IN TE SUPERIOR COURT OF JUDICATURE

IN THE COURT OF APPEAL

ACCRA, AD 2023

CORAM: CECILIA H. SOWAH, JA (PRESIDING)

ANTHONY OPPONG, JA

KWEKU T. ACKAAH BOAFO.JA

SUIT NO. H1/208/2018

DATE: 20TH APRIL 2023

KWABENA APPIAH. …. PLAINTIFF/RESPONDENT

VRS.

SARAH ODONKOR HESSE. …. DEFENDANT/APPELLANT

JUDGMENT

ANTHONY OPPONG JA:

Plaintiff/Respondent to be referred to simply as Respondent claimed to have

obtained a lease of land from one Madam Doreen Boatemah Bitihene by way of

assignment dated 25th July 1995. Respondent claimed further that when he acquired

the land he took immediate possession by erecting pillars and constructing concrete

foundation for a house.

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Respondent pleaded that defendant/appellant to be referred to simply as appellant

trespassed unto his (respondent’s) land and started constructing a house on the plot

of land.

Consequently, respondent sued appellant at the court below and claimed

declaration of the 0.44 acre land situate and being at Dome Village, Accra; recovery

of possession of the said land; perpetual injunction and general damages for

trespass.

The appellant denied the claim of respondent. She claimed to have acquired 0.24

acre land situate and being at North-Dome, Accra in 1990 from the Onamrokor

Adain Family but was not issued with any document as she was informed of a

litigation that existed between the Onamrokor Adain family and another family with

the understanding that when the litigation was over, she would be given proprietary

documents covering the land.

The appellant averred further that when the litigation was over, her grantors,

Onamrokor Adain family, per the head thereof and the elders gave her documents

over the land.

The appellant claiming to have been in possession of the land since 1990 when she

started constructing her house counterclaimed for declaration of the 0.24 acre land

situate and being at North-Dome, Accra; damages for trespass; recovery of

possession and perpetual injunction

After the parties have joined issues and the court below heard and considered the

evidence of the parties as well as the evidence of appellant’s witnesses, respondent

having called no witness, and not forgeYing the evidence of court expert witness, the

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surveyor, the court below entered judgment in favour of the respondent.

Interestingly, the court below rather inadvertently did not specifically dismiss the

counterclaim of the appellant. This omission on the part of the trial judge will be

addressed in due course.

Nevertheless, dissatisfied with the judgment of the court below, the appellant

pursuant to leave of the court filed notice of appeal on the following grounds:

a. That the judgment is against the weight of evidence

b. That the trial judge failed to address the fact that the document relied on by the

plaintiff is fraudulent

c. That the trial judge failed to address the fact that defendant is an innocent purchaser

for value without notice

d. That the damages awarded is harsh and excessive

The appellant filed an additional ground of appeal, namely: the court erred in

allowing the plaintiff to prosecute his case and/or testify without revoking the power

of aYorney he gave to Kwaku Oppong Kyekyeku, his aYorney.

The ground of appeal that the judgment of the court below is against the weight of

the evidence opens the case for rehearing in accordance with Rule 8 of the Court of

Appeal Rules, 1997 (C.I.19) whereby this court is required to consider the entire

evidence, both oral and documentary so as to ascertain for itself whether the

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judgment is supportable having regard to the preponderance of the probabilities of

the whole evidence on record.

See the cases of Tuakwa v. Bosom (2001-2002) SCGLR 61 @ 65; Quacoopume v.

Sanyo Electrical Trading Company Ltd (2009) 2 SCGLR 213 @219; Oppong v.

Anarfo (2011) 2 SCGLR 556; Abbey & Ors. V. Antwi (2010) SCGLR 17; Ackah v.

Pergah Transport Limited & Others (2010) SCGLR 728; Djin v. Musa Baako

(2008-2008) 1 SCGLR 1; Akufo Addo v. Cathline (1992) 1 GLR 377 and Owusu

Domena v. Amoah (2015-2016) 1 SCGLR 790

It must also be pointed out that where an appeal is based on the ground that the

judgment is against the weight of evidence, there is a presumption that the judgment

of the Court below on the facts is correct. The appellant in such a case therefore

assumed the burden of showing from the evidence on record that the judgment is

indeed against the weight of evidence. See Ampomah v. V.R.A (1989-90) 2GLR 28

It appears to this Court that the appellant, in purporting to acquire the disputed

land, did not consider at all the all-important principle of caveat emptor. In Brown v.

Quashigah (2003-2004) 2 SCGLR 930, the Supreme Court emphasized that the

principle of caveat emptor is still a postulate of our law. This imposes a duty on

prospective purchasers of land not only to conduct thorough and diligent searches

on the land they intend to acquire but to also investigate thoroughly any

information they come across or ought to have come across relating to the land.

Prospective purchasers of land should not take anything for granted or should not

sheepishly take whatever the prospective buyers would tell them in relation to the

land but must satisfy themselves that they are acquiring litigation-free land by, for

instance, visiting the land personally and taking note of the least sign of any prior

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possession or occupation of the land as well as any registered document on the land

for serious and thorough investigation.

In the instant case, the respondent’s evidence overwhelmingly portrayed that the

original owner of the disputed land is Onamrokor Adain family. The then head of

the said family, one Marye Adorkor Allotey, granted the land to respondent’s

grantor, Doreen Boatema Bitihene who in turn granted the land to respondent.

Exhibits A, B and C are documentary evidence that heavily support this fact.

It is evident on record that before the appellant was granted this disputed land, a

search was conducted and it was discovered that the land had been registered in the

name of Doreen Boatema Bitihene, respondent’s grantor. Notwithstanding this

important discovery, appellant unwiYingly threw caution to the dogs and allowed

herself to be swindled to proceed to buy that same land.

At page 72A of the Record of Appeal (ROA) when appellant’s aYorney was being

cross examined, the unfolded dialogue was as follows:

Q. Did the defendant conduct any search regarding the ownership of the land before she

bought it?

A. Yes my lord

Q. What was the result of the search?

A. It stated the name of one Doreen Boatema Bitihene

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Q. Are you telling the Court that the search you conducted

indicated that the subject MaGer of this suit belonged to Doreen Boatema Bitihene?

A. Yes, that is so.

In the face of this knowledge that put the appellant on sufficient notice of prior

interest existing in the land, how could the appellant be considered as bona fide

purchaser for value without notice? The contention of appellant that the Court below

failed to address the fact that the appellant is an innocent purchaser for value

without notice does not provide any succor to the wounds of the case of appellant.

Any consideration of that contention will not be in favour of appellant because there

is a fundamental fact of the appellant being put on notice. He did not take that notice

seriously and that occasioned the materialization of the risk he took. The appellant

therefore cannot be heard to say that he is an innocent purchaser for value without

notice.

In Apollo Cinemas Estate (Ghana) Ltd. v. The Chief Registrar of Lands (2003-2005)

GLR 167, it was held that:

“The plea of bona fide purchaser for value without notice was an absolute,

unqualified and an unanswerable defence against the claims of any prior

equitable owner. However, in order for the plea to be successfully invoked, the

person relying on it had to prove that he had:

(a) acted in good faith

(b) paid consideration in money

(c) the legal estate properly vested in him and

(d) actual or constructive notice of other encumbrances

on the property”.

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As observed earlier, in this case where the appellant had actual notice of the interest

of the respondent’s grantor, his invocation of the plea of bona fide purchaser is

doomed to fail.

In any event, the appellant never pleaded that she was an innocent purchaser for

value without notice and neither did she lead cogent evidence on that plea and so

his accusation of the court below for not addressing the plea appears untenable.

Even on the evidence, that plea cannot be successful as there is sufficient evidence

that debunks the bona fides of the appellant.

The consideration and analysis of the entire record do not justify the appellant’s

contention that the judgment of the trial court is against the weight of the evidence.

On the contrary, the judgment is quite supportable and indeed justifiable on the

weight of the evidence as a whole, especially on the balance of the preponderance of

the evidence on record.

The respondent established that as far back as 1979, Doreen Boatema Bitihene

acquired the disputed land from Onamrokor Adain family and in 1995, Doreen

Boatema Bitihene in turn granted the land to respondent. This fact finds support

from Exhibits A and C as stated earlier. Indeed, when the secretary of the

Onamrokor family, DW2 was shown the documents respondent relied on, that is,

Exhibits A and C, he never mentioned that the said documents were fraudulently

obtained. What he said was that he had never seen them. Notwithstanding these

facts, the appellant wanted this court to believe that the documents the respondent

relied on were fraudulent. This court will reject that argument by the appellant as

same is devoid of merit.

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It is instructive to observe that Manye Adorkor Allotey was one time the head of

Onamrokor Adain family, from 1968 to 1984. When DW2 was being cross examined

at page 83A of the ROA, the following dialogue took place:

Q. I am puGing it to you the said Manye Adorkor Allotey granted the land to Madam

Bitihene

A. The indenture as I observed it confirms that Manye Adorkor Allotey granted the land

to Madam Bitihene

At page 84 of the ROA the following dialogue also ensued:

Q. That subject maGer of dispute was granted by Manye Adorkor Allotey to Madam

Bitihene who granted same to plaintiff and that the Onamrokor Adain family had no

right to grant it out again

A. We did not know that Manye Adorkor Allotey had granted the land to someone

earlier.

By this answer, it can be inferred that the Onamrokor Adain family would not have

granted the disputed land to appellant if they knew that the same piece of land had

earlier on been granted to respondent. Commenting on this state of facts as gleaned

from the record, the learned trial judge had this to say at page 130 of the ROA:

“The plaintiff traced his root of title to the said Doreen Bitihene through the Exhibits

he tendered, namely A, B and C. Having divested of their interest in the land the

defendant’s grantor (Onamrokor Adain family) no longer had an interest (to purport

to grant the land to defendant). She stated in evidence that a search conducted showed

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 the plaintiff’s grantor as the registered owner. This position is fortified by the cases of

Brown.v. Quashigah (2003-2004) SCGLR 939, Sarkodie vrs. FKA Co.Ltd

(2009) SCGLR 65 and Mousa Co. v. Saara (1999-2001) 1 GLR 538 CA. I find

that the principle of nemo dat non quod habet comes to play here. Consequently,

the defendant took nothing from the Onamrokor Adain family”

The finding and the conclusion of the trial court accord with the evidence. That is to

say the judgment of the trial court cannot be said to be against the weight of

evidence on the record. The judgment of the trial court deserves affirmation.

However, for the fact observed from the record that the trial court failed to

pronounce on the counterclaim of the appellant, we would employ the provision

under Rule 32(1) of the Court of Appeal Rules and dismiss the counterclaim of the

appellant.

The appellant argued that the court erred in allowing the respondent to adduce

evidence in court himself when the power of aYorney he had given to one Kweku

Oppong kyekyeku had not been revoked. This argument has no legs to stand on in

law. There is no known law and Counsel for appellant did not refer the court to any

law that prohibits a donor of power of aYorney from conducting his case himself if

available for that purpose where the power of aYorney subsists. A power of aYorney

merely mandates the donee to do what the donor would do in case for some reason

the donor cannot do what he is mandating the donee to do at a particular point in

time. In other words the right of the donor to testify or otherwise prosecute his case

is never extinguished just because the donor had mandated someone else to stand in

for him by virtue of power of aYorney.

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The learned lawyer for respondent made the point that the essence of a power of

aYorney is to grant a person who for one reason or the other is unable to be present

to do an act for himself to get another to do same in his stead. Thus when the donor

of the power is able to do the said act, should he/she be prevented from doing so just

because he has granted power to another? This submission finds favour with this

court and our answer to the question posed by the lawyer for the respondent is

emphatic no.

The argument by appellant that respondent lost the power to prosecute his case

himself since the power of aYorney he had donated to Kweku Oppong Kyekyeku

had not been revoked is a clear case of misconception of the law.

One of the grounds of the instant appeal is that the damages awarded by the trial

court against the appellant is harsh and excessive. This ground would be considered

as having been abandoned by the appellant as there was no submission on it in the

wriYen submissions that the appellant relied on for purposes of this appeal.

For the reasons stated above, we find no merit in the appeal and same is dismissed.

The judgment of the trial court dated 29th day of July 2016 is hereby affirmed. The

counterclaim of the appellant is dismissed as devoid of merit.

Costs of GH¢15,000.00 in favour of Plaintiff/Respondent

SGD

...........................

JUSTICE ANTHONY OPPONG

JUSTICE OF THE COURT OF APPEAL

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 SGD

I AGREE ...........................

JUSTICE CECILIA H. SOWAH

JUSTICE OF THE COURT OF APPEAL

SGD

I ALSO AGREE ............................

JUSTICE KWEKU T. ACKAAH BOAFO

JUSTICE OF THE COURT OF APPEAL

COUNSEL:

EVA ANGELINA DANIELS KLU WITH ABIGAIL WILLIAMS FOR PLAINTIFF/

RESPONDENT

KOFI SOMUAH WITH DAVID KOKO FOR DEFENDANT/RESPONDENT

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