Boham v Tettey (J4/05/2025) [2025] GHASC 97 (17 December 2025)

IN THE SUPERIOR COURT OF JUDICATURE IN THE SUPREME COURT ACCRA - A.D. 2025

Coram

LOVELACE-JOHNSON (MS.) JSC (PRESIDING) ASIEDU JSC DARKO ASARE JSC DZAMEFE JSC ADJEI JSC

Civil Appeal

NO. J4/05/2025

17TH DECEMBER, 2025

YOOFI BOHAM …… DEFENDANT/APPELLANT/APPELLANT

VRS

MUSTAPHA ADJIN TETTEY …… PLAINTIFF/RESPONDENT/RESPONDENT

Judgment

LOVELACE-JOHNSON JSC:- The designation of the parties at the High Court will be maintained in this appeal. The Plaintiff sued the Defendant for the following reliefs

(a) Declaration of title to all that piece of land being and lying at Abosso Okai near Mataheko in the Greater Accra Region of Ghana and bounded on the North East by Victor Nettey’s land measuring 60 feet more or less, on the North West by Victoria Elemo Adade vor’s land measuring 116 feet more or less, on the South West by a proposed road measuring 60 feet more or less, on the South East by a proposed road measuring 110 feet more or less and covering an approximate area of 0.16 acres which said piece of land is more particularly delineated on the plan which shows the relevant measurements.

(b) Recovery of possession of the said parcel of land

(c) Perpetual injunction restraining the defendant whether by himself, his agents, servants workmen, assigns or anybody however described who drives authority from defendant from interfering with plaintiff’s use of the said land.

(d) General damages for trespass

(e) Cost

The defendant denied this claim and further counterclaimed for declaration of title to the land claimed by the plaintiff, damages for trespass, recovery of possession of any portion

of the land entered upon by the plaintiff, an order for plaintiff to remove all offending structures on the land and perpetual injunction restraining the plaintiff, his agents, and assigns from ever entering the land

At the end of the hearing the trial court gave judgment for the plaintiff. The Defendant appealed against the said judgment. The Court of Appeal dismissed the appeal and affirmed the judgment of the trial High Court. Still dissatisfied, the defendant has launched the present appeal on the following ground: a. The judgment is against the weight of evidence

The defendant stated that other grounds of appeal would be filed upon receipt of the record of appeal. No such were filed. The relief sought is “that the whole judgment be set aside and judgment entered in favour of the Defendant/Appellant”

The present appeal will therefore be considered on the omnibus ground earlier stated. This court has stated ad nauseum that notwithstanding the duty of an appellate court to go through the entire record to determine if the findings and conclusions in the judgment on appeal are borne out by all the evidence led, it is the appellant appealing on this ground who has to pinpoint any alleged lapses in the said judgment which will trigger this process. The appellate court on its own does not embark on a fishing expedition, so to speak, looking for reasons to set a judgment aside. See the case of Republic vs. Conduah ex parte Aaba (substituted by Asmah) [2013-2014] 2 SCGLR 1032 and a host of other cases which discuss this duty on an appellant in such circumstances.

What are these lapses complained of by the defendant? Has he been able to satisfy this court that, these lapses, if there are indeed any such, would , if cured, change the conclusion or judgment given against him in this matter and make him the successful party? The summary of the defendant’s complaints in this regard as gleaned from his somewhat haphazard statement of case are as follows

i) The trial court failed to call a witness from the Land Title Registry Division and the Regional Director of Survey and Mapping Division of The Lands Commission before concluding that the Land Title certificate of the defendant was invalid raises ‘serious p rocedural and evidentiary concerns’ and so the refusal of the Court of Appeal to subpoena officers from these Divisions amounts to a serious omission which omission denied the court an opportunity to interrogate the authenticity of the certificate and also denied the defendant the opportunity to rebut the allegation of fraud and irregularity of the said certificate.

ii) The defendant also complains that the trial court on 19th February 2019 had ruled that a motion for a supplemental witness statement had been struck out as invalid upon the basis of Practice Direction which had no statutory backing. This according to the defendant’s counsel can be viewed as a miscarriage of justice

iii) The trial court failed to summon the surveyor who prepared the composite plan to testify and make himself available for cross examination and thus ‘compromised the integrity of the process’, an act counsel describes as a ‘fundamental procedural error’. Counsel submits that the court of appeal’s failure to comment on this infraction impacted the fairness and transparency of the proceedings.

iv) There is also a complaint about the disparities in the signature of the plaintiff in his indenture of 1990 and his witness statement of 2017 and that of his witness on a payment receipt and the latter’s witness statement. It is submitted by counsel that th ese raise the possibility of forgery and fraudulent conduct and could seriously undermine the plaintiff’s credibility and the integrity of the whole case.

v) It is also contended that while the plaintiff stated in his address at the Court of Appeal that publication of defendant’s land title was done on 1 st January 1997, it was actually done on 18th January as per exhibit

10. It is submitted that this was a contradiction in the plaintiff’s case and yet the court relied heavily on this date to discredit the defendant’s evidence. The affirmation of this finding by the Court of Appeal, it is submitted, shows a failure of due diligence on that court’s part because it took the plaintiff’s unsupported assertion at face value without taking into account critical details which could have ‘significantly impacted’ its

Conclusion

This was a serious error of jud gment on the part of the Court of Appeal which has resulted in an ‘inaccurate and unjust conclusion’ regarding the defendant’s Land Title Certificate, his counsel submits.

The Plaintiff’s answer to all the submissions by the defendant is simple. It is contended that all the issues raised are not part of the evidence on record and since the omnibus ground of appeal relates to evidence on record, then they are not relevant or appropriate for arguing such under this ground of appeal. It is submitted that ‘the defendant instead catalogued pieces of evidence he intended to call but failed to do so’.

The above submission, respectfully is incorrect. Any fact, document or testimony admitted in court forms part of the evidence on record so a newspaper publication, a failure to have a witness cross examined, or the wrong evaluation of any testimony can be raised under the

omnibus ground as a lapse whose cure can lead to a different conclusion in the case. To accept the very limited scope of the omnibus ground proffered by counsel for the plaintiff will lead to injustice

The question to be answered at this stage is whether the alleged lapses are such as will change the judgment of the Court of Appeal should they be found proven. It is to be borne in mind that not all proven lapses, even if corrected will affect the outcome of an appeal.

One must also bear in mind this court’s admonition to be slow to interfere with concurrent findings of fact made by a trial court and confirmed by a first appellate court unless these findings are clearly at variance with the evidence on record or contrary to law. See the case of Sylvia Gregory vs. Nana Kwesi Tandoh IV [2010] SCGLR 971

In sum, the lapses the defendant complains of, shorn of all the many submissions are four and relate to the failure of the trial court to call certain officials from the Lands Commission to testify, the striking out of his supplemental witness statement, the failure of the Surveyor to testify and the dependence on the wrong publication date of a newspaper. It is alleged that the Court of Appeal’s judgment became tainted by the same complaints through its affirmation of the judgment of the High Court.

What did the court of appeal say on these issues in its judgment?

The defendants first additional ground of appeal before the Court of Appeal related to the failure of the trial court to subpoena the Regional Director of survey and Mapping at the Land’s Commission. This is what the first appellate court stated at page 204 of the record of appeal [ROA]

“……we find it necessary to touch on those grounds of appeal without plentiful words in disposing of them………..The issuance of a Land Title certificate is premised on the fact that an applicant submitted a foundational document being an indenture or any docu ment recognised under law by the Lands Commission for registration. From the evidence, the appellant had none to submit before the Lands Commission. Therefore the finding by the trial Judge at page 147 of the record of appeal that there was no document registered or unregistered purporting to convey the land to the appellant……for which reason the title certificate had no credibility but tainted cannot be impeached….…The non invitation extended to the Regional Surveyor of the Survey and Mapping Division under that circumstances did not occasion any injustice to the appellant”

We agree with the conclusion that this lapse, if it can be called such, did not occasion any injustice to the defendant. This is because, the evidence of this witness could not have cured the absence of a document which should have been a basis for the defendant’s land tile certificate, secondly he had a counterclaim which he had to prove and win on its merits by producing relevant evidence. He was at liberty to call witnesses he felt needed to succeed on his counterclaim. The court and plaintiff were not under any duty to call witnesses to help make his case. Nothing stopped him from subpoenaing the surveyor who drew up a composite plan to come and testify in court in support of his case.

The trial court’s statement that there was clearly no dispute as to the identity of the land the subject matter of dispute was justified in the light of paragraph 3 of plaintiffs statement of claim and Paragraph 1(a) of the Defendants Counterclaim which show that the parties were disputing over the same land. “Plaintiff’s Paragraph 3 That Plaintiff says that he is the owner of a piece of land being and lying at Abossay Okai near Mataheko in the Greater Accra Region of Ghana and

bounded on the North East by Victor Nettey’s land measuring 60 feet more or less, on the North West by Victoria Elemo Adadevor’s land measuring 116 feet more or less, on the South West by a proposed road measuring 60 feet more or less, on the South East by a proposed measuring 110 feet more or less and covering an approximate area of 0.16 acres which said piece of land is more particularly delineated on the plan which shows the relevant measurements. Defendant’s Paragraph 1(a) Declaration of title to all that piece or parcel of land described in schedule to statement of claim”

The court in its discretion chose not to call the surveyor to tender his report, which, in any case, the court was not bound by. As stated earlier, nothing stopped defendant from calling this officer of the Lands Commission as a witness.

It is for these reasons that we affirm the finding of the court of appeal that the defendant suffered no miscarriage of justice in respect of these inactions on the part of the trial court.

The court cannot comprehend the submissions by counsel for the defendant about his supplementary witness statement which was allegedly struck out by the High Court as invalid. Counsel refers this court to a ruling by that court at page 61 of the ROA whose subject matter is rather a refusal for a composite plan to be drawn. The ruling in question states as follows: “it is observed that on the Pre -Trial Check List of Defendant, a request has been made for an order for composite plan to be drawn. Looking at the nature of the reliefs sought and the counterclaim of Defendant, it is clear to me that

the Parties are talking about the same piece of land. I will therefore turn down that request”.

The record shows that this supplementary statement was struck out, rightly, because it was filed without leave. If the defendant was minded so to do, he could have sought leave to have that statement form part of the record. In any case this was not a grou nd of appeal raised before the Court of Appeal.

Regarding the issue of the alleged publication of the required notice on a public holiday, the Court of Appeal did indeed state that the publication was done on 1 st January 1997, a confirmation of the position taken by the high court in its judgment. A careful study of Exhibit 10 shows that the publication was done on Saturday, January 18 1997. Clearly then both the High Court and Court of Appeal were mistaken about this date. The Court of Appeal’s statement that ‘As to how 1st January being a public holiday there was any newspaper in circulation….’ is not borne out by the record. The defendant’s complaint in this regard has merit and is upheld.

Does this proven la pse affect the judgment of the Court of Appeal? Will correction of the date of the publication lead to judgment being given for the defendant on his counterclaim? It is our considered opinion that it will not, for the simple reason that, the record shows that the publication was done years after the defendant had acquired a Land Title Certificate! Exhibit 9, the land Title certificate was issued on 8 th January 1992. The publication which was required by law to be done before its issuance for the purpose of giving notice to the world so that any affected party could file a caveat, was done on 18 th January 1997, about five years thereafter! So long as the publication was done after the issue of the certificate,

the Court of Appeal was right in its affirmation of the High Court’s finding that exhibit 9 was not genuine. At the very least, it was compromised and could not carry any weight.

In conclusion, in relation to the defendant’s complaints, with the exception of that relating to the date of publication earlier discussed, which we have found does not affect the conclusion of the Court of Appeal, we are satisfied that the standard laid d own in In Re Republic v Conduah supra and similar cases, has not been met. In other words, the defendant has NOT been able to satisfy this court that certain pieces of evidence had been wrongly applied against him or/and incorrectly or improperly applied by the court.

A quick evaluation of the evidence led by the defendant in support of his counterclaim as against that led by the plaintiff in support of his claim at the trial justifies the affirmation by the Court of Appeal of the findings by the High Court.

The record shows that the plaintiff led credible evidence about how he acquired the land from on Kwaku Okyere in 1990 who had acquired it from E A B Brock in 1989, and whose title was registered at the Land Title Registry. An indenture was executed on the transaction and tendered in court as exhibit B. The appearance of the name of one John Kwame Donkor was sufficiently explained away, to the satisfaction of the trial court by the plaintiff and did not appear to remove from his case. On the other hand, defendant pleaded that he acquired the land in 1984 from one Yartey Ansah who had also acquired it from one “Nathaniel Nii Brock on behalf of his father namely E. A. B. Brock the owner of the land” in 1984. See paragraph 2 of the Statement of Defence However during his cross examination in court, he said he got the land from E. A. B. Brock. Crucially, the defendant was unable to tender any lease of the land to him from Yartey Ansah or the Brocks. It was implied in one of his exhibits, a letter from his counsel, exhibit 6, that an indenture was executed between him and Yartey Ansah Anan but it could not be

traced at the Lands Department. Exhibit C, the search report does not mention him as having acquired this land from Yartey Ansah or anybody. His name does not appear on it. He also failed to adduce any similar evidence acceptable under the evidence Act an d the law relating to his acquisition of the land in dispute.

Without such evidence his counterclaim crumbled because his claim of title had no basis. It could not be resurrected by his Land title certificate which the trial court found was not genuine, a finding affirmed by the Court of Appeal. The absence of the re quired evidence proving his root of title sounded the death knell of his case.

The judgment of the Court of Appeal is definitely supported by the evidence on record

In conclusion we find no merit in this appeal and d ismiss it. The judgment of the Court of Appeal dated 15th June 2023 is hereby affirmed.