II [1992] 1 GLR 296 quoting Lord Moulton in Rajapakse v. Fernando [1920] AC 892:

“Where a man conveys or demises land in which he has not the legal estate or any interest whatsoever, he estoppes himself from thereafter disputing the validity of such grant or demise. In other words, there can be no reason for him to turn round later and argue that he passed no valid title. More importantly, when he subsequently acquires the estate or interest which he lacked at the time of the grant, there becomes vested in the grantee, that estate or interest which he formally enjoyed by estoppel only. In other words, the subsequent acquisition of the interest by the grantor inures not to his benefit but to the benefit of the grantee.”

This equitable principle was reinforced in Nana Baffour Gyawu v. Yaw Adu Gyamfi [2018] DLCA 5560, where his Lordship Aduama Osei J.A noted that

“…where a person, not being the owner of property, has fraudulently or erroneously represented himself as the owner of the property or as having authority to transfer an interest in the property and has purportedly made the transfer to a transferee who has purchased in good faith and for consideration, the rights of the transferee do not diminish. In this situation, the transferee has the option of rescinding the contract or keeping it alive. If he opts to keep the contract alive and subsequently the transferor acquires the interest he purported to transfer but which he did not have at the time of the sale, the interest will automatically go to the transferee. The basis of this are the law of estoppel, and the equitable principle that if a person promises more than he can perform, he must fulfil the promise when he gets the ability to do so.”

A critical comparative distinction exists regarding how this doctrine operates. Under Section 43 of the Indian Transfer of Property Act (TPA), 1882, the transition of title does not occur automatically; it operates strictly at the option of the transferee, who can choose to compel the delivery of the property or walk away. Conversely, under English common law and the law of Ghana, the passing of title is automatic and instantaneous. The moment the Nungua Stool executed the formal lease with the State on August 12, 2010, the legal estate did not sit with the Stool for even a fleeting second. It was immediately drawn downward to “feed” and validate the empty root of title previously granted to the Defendants between 1996 and 2000. The Stool was a mere conduit through which the legal interest passed to perfect the existing grants.

While the doctrine is robust, it is subject to strict preconditions and exceptions:

Misrepresentation and Consideration: The transferor must have made a fraudulent or erroneous representation regarding their ownership, and the transfer must be for valuable consideration, as equity will not feed a gratuitous gift.

Subsisting Contract: The contract of transfer must still exist at the time the transferor acquires the interest, rather than having been previously rescinded or canceled.

Statutory Incompetency: If the original transfer was void ab initio such as a transfer executed by a minor, a legally insane individual, or a transfer statutorily prohibited from being alienated the doctrine cannot later validate the transaction.

Bona Fide Purchasers: Equity will not punish an innocent third party. If a grantor acquires a valid title and immediately sells that land to a subsequent bona fide purchaser who buys it in good faith, for consideration, and without notice, the original transferee loses their right to claim the property and is relegated to a personal claim for damages against the grantor.

The Plaintiff argues that the Defendants cannot benefit from this doctrine because they had notice of the Stool’s lack of capacity during the 1996–2000 grants. However, the record reveals that the Defendants were indigenous subjects exercising ancient, continuous, and undisturbed ancestral occupation of Borteyman. They approached their own Stool to regularize their historical possession in anticipation of the State’s policy to return excess lands.

Can the Plaintiff, then, claim to be an innocent subsequent bona fide purchaser without notice? The evidence completely refutes this.

First, the record establishes that Mr. Kwame Gyan, the Plaintiff’s Company Secretary who executed the Plaintiff’s 2010 subleases, was the very government official who acted as the witness for the Minister of Lands when the 2008 settlement agreement (Exhibit 7) was signed. He possessed actual, first-hand knowledge that the State was releasing the land not as an unencumbered gift to the Stool’s institutional apparatus, but explicitly to the “Nungua Stool and All Interested Families” in actual occupation.

Second, on April 17, 2009, the Defendants published a public notice in the Daily Graphic, warning the Stool against alienating the released lands away from the indigenous occupants. This publication to my mind constituted potent constructive notice to the general public, and specifically to the Plaintiff and its corporate officers.

Again, the test of Exhibits 7 (“Agreement on the Revision of State Acquired Lands in the Greater Accra Region”), executed on September 25, 2008, is highly revealing. See pages 146 to 148 of volume 2 of the record of appeal. And for its full effect, I would like to outline the full content of the Agreement, Exhibit 7, as follows:

“This agreement is made this 25th day of September 2008 between the government of the Republic of Ghana represented by the Minister of Lands, Forestry and Mines of the one part (hereinafter referred to as “First Party”) and the Nungua Stool and All Interested Families represented by King Odaifio Welentsi III, Numo Borketey Larweh Tsuru, Gborbu Wulomor of the other part (hereinafter referred to as “Second Party”). (emphasis mine)

WHEREAS under certificate of title dated 1940, a total of 2,540 acres of land which piece or parcel of land which is more particularly described in the 1st Schedule as well the site plan which is also hereto attached to this agreement, was acquired by the State from the Nungua Stool.

WHEREAS the said piece or parcel of land was sub-divided into two parts; the northern part allocated to the University of Ghana for the purposes of animal husbandry and the southern part to the Ministry of Agriculture, also for the purposes of animal husbandry.

WHEREAS the Stool has granted portions of the said land to developers with the result that there has been a massive encroachment upon the said land.

WHEREAS the State has also allocated portions of the said piece or parcel of land for the development of a race course as well as affordable housing units

WHEREAS full compensation was paid by the State for the acquisition of the said piece or parcel of land and

WHEREAS the parties herein have agreed to an amicable and final settlement of all the issues arising from the acquisition and the subsequent encroachment, including discontinuance of all pending court cases, it is hereby mutually agreed as follows:

1. Pursuant to the said agreement, all that piece or parcel of land more particularly described in the 2nd schedule hereto shall remain state land free from all encumbrances.

2. The State reserves the right to apply the said piece or parcel of land described in the 2nd schedule to any relevant public purpose as determined by the State.

3. That the within-named land owning Stool/Clan/Family has irrevocably undertaken, agreed and accepted to waive any present or future claims and/or demands in respect of the said piece or parcel of land.

4 That as a goodwill gesture and in line with government policy objectives to return part of excess land acquired by the State to the original owners, to engender trust and cooperation between the State and land owing groups as well as promote the optimal use of land, all that piece or parcel of land measuring approximately 1,016 acres comprising of 40% (forty percent) of the total land acquired, excluding all portions with state assets and infrastructure and more particularly described in the 3rd schedule hereto shall be released to the land owners free from all encumbrances. (emphasis mine)

5. That the development of the returned lands shall be in accordance with an approved planning scheme prepared for the land.

6. That until a development scheme has been prepared and duly approved for the area, the 2nd party undertakes not to develop the land described in the 3rd schedule.

7. That for the avoidance of doubt, in the event of a breach by the 2nd party of its obligations under paragraph 6, the State shall be entitled to re-enter and forfeit the grant of land hereby made.

8. The government signs this agreement verily believing the representation by the other party that they are the true owners of the land and that the owner agrees to indemnify the government should any other Stool, Family or Party successfully claim against the government for wrongfully handing over its lands to another party.

1st, 2nd and 3rd schedule hereinbefore referred to:

1st schedule

Annex 1

2nd schedule

Annex 2

3rd schedule

Annex 3

In witness whereof the partis hereto have hereunto set their hands the day and year first above written

Signed

Hon. Minister for Lands, Forestry and Mines

In the presence of Kwame Gyan (Signed)

Signed by

Nii Odaifio Welentsi III

In the presence of Nii Afotey Srawah II (Signed)

Signed by

Numo Borketey Larweh Tsuru, Gborbu Wulomo, Nungya

In the presence of Stephen Akwetey (signed)

Clearly, from the Agreement Exhibit 7, the state explicitly recognized that the land was being returned not merely to the institutional stool, but to the Stool alongside all families in actual occupation who had historically settled on it. This executive recognition is further fortified by Exhibit 7A (memorandum dated 7th October, 2008) wherein the government noted that the land was being released to the Stool and all families concerned.

Under cross-examination, one Nii Odaifio Mensah (the 3rd Defendant) confirmed that while they acknowledged strict state ownership between 1940 and 2010, their ancestors had farmed and occupied these enclaves continuously without challenge. When they learned in the 1990s that state-acquired lands were to be released back to their respective families, they approached their Stool to regularize and secure formal documentation.

Appearing at page 168 of Volume 3 of the Record of appeal as follows:

“Q. You have testified at paragraph 6 of your witness statement that the land you are now claiming to belong to your family and to the families of the 4th and 5th defendant’s forms part of the larger tract of land compulsorily acquired by the then colonial government on the 7th of March 1940. Do you stand by that testimony?

A. That is so

Q. you will then agree with me that from the 7th of March 1940 the lands your family and the families of the 4th and 5th defendants are now claiming to be yours became the sole property of the government?

A Yes, I agree with you.

Q. You also agree that the government sole ownership of the lands extended from 1940 until a release was created for the Nungua Stool in the year 2010. Correct?

A That is so. But Borteyman existed long ago before the government approached the Nungua Stool and acquired its land. At the time, Borteyman was a town on its own with its Chief, cemetery and many other things. Also at the time, the indigens were mainly farmers and also raring cattle.

Q. But you do agree that until the lease was created for the Nungua Stool in 2010, the government of Ghana was the only entity that could claim ownership over the land?

A. I agree with you. But at the time the land that the government acquired was solely for the government and the land that our ancestors were farming on were also solely for them.

Q. It is your testimony today that the land that your ancestors were farming between1940 and August 2010 was solely for your ancestors?

A. What we are saying is that our ancestors were farming on that portion of land with no challenge from anybody until the late 1990s because we did not see any document saying that the government had acquired that portion of land. In 1990s, when we heard that all the government acquired lands were to be released to the respective families, we also approached the Nungua Stool because we know that portion of land belongs to us.

Consequently, once Exhibit 7 was executed by the representatives of the Nungua Stool acting on behalf of both the Stool and the families occupying the land, it became palpably wrong, unjust, and unlawful for the Nungua Stool to go behind these families and grant the very land they occupied to a third party, the Plaintiff. By operation of law, the land must go to the families in occupation.

The Nungua Stool and its representatives are estopped by their own statements and conduct from receiving the land on behalf of the occupying families and subsequently attempting to divest them of it. Section 26 of the Evidence Act, 1975 (NRCD 323), which codifies Estoppel by Own Statement or Conduct, provides:

“Except as otherwise provided by law including a rule of equity, when a party has, by his own statement, act or omission, intentionally and deliberately caused or permitted another person to believe a thing to be true and to act upon such belief, the truth of that thing shall be conclusively presumed against that party or his successors in interest in any proceedings between that party or his successors in interest and such relying person or his successors in interest”.

As observed in Social Security Bank v. Agyarkwa [1991] 2 GLR 192, at holding 1:

“the principle of estoppel by conduct was applicable only in those circumstances where it was just to invoke it, namely in those circumstances in which it will be unjust, inequitable or unconscionable to permit a party against whom a plea of estoppel by conduct was raised to go back on his word or conduct. Consequently, in invoking a plea of estoppel by conduct, one has to have regard to the circumstances surrounding the particular conduct which was the subject of the plea. Invariably, each case has to be decided on its own peculiar fact”.

By the clear terms of Section 26 of NRCD 323, the truth of this state of affairs is conclusively presumed against the Stool and its successors-in-interest. The Plaintiff herein is a direct successor-in-interest to the Nungua Stool. Even if it were technically wrong for the Nungua Stool to convey portions of the land to the Defendants at a time when the Stool lacked legal title, it remains totally unacceptable and legally unsustainable for the Stool to have subsequently conveyed the same land to the Plaintiff. The Stool was fully aware that its indigenous subjects were actively negotiating for the release of these lands through the Stool itself, and it had already executed leases in their favour.

The Stool’s conduct in representing these families (3rd to 7th defendants) during negotiations, only to go behind them and grant their lands to the plaintiff, is entirely wrongful. Upon the formal release of the land by the state, the title automatically inured exclusively to the benefit of the existing grantees; the Defendants’ families and left the Stool with nothing to convey to the Plaintiff.

For the comprehensive reasons set out above, I find no dynamic or legal basis upon which to disturb the concurrent findings of fact and conclusions of law arrived at by the trial High Court and affirmed by the majority decision of the Court of Appeal dated March 27, 2025.

The final appeal brought by the plaintiff fails in its entirety and is hereby dismissed.

(SGD.) E. Y. GAEWU

(JUSTICE OF THE SUPREME COURT)

AMALEBOBA JSC:

INTRODUCTION AND BACKGROUND:

This is an appeal against the decision of the Court of Appeal, which affirmed the Judgment of the High Court entered in favour of the Defendants /Respondents/ Respondents on their counterclaim and dismissed the claim of the Plaintiff/ Appellant /Appellant. I have read the majority decision granting the appeal in part. I am of the view that the appeal should fail entirely and be dismissed. I will in this Judgment, give my reasons for the position I have taken. The parties will maintain their designations as at the commencement of the suit in the trial High Court.

The contest which has occasioned this appeal is a dispute over land situate at Borteyman, Nungua, in the Greater Accra Region of Ghana and popularly referred to as Nungua Farms. The undisputed facts of this case are that under a Certificate of Title dated 7th March 1940 and issued by the then colonial Government, 2,570.05 acres of land at Borteyman in the Greater Accra Region, belonging to the Nungua stool, was compulsorily acquired for animal husbandry and related purposes. The Northern part of the land was allocated to the University of Ghana and the Southern part to the Ministry of Agriculture. The Extract from the Gold Coast Gazette dated Saturday, 13th July 1940, confirming this acquisition was tendered in evidence at the trial by the 1st and 2nd Defendants, as Exhibit 1. It is also not in dispute that following discussions between the Government of Ghana and the Nungua Stool, 974.53 acres of the said land was eventually released to the Nungua Stool by a lease dated 12th August 2010. The said lease was admitted in evidence as Exhibit 9.

THE CASE OF THE PLAINTIFF

By its amended Writ of Summons and Statement of Claim, the Plaintiff, a company registered under the laws of Ghana, avers that pursuant to the said lease between the Government of Ghana and the Nungua Stool, it acquired two separate subleases covering a total of 328. 877 acres of the released part of the Nungua Farms land, from the Nungua Stool, on or about 16th August 2010, The Plaintiff contends that while one lease covered a parcel of land measuring 34.357 acres, the other covered a larger parcel of land measuring 294.520 acres. The said leases which the Plaintiff says were to run for 95 years, were admitted in evidence, as Exhibits A1 and B 1.

It is also the case of the Plaintiff, that at the date of execution of the said subleases the land granted to it was bare, whereupon it went into occupation and constructed corner pillars and then subsequently in the year 2012, it put up 10 ‘single room’ structures on the land to demarcate its boundaries. According to the Plaintiff, in the year 2013, it constructed a wall around the said land and built its head office on a part of the land it acquired.

The Plaintiff alleges that the 1st Defendant has entered its land without its consent and demolished the fence wall it constructed, citing as the basis for its action, a consent Judgment it says was obtained from the High Court in a suit intituled: Royal Bell Investments V. Nii Abotsi Borlabi Borketey Nkpa, Suit No. LD/1228/2017. The Plaintiff says it was neither a party to the suit, nor notified of its pendency, for which reason it contends that the demolition was unlawful.

The Plaintiff states that the 1st and 2nd Defendants which are both limited liability companies are attempting to unlawfully take possession of 30 acres of the land measuring 294.4 acres and prays for a declaration of title to the said land, as well as related reliefs. The Plaintiff then puts in issue his title to the land measuring 34.357 acres, by seeking against the Defendants, a declaration of title to same and an order of injunction, among other reliefs. The Plaintiff describes the extent of the said parcels of land he claims at paragraphs 23 and 24 of its Amended Statement of Claim and seeks the following reliefs, per its Amended Writ of Summons:

WHEREFORE the Plaintiff prays this Honourable Court for the following reliefs.

A declaration of title to all that land more particularly described in the statement of claim;

Recovery of possession;

Perpetual injunction restraining the Defendants, their agents, privies, servants, assigns and any person deriving any interest through them, from entering or dealing with any portion of the said land in any manner that interferes with the lawful possession and occupation of the Plaintiff;

Damages for trespass;

Costs, inclusive of legal fees; and

Any other relief(s) which this Honourable Court deems fit or considers just.

THE CASE OF THE DEFENDANTS

The 1st and 2nd Defendants are limited liability companies, while the 3rd to 7th Defendants are heads of various families of Nungua, who have been sued in their representative capacities. The case of the Defendants is contained in their joint amended Statement of Defence and counterclaim. The Defendants aver that prior to the acquisition of the land known as Nungua Farms within which the land in dispute falls, subjects of the Nungua Stool, particularly the Bortey We Clan, were in occupation of the land, had built their Borteyman village, and their cemetery on same and were carrying out farming activities on same. They aver that after the said acquisition, these families continued to be in occupation of the land.

According to the Defendants, after acquisition of the land, the Government only utilised a small portion of the land and subsequently gave portions of same to the University of Ghana. Defendants say that as a result of the occupation, possession and developments on the said land by the 3rd – 7th Defendants and following Petitions by the Nungua Stool, the Nii Abotsi Borlabi family (3rd Defendant) and other families, the Government entered into an agreement with the Nungua Stool on 25th September 2008, to release 1,016 acres of portions of the acquired land to the Nungua Stool and its families. The Defendants say the Daily Graphic Newspaper run stories on the said Memorandum of Understanding in its 3rd October 2008 and 17th April 2009 editions.

The Defendants further aver that the Government fulfilled its part of the agreement through a formal lease dated 12th August 2010, by which 976. 446 acres of the said land was released to the Nungua Stool and its subjects, including the 3rd to 7th Defendants. The Defendants assert that prior to the release by the Government, as a result of the occupation, possession and development of the land, by families of the Nungua Stool, the Stool had granted separate leases to the 3rd – 7th Defendants which they tendered in evidence as Exhibits 3, 29, 30, 32 and 32 (a).

It is also the case of the Defendants, that the Nungua Stool acting through the late Gborbu Wolomo, by a letter dated 11th December 2010, confirmed the said lease granted to the Nii Abotsi Borlabi family (3rd Defendant) on 28th May 1996. That the said lease was registered by the Lands Commission and the 3rd Defendant family issued with Land Title Certificate No. TD 0090 Vol 019, Folio 58. According to the 3rd Defendant, the Nii Abotsi Borlabi family had at all material times, taken steps to protect its interest in the land claimed by them, in suits before the Courts, amongst them, is one suit intituled; Nii Abotsi Borlabi v. Douglas Dewor Borketey; Suit No BL 332/ 2007.

The 1st Defendant further avers that pursuant to a letter dated 12th October 2015, the late Gborbu Wulomo granted consent to the 3rd Defendant family, to assign to 1st Defendant, the unexpired residue of the term of its lease covering the land measuring 31.37 acres. Following this consent, the 1st Defendant obtained an assignment of the 3rd Defendant’s interest in the land and obtained a Land Title Certificate No TD 0558, VOL 019, Folio 58, dated 10th June 2016 and subsequently assigned its interest to 2nd Defendant which seeks to develop affordable housing on same.

According to the 1st Defendant, pursuant to this assignment some members of the 3rd Defendant’s family had sought to encroach on portions of the land granted them by the family, resulting in its commencement of Suit No LD /1228/2017 intituled Royal Bell Investments Ltd v. Ni Abotsi Borlabi Borketey Nkpa, which was settled amicably with terms of Settlement filed on 22nd December 2017 and a consent Judgment entered on 4th April 2018. That the said consent Judgment was executed and a Certificate of Title issued.

The 3rd to 7th Defendants contend that the Nungua Stool and the Nungua Traditional Council have confirmed their families grants and granted them the statutory consent and concurrence for the registration of their land at the Lands Commission. The Defendants further aver that having granted the land in dispute to 3rd – 7th Defendants in 1996 and 2000, the stool is estopped from granting the said land to the Plaintiff, as alleged and that any such grant is void, on the basis of the Nemo Dat Quod Non Habet principle.

In their Amended Statement of Defence, the Defendants raise issue with the two signatories of the Plaintiff to the subleases. The Defendants contend that a search at the Office of the Registrar of Companies revealed that the Plaintiff’s 1st signatory who signed the subleases, Exhibits A 1 and B1 as the Chief Executive Officer, was not an officer of the company at the date of the execution of the said Subleases. Furthermore, that Plaintiff’s Company Secretary, Mr. Kwame Gyan, the 2nd signatory to the subleases, was also an officer of the Lands Commission and had in fact participated in the negotiations between the Nungua Stool, its families and the Government for the release of the land and was well acquainted with the 3rd to 7th Defendants. They further contend that the said Company Secretary was on the team of government officials who visited the land to inspect same, prior to its release and was well aware that the 1st and 2nd Defendants, as well as the 3rd to 7th Defendants were in occupation of the land. That, however, fixed with this prior knowledge the said Company Secretary proceeded to purportedly acquire the said land on behalf of the Plaintiff.

It is also the case of the Defendants, that the Plaintiff has trespassed on land belonging to them and that its agents have resorted to acts of intimidation, and harassment of persons on the land, thereby causing hardship, embarrassment and losses to the Defendants and their grantees. They aver that when the attention of the Nungua Stool was drawn to the activities of the Plaintiff on the land, the stool in a letter dated 12th May 2021 and written by the Gborbu Wulomo to the Regional Lands Officer confirmed the grant of the land to the 2nd Defendant, as emanating from the 1st Defendant’s grant. That further to this letter, the Stool wrote another letter dated 16th August 2021, wherein it denied granting the land in dispute to the Plaintiff and requested the Lands Commission to expunge any registration it had effected in the name of the Plaintiff.

On account of these matters averred to by the Defendants, they filed a counterclaim for the following reliefs:

A declaration of the little in favour of the 2nd Defendant Company over ALL THAT PIECE OR PARCEL OF LAND with the structures thereon, situate lying and being at Borteyman covered by Land Title Certificate No. T.D 0558, Volume 019, Folio 58, dated 10th day of June, 2016 covering 29, 791 acres, which was duly assigned to it by the 1st Defendant.

A declaration of title in favour of the 3rd, 4th, and 5th Defendants’ families to all the PIECE OR PARCEL OF LAND with the structures thereon situate, lying and being at Borteyman, Nungua, Accra; on the North measuring 2,488.2 feet more or less bounded by Ashaley Botwe-Nungua Farm Road, on the East measuring 2,079.5 feet more or less bounded by Lessor’s land, on the South measuring 1,614.8 feet more or less bounded by the Accra – Tema Motorway, and on the West measuring 3,651.0 feet more or less bounded by Lessor’s land/stream containing an approximate area of 117.89 Acres or 47.71 Hectares.

A declaration of title in favour of the 6th Defendants’ family to ALL THAT PIECE OR PARCEL OF LAND with the structures thereon situate, lying and being at Borteyman, Nungua Farms, Nungua, Accra; on the North – West measuring 1,105.9 feet more or less, North – East measuring 802.1 feet more or less bounded by Nungua Farm Road/Nii Abotsi Borlabi Family/Lessor’s land, on the East – measuring 1,245.6 and 2384.8 feet more or less bounded by Lessor’s land/Nii Adjogah Annang & Other families, on the South measuring 1,206.4 feet more or less bounded by Lessor’s land and on the West measuring 892,0, 611.8 and 1,098.9 feet more or less bounded by Lessor’s land/Fio Borteye & Boye Tawiah Families/Lessor’s land containing an approximate area of 151.15 Acres or 61.17 Hectares.

A declaration of title in favour of the 7th Defendant’s family to ALL THAT PIECE OR PARCEL OF LAND with the structures therein situate and lying at BORTEYMAN, Nungua, Accra in the Tema Metropolitan District of the Greater Accra Region on the North measuring 450.5 and 805.1 feet more or less bounded by Nungua Farm Road on the East measuring 801.9 and 820.7 feet more or less bounded by Lessor’s land, on the South measuring 1,269.1 feet more or less bounded by the Accra – Tema Motorway, and on the West measuring 2.081.1 feet more or less bounded by Nii Adzogoh Annan & other Families containing an approximate area of 35.04. acres or 14.18 Hectare.

A declaration that the purported grants of the land in dispute to the Plaintiff company by the Nungua Stool after the earlier grants of same to the Defendants, is void ab initio.

An order annulling all the purported leases granted by the Nungua Stool to the Plaintiff company.

An order directed at the Lands Commission to expunge from its records any purported registration of the land in dispute in favour of Plaintiff Company forthwith.

Perpetual Injunction restraining the Plaintiff herein, its agents, assigns, servants, privies, workers, independent contractors or any other persons claiming through it or authorized by it from interfering in any manner with the land in dispute.

Substantial Damages

Punitive, exemplary and aggravated damages

Special Damages:

Cost of 2nd Defendant’s demolished fence wall of GH¢220,000.00

– Expenditure incurred due to the order of injunction at the instance of the Plaintiff company.

Cost inclusive of legal fees.

Any other reliefs that may be just in the circumstance.

DECISION OF THE HIGH COURT AND COURT OF APPEAL

The suit proceeded to trial, after which the High Court concluded that the Plaintiff had failed to establish its case, while the Defendants had established their Counterclaim. The High Court entered Judgment for the Defendants on 16th November 2023, declaring title in favour of the Defendants. It nullified the leases of the Plaintiff and ordered the Lands Commission to expunge any entries in its records in favour of the Plaintiff. Damages of GH¢ 100, 000.00 and costs of GH¢ 50,000.00 were awarded against the Plaintiff.

Being aggrieved with the decision of the High Court, the Plaintiff filed an appeal in the Court of Appeal. By a majority decision dated 27th March 2025, the Court of Appeal affirmed the decision of the High Court and dismissed the appeal filed by the Plaintiff. The Court of Appeal in dismissing the appeal stated that it found no reason to disturb the findings of the High Court.

APPEAL TO THE SUPREME COURT

Yet still dissatisfied with the outcome of the appeal at the Court of Appeal, the Plaintiff filed an appeal in this Court by a Notice of Appeal which was subsequently amended on 17th October 2022. The grounds upon which the said Appeal has been lodged in this Court, are fully stated in the majority decision. By this Appeal, the Plaintiff is seeking a reversal of the Court of Appeal’s decision.

DETERMINATION OF THIS APPEAL

This appeal is against concurrent findings of the High Court and Court of Appeal. As a second appellate Court, this Court will not interfere with the concurrent findings of the trial Court and the intermediate appellate Court, unless it is clearly established upon this appeal that the High Court and Court of Appeal made an error resulting in a miscarriage of justice, in the way the said Courts dealt with the facts. Such errors could be in the failure of the said Courts to properly evaluate the evidence, the wrong application of principles of evidence or erroneous proposition of law, such that if corrected will result in a finding in favour of the Appellant. The circumstances which warrant this Court’s interference with concurrent findings are well settled by a plethora of decisions of this Court. In the case of ACHORO V. AKANFELA [1996-97] SCGLR 209, this Court per Acquah JSC, stated this position of the law, at pages 214 – 215, thus:

“ Now in an appeal against findings of facts to a second appellate Court, where the lower appellate Court had concurred in the findings of the trial Court, especially in a dispute, the subject matter of which is peculiarly within the bosom of the two lower courts or tribunals, this Court will not interfere with the concurrent findings of the two lower courts unless it is established with absolute clearness that some blunder or error resulting in a miscarriage of justice, is apparent, in the way in which the lower tribunal dealt with the facts. It must be established for example that the lower courts had clearly erred in the face of a crucial documentary evidence, or that a principle of evidence had not been properly applied…or that the finding is so based on erroneous proposition of the law that if the proposition be corrected, the finding disappears. In short, it must be demonstrated that the judgment of the Courts below is clearly wrong…”

SEE ALSO: AWUKU SAO V. GHANA SUPPLY CO. LTD. [2009] SCGLR 710.

My dissent will focus on ground (a) of the appeal, as I am of the view that a determination of this ground will resolve the appeal. Before I proceed however, I must state for the sake of clarity, that though the Memorandum of Understanding, Exhibit 7 stated that 1016 acres of the 2,570.05 acres of land acquired by the Government will be released to the Nungua Stool and the parties have themselves stated varying acreages, the Lease between the Government and the Nungua Stool, describes the acreage to be 974.53 acres. By Ground (a) of the appeal the Plaintiff contends that the Judgment of the Court of Appeal is against the weight of evidence.

The duty expected of an appellant, as well as the appellate Court where the omnibus ground of appeal is canvassed, is by now trite. The Plaintiff, who is the Appellant, bears the onus to establish from the record the pieces of evidence which were erroneously applied against him, such that if applied in his favour will result in a decision in his favour. SEE: DJIN V. MUSAH BAAKO [2007- 2008] 1 SCGLR 686. Simply put, in a civil suit such as this, where the omnibus ground is canvassed, the Appellant must establish that upon a proper evaluation of the evidence on record, and correct application of the rules of evidence, the case of the Appellant is more probable than that of the Respondent. Though the Appellant has a duty to establish that the Judgment of the Court below is against the weight of evidence, it does not absolve this Court of its duty to examine the entire record and to determine whether indeed the evidence on record supports the Judgment of the lower Courts. Since an appeal is by way of rehearing, this Court is entitled to draw its own conclusion on the facts, just as though it were the trial Court. SEE: OSEI (SUBST BY GILLIARD) V. KORANG [2013-2014] 1 SCGLR 221.

On this ground, Counsel for Plaintiff submits that it is not disputed by the 3rd to 7Th Defendants, that at the date the Nungua Stool purported to grant portions of the Nungua Farms lands to the 3rd to 7th Defendants, the said land was the subject matter of compulsory acquisition by the Government of Ghana. He, therefore, argued that in the circumstances, the said Defendants obtained no interest in the land, since the Nungua Stool could not grant an interest it did not have on the basis of the Nemo Dat Quod Non habet Rule. Counsel for Plaintiff, argues further that the grant of two parcels of land by the Nungua Stool to the Plaintiff on 16th August 2010 was subsequent to the lease between the Government and the Nungua which released 976.46 acres of the land to the Stool. According to Counsel for the Plaintiff, in the circumstances, the Plaintiff obtained valid legal title. That the Judgment of the Court of Appeal was against the weight of this evidence on record. Counsel for the Defendants on the other hand argues that the land the Plaintiff claims in this suit, has been in the possession of the 3rd to 7th Defendants prior to the acquisition by the Government and that the Nungua Stool had made grants of the said parcels of land to the 3rd – 7th Defendants’ families. That having divested its interest, the Nungua Stool could not grant the same parcel of land to the Plaintiff. Counsel for Defendants also argues that there is ample evidence on record from which it can be concluded that the trial Judge and the Court of Appeal arrived at the right conclusions.

The testimony of the Plaintiff on its acquisition of the land in dispute, was given by its operations manager. He traced the Plaintiff’s root of title to the Nungua Stool through an acquisition of the said land from the Nungua Stool, by two separate subleases. The said subleases were executed after the formal release of 974.53 acres of the Nungua farms land to the Nungua Stool, by the Government of Ghana per a lease dated 12th August 2010. Exhibits A and B series were tendered in evidence by the Plaintiff. Exhibit A 1 and B 1 are the subleases said to have been executed between the Plaintiff and the Nungua Stool, on 16th August 2010, for a term of 95 years each. Exhibit A1 seeks to grant the Plaintiff 34.57 acres of land, while Exhibit B seeks to grant the Plaintiff 294.520 acres. The said subleases were signed by the Nungua Mantse and the Gborbu Wulomo, who are authorised signatories necessary for a valid alienation of Nungua Stool land, as determined by this Court in the case of REPUBLIC V. COMMITTEE OF INQUIRY INTO NUNGUA TRADITIONAL AFFAIRS, EX PARTE ODAI AYIKU IV & ORS [1996 – 97] SCGLR 401.

The Plaintiff which also sought to establish its possession of the said land tendered in evidence Exhibits C and C1. Exhibit C is a photograph of the head office of the Plaintiff which it asserts was built on the land in dispute. The evidence adduced at the trial, however, establishes that the land on which Exhibit C stands, does not fall within the disputed land. Indeed, the Defendants lay no claim to same, as rightly noted by the trial Judge. Exhibit C1 shows three single rooms which the Plaintiff asserts were built to demarcate the boundaries of the land in dispute. When the Plaintiff sought to construct a fence wall around the land in dispute, same was demolished by agents of the Deputy Sheriff, pursuant to an order of the High Court, in another suit in which 1st Defendant obtained Judgment over the land. After the said demolition, on 30th June 2021 the 1st Defendant was then put in possession of the parcel of land he claims in this suit, as revealed by Exhibit 14 (L), which is the Certificate of Execution.

It is settled law that a party who seeks a declaration of title to land must, in addition to establishing his root of title, establish acts of possession, among others, to succeed on his claim. SEE: MONDIAL VENEER (GH) LTD V. AMUAH GYEBU XV [2011 1 SCGLR 466. Can the Plaintiff claim to be in possession of the land in dispute from the evidence on record? The evidence on record establishes otherwise. As determined by the trial Court and affirmed by the Court of Appeal, the Defendants had been in physical possession of the land in dispute for several years, prior to the Plaintiff’s acquisition of same. Counsel for Plaintiff submits that Plaintiff obtained valid legal title. That though the Nungua Stool purported to grant subleases to the 3rd to 7th Defendants, same were void, as the Stool’s title had been extinguished by the 1940 compulsory acquisition by the Government of Ghana.

Can the Plaintiff succeed on its claim for declaration of title on the strength of its legal acquisition of the land in dispute, considering the evidence on record? The 3rd to 7th Defendants are various families of the Nungua Stool. There is uncontroverted evidence on record to establish that prior to the acquisition of the said Nungua Farms land by the Government in 1940, these families lived on and were in possession of the lands they claim in this suit, same being their ancestral lands as subjects of the Nungua Stool. They farmed on the said land and built structures on same. The 3rd Defendant has settlements and a cemetery on the land in dispute. After the acquisition by the Government of Ghana, these families continued to live on the said lands due to the fact that the Government did not utilise the entire parcel of land, as large parcels remained unused. The testimony of the 3rd Defendant for his family and the testimony of the 4th and 5th Defendants’ families, as well as the testimony of the 6th Defendant for his family and on behalf of the 7th Defendant family establish their possession and settlement on the said land. The fact of the 3rd to 7th Defendants’ possession and settlement on the land claimed in this suit is supported by Exhibits 28 – 28 k.

Now, prior to the Lease between the Government of Ghana and the Nungua Stool on 12th August 2010 (Exhibit 9), which released a portion the land known as Nungua Farms to the Nungua Stool, following among others, a suit instituted by the Nungua Stool as confirmed by a memo from the Minister of Lands and Forestry to the Chief of Staff, Exhibit 7 a, there were discussions and negotiations between the Nungua Stool, for itself and on behalf of the interested families in possession of the lands of one part and the Government of Ghana of the other part, for the Government’s release of the land to the Nungua Stool. The parties reached an agreement and signed a Memorandum of Understanding in evidence, as Exhibit 7. The commencement of the agreement states in part, as follows: “This Agreement is made this 25th day of September, 2008 between the Government of Ghana represented by the Minister of Lands, Forestry and Mines of the one part (hereinafter referred to as the first party) and the Nungua Stool and all interested families represented by King Odaifio III,[and] Numo Borketey Larweh Tsuru , Gborbu Wolomo of the other part ( hereinafter referred to as second party). Paragraph 4 of the recitals continues in the following language, “that as a goodwill gesture and in line with the Government policy objectives to return parts of excess lands acquired by the states to the original owners, to engender trust and cooperation between the state and land owning groups, as well as promote the optimal use of land, all that peace or parcel of land measuring approximately, 1016 acres comprising 40 % (forty percent) of the total area acquired, excluding all portions with state assets and infrastructure and more particularly described in the 3rd schedule hereto, shall be released to the land owners, free from all encumbrances”. This understanding reached by the Government of Ghana, the interested families and Nungua Stool and captured in Exhibit 7, was reported in the Daily Graphic of Friday, October 3rd, 2008. Thereafter, Exhibit 9 was executed, leasing the land to the Nungua Stool. In the said Exhibit 9, the Memorandum of understanding signed between the parties as Exhibit 7. was referred to.

Prior to the formal release of the land to the Nungua Stool, however, the Nungua Stool had made grants to the 3rd to 7th Defendants in this suit, evidenced by Exhibits 3, 29, 30, 32 and 32 (a). It is not in dispute that at the date the grants were made to the 3rd to 7th Defendants, the Nungua Stool had no interest in the said land, the said grants having been made prior to the release of the land to the Stool and at a time the Nungua Stool’s rights to the land had been extinguished by compulsory acquisition. The legal effect of compulsory acquisition is to extinguish all rights of the pre – acquisition owner(s). See: SAGOE & ORS V SOCIAL SECURITY & NATIONAL INSURANCE TRUST [2012] 2 SCGLR 1093.

However, per Exhibits 7 and 9, signed between the Government and the Nungua Stool, the interested families in possession of the land were recognised by all parties to the said agreements, albeit that the said interested families were represented by the Nungua Mantse and the Gborbu Wulomo of the Nungua Stool. The evidence on record as already stated establishes that the 3rd to 7th Defendant had all been in possession of the parcels of land they claim in this suit before the acquisition in 1940, which possession continued during the period of acquisition and well after the land was released to the Nungua Stool, to the knowledge of the Nungua Stool. In fact, the 3rd – 7th Defendants gave unimpeached testimony to establish that prior to the release of the land by the Government to the Stool, some Government officials visited the land in dispute and met them in possession of same. Indeed, one of the reasons given by the Government for the release of the land to the Nungua Stool and interested families, was massive encroachment on same. Therefore, when the Nungua Stool entered into negotiations with the Government of Ghana, it not only negotiated on its behalf, but on behalf of all its interested families, as established by Exhibits 7 and 9. In fact in the said leases the Nungua Stool purported to make to the 3rd to 7th Defendants prior to the release of the land, the parties recognised that negotiations were ongoing to have the land released to the Stool. Undeniably, the said Defendants are interested families within the contemplation of the parties to the negotiations and per the agreements between the Government and the Nungua Stool, as evidenced by Exhibits 7 and 9.

Therefore, clearly In the circumstances, it would, be manifestly unfair and in bad faith, that after the release of the land, the Nungua Stool should then purport to arbitrarily grant the said parcels of land to 3rd parties, namely the Plaintiff in this appeal, thereby preventing the 3rd – 7th Defendants from the benefit of the agreements entered into on their behalf. The trial Judge came to the correct conclusion that it would be unfair for the Nungua stool to grant the land to persons other than the Defendants. In the circumstances, the said 3rd to 7th Defendants should rightfully be entitled to the benefit of any legal interest to be granted by the stool, in respect of the lands they occupy, after the formal release of same by the Government. This Court is not only a Court of law but of equity and equity will not suffer a wrong to be without a remedy.

Furthermore, in the pleadings of the Defendants, particularly. at paragraphs 39 – 42 of the Defendants’ Amended Statement of Defence, they aver as follows:

“(39) again Mr Kwame who signed the purported indentures from the Nungua Stool for the Plaintiff as a secretary for Plaintiff’s company was also a Government official involved in the release of the land to the pre-acquisition owners and signed all agreements including the indenture dated the 12 of August 2010, releasing the acquired land to the Nungua tool and its subjects.

(40) the Defendants say that Mr. Kwame Gyan was aware or knew of the prior occupation of the land by the 1st and 2nd Defendants grantor, Nii Abotsi Borlabi family which he has much acquaintance with and the 3rd to 7 Defendants but ignored and used his Plaintiff’s company to purportedly acquire the land in dispute from the Nungua Stool. (sic)

(41) The Defendants say that in the Daily Graphic newspaper publication on the 17th of April 2009, the subjects of the Nungua Stool warned the chiefs and elders of the Nungua Stool, to desist from any attempt to sell the released lands by depriving the stool subjects in occupation and shall contend that the publication constitutes notice to the general public including the Plaintiff’s company of the Defendants’ interests in the land in dispute.

(42) The Plaintiff shall contend that the said Mr. Kwame Gyan acted in bad faith and in conflict of interest in using his company to purportedly acquire the land in dispute.”

In the Witness Statement of the 6th and 7th Defendants, at page 1, Vol 3 of the record, one Richard Nii Alabi Bortey testified at paragraphs 16, 17 and 18, in accordance with the pleadings of Defendants as follows:

“(16). Before the land we occupy was released to us in the year 2008, the Ministry of Lands and forestry led by Mr Kwame Gyan and Honourable Collins Dauda came for inspection on the land where he and his entourage met all of us in occupation on the land, as subjects of the Nungua Stool on the respective portions of land we occupy.

(17). It’s strange that Mr Kwame Gyan who we regard as the one who led the release of the land to us, would sign the purported indentures from the Nungua Stool for the Plaintiff company as a secretary for Plaintiff’s company when he was a Government official involved in the release of the land to us as the pre- acquisition owners and signed all the agreements for the Government.

(18). Mr. Kwame Gyan was aware or knew of our prior occupation of the land, but ignored it and used Plaintiff’s company to purportedly acquire the land in dispute from the Nungua Stool, when he was present at the meeting at the Teachers Hall in the Teshie Nungua Estates for the release of the land and where the subjects of Nungua Stool mounted a demonstration to warn the Chiefs and elders of the Nungua Stool, to desist from any attempt of selling the released land to deprive us of the land we occupy, as captured by the Daily Graphic newspaper on the 17th of April 2009.”

When Counsel for the Plaintiff had the opportunity to cross- examine the 6th and 7th Defendants on the presence of the said Mr. Kwame Gyan on the disputed land during the visit by Government officials and his role in the negotiations, the following transpired, on 12th July 2022 at page 175, Vol 3 of the record:

“Q: You have stated that you met Mr. Kwame Gyan on the land being claimed by your family?

A: Yes.

Q: Did Mr. Kwame Gyan represent to you that he was an employee of the Government of Ghana at the time?

A: He did not personally tell me that. At the time we met, he came with the Government officials unto the land.

Q: I am putting it to you that Mr. Kwame Gyan was not and has not been a Government official or an official of the Lands Commission or with any state power or authority.

A: At the time of the inspection, Mr Kwame Gyan came there with Government officials. But he did not tell me that he is one of the Government officials, but he was one of the people who came to talk to us.

Q: Did Mr. Kwame Gyan at any point in time represent himself to you as an employee of the Plaintiff company?

A: No.

Q: You have attached these documents as Exhibits 29 and 30.

A; That Is so.

Q: And these leases are supposedly grants made in favour of your family and the family of the 7th Defendant is that so?

A: Yes.”

The cross-examination by Counsel for the Plaintiff, did not impeach the assertion and testimony of the Defendants that Mr, Kwame Gyan had prior knowledge of the former’s possession of the land in dispute. Exhibits 7, A1 and B1 further corroborate the testimony of 6th and 7th Defendants. The 1st and 2nd Defendants, tendered Exhibit 7 in evidence. In Exhibit 7, which is the Memorandum of Understanding between the Government of Ghana and the Nungua Stool, dated 25th September 2008, the said Mr. Kwame Gyan signed as a witness to the signature of the Minister for Lands and Forestry. The record also reveals that the Mr. Kwame Gyan executed Exhibits A1 and B1, on behalf of the Plaintiff, as Company Secretary together with Plaintiff’s Chief Executive Officer. Exhibit A1 and B1 are the subleases said to have been made between the Nungua Stool and the Plaintiff, in respect of the land in dispute. The Defendants therefore succeeded in establishing on the balance of probabilities that Mr. Kwame Gyan, the Plaintiff’s Company Secretary was aware of the Defendants’ possessory interest in the land, and that the said land was to be released for the benefit of the Nungua Stool and the interested parties and yet proceeded together with the Chief Executive Officer, to acquire same on behalf of the Plaintiff on 16th August 2010, per Exhibits A1 and B1.

This knowledge of the Plaintiff’s Company Secretary who is an authorised signatory to the Plaintiff’s leases, Exhibits A1 and B1, can be imputed to the Plaintiff. In the circumstances, the Plaintiff was well aware of the possessory rights of the 3rd – 7th Defendants and also that the land in dispute was to be released for the benefit of the said families but purported to acquire legal title to the said parcels of land. In the circumstances the Plaintiff cannot succeed on a plea of innocent purchaser for value without notice and will not be permitted to benefit from its conduct. The trial Judge rightly determined that the plea was not available to the Plaintiff. In this Court, the issue has been raised as to the good faith of the Plaintiff in its acquisition of the land in dispute. From the foregoing and the evidence on record, it is my view that the Plaintiff did not purchase the said land in good faith and cannot succeed in an action to assert legal title in the land, as it seeks to claim in this suit. The position of the law is clear that a bona fide purchaser of a legal estate can succeed on the plea of innocent purchaser for value without notice, only in the circumstances where the said purchaser was unaware of a prior equitable claim adverse to his title.

SEE: YEBOAH V AMOFA and Another [1997-98] I GLR 674 – 706.

SEE ALSO: RICHARD OSAE DUODU V. NANA AMA BENEWAH; CIVIL APPEAL NO. J4/32/2011, DATED 12TH DECEMBER 2012.

From the foregoing, the Plaintiff ought to fail in its claim for a declaration of title and related reliefs. In conclusion, therefore, in respect of the 1st and 2nd Defendants, I agree with that part of the majority decision which recognises that the 1st and 2nd Defendants acquired their parcel of land from the 3rd Defendant, after taking all diligent steps as prudent purchasers and that having been in possession of, and developed portions of the said land, their possession ought not be disturbed. For the reasons stated in the preceding paragraphs, however, I disagree with the decision of the majority that the appeal should succeed in respect of the 3rd to 7th Defendants. Having carefully evaluated the evidence on record, I find that the appeal ought to be similarly dismissed in respect of the 3rd to 7th Defendants. I find no reason to disturb the Judgment of the trial Court and the Court of Appeal. Consequently, the appeal fails in its entirety and same is accordingly dismissed.

(SGD.) H. AMALEBOBA

(JUSTICE OF THE SUPREME COURT)

COUNSEL

O. K. OSAFO-BUABENG ESQ. FOR PLAINTIFF/APPELLANT/APPELLANT

APPELLANT

KWAME FOSU-GYEABOUR ESQ. FOR DEFENDANTS/RESPONDENTS/

RESPONDENTS