The challenge thrown by Daniel McKorley, Chief Executive Officer (CEO) of McDan Group of Companies, that site plan of 0.41 acre land located at East Legon, in the Greater Accra region, had no signature of a licenced surveyor has been answered by the Lands Commission (LC).
The site plan for the land in question, which Daniel McKorley is battling Businessman Magnus A.L. De Souza at the Land Court Division of the Accra High Court over its ownership, was prepared by the Lands Commission.
The CEO of McDan is, however, challenging the side site plan, as it is not original and that it doesn’t have date and the name and signature of the licenced surveyor who prepared it.
Responding to McKorley’s quarries of the document before the court, presided over by Justice Rita Abena Abrokwa, Jacqueline Osarfo Dikoh, a Senior Lands Administration Officer, said the site plan was prepared by the Commission, hence it will not require a signature of a licenced surveyor.
Mrs. Dikoh further explained that in the past, the Commission will receive a plan, which is not approved and a request will be made to the applicant for an approval plan.
She also added that the Commission could not trace the original copy, therefore, had to fall on the photocopy of the plaintiff, De Souza.
Testifying as a subpoenaed witness, Jacqueline again explained to the court that the date on the deed of assignment being challenged by the respondents, McKorley and Joseph Nii Mensah Ashong was a result of error in the spelling of the plaintiff’s name.
She said the document, which previously dated April 29, 1997 had error in the spelling of Magnus, but was corrected in October 2019, hence the disparities in the dates.
Theophilus Donkor, counsel for the respondents, was curious about how the plaintiff was paying ground rent from 1995 and yet most of his documents are dated from 2017.
The counsel also questioned whether or not the disputed land falls within the site plan provide by the plaintiff and Lands Commission.
He further placed emphasis on whether the land owners were paid compensation or not by the Gold Coast Government.
The subpoenaed witness could not answer whether the disputed land falls within the site, saying she is not a land surveyor.
She could not also give a direct answer as to whether the land owners were paid compensation after the acquisition by the Gold Coast Government.
Furthermore, she pointed out that the records of payment of ground rent should be with the plaintiff.
Mr. De Souza has sued Daniel McKorley, and Joseph Nii Mensah Ashong for land encroachment.
The defendants have been accused of also deploying land guards on the land in question to secure them develop it.
Last year, the court fined the Chairman and Chief Executive Officer (CEO) of McDan Group GH¢6,000 for his failure to appear in court.
Cross examination of Monday and Tuesday
Respondent: We have objection to the tendering of the document. All the documents they want to tender we want to see the original.
Court: The documents have gone in already
Witness: What we have on our records is a scanned copy of the original and that is what I have printed. According to the records office, they don’t have the original.
Defendants: We want an eligible copy. You said you have scanned a document, the original should be there.
Plaintiff: In law, under the Evidence Act, a document coming from an official source is admissible without more. Also, a document that is more than 30 years old is also admissible without more.
My lord, the witness has explained that they cannot trace the original document at the last sitting and today. At the last sitting, the question was… So if you want the soft copy apply for it. So this is not the proper ground for objection.
Respondent: Point of the law. My lord, the presumption that documents from official source are presumed to be regular are not conclusive evidence, but are rebuttable presumption. My lord, once we raised issues with the documents, the onus is now on them to provide sufficient evidence that the document is genuine.
My lord, it has also been contented that a document that is over 30 years without more is not the position of the law. My lord we pray that piece of evidence be rejected.
Plaintiff: A lawyer should not confuse the law. You should rebut it. The onus lies on you, rebuttal it not us. If you are saying that a document that have been brought from an official source is not original…
Judge: the court has taken a good look at the document the duplicate can be treated as official. The document can be admitted to go in for whatever it worth. Document admitted as SW1D
Cross examination
Q. All the documents you have tendered in this court, you don’t have the original is that so?
A. Apart from the acquisition, all the originals are in the file.
Q. The deed of assignment between the David KpapoeAllotey and Magnus de Souza was not prepared by the Lands Commission. Is that not so?
A. That is so my lady.
Q. When did you receive the said document at the Lands Commission?
A. According to the trial, the document was reviewed on August 9, 2017.
Q. You did not receive original copies, is that not so?
A. The copy on the file is a photocopy
Q. There is a stamp duty on the said duty of assignment?
A. That is so.
Q. How much stamp duty was paid in connection with the deed of assignment?
A. The stamps I see here is in the total of ¢30,000.
Q. Is the evidence on the deed of assignment to show that a stamp duty of ¢30,000 was assessed by the tax officer as it is the practice at the Lands Commission?
A. Apart from the embossment stamp there is no other stamp at the bottom.
Q. Are you aware that before a stamp duty is paid at the Lands Commission, the stamp officer had to conduct assessment on the documents before it is submitted for payment?
A. Yes I’m aware.
Q. From the deed of assignment, this assessment is not endorsed in it. Is that not?
A. Yes.
Q. On the deed of assignment, there is this inscription AR/2667/97. It means that the document was received in 1997. Not so?
A. Yes my lady.
Q. There is also this inscription LBDGAS168642017. That also shows that the stamp duty was paid in the year 2017?
A. Yes my lady.
Q. You will admit that after AR/2667/97, the document is supposed to be in the custody of the Land Commission?
A. Not exactly. A copy is supposed to be with the Lands Commission and the client.
Q. You will agree with me that the Lands Commission will always receive the original of the document. Is that so?
A. It is so my lady.
Q. You will also agree with me that from the LBDGAS168642017, it shows this document left your file after 1997 after it was received?
A. That is not the case my lady.
Q. So what happened before the plaintiff had the document in 2017 to emboss the stamp duty on it?
A. Evidence in the file show that the Lands Commission had misplaced its copy of the assignment deed dated 8/11/1995, as a result a request was made to Mr De Souza for a copy of the document while the documents was plotted in 1997.
AR/2667/1997, the new copy that has been submit had to be stamped before we could receive it into our records. Prior to 2016, not all documents presented to the Lands Commission were stamped.
That explained why the AR/227/97 the stamp duty is 2017.
Q. You can confirm to the court that there is a letter on the file to the effect that the Lands Commission wrote to the plaintiff?
A. Yes sir.
Counsel. Can you show it to the court. My lord we want to tender the document.
Court: document referred to is already in evidence
Q. What is the date on Exhibit 1?
A. 14th March 2018
Q. Who was it addressed to?
A. It was addressed to the Chief Executive Officer.
Q. What is the title of Exhibit 1?
A. Re: Verification of attached document.
Q. Exhibit 1 is not a letter Lands Commission wrote to plaintiff requesting him to produce the deed of assignment, you claimed is missing from your file?
A. The content if I may read, the content required him to produce the deed of assignment.
Q. So your evidence, you requested the plaintiff to signed his deed of assignment?
Counsel for plaintiff: objection, those words are being put by counsel into the mouth of the witness. She has not said in this the court that the Lands Commission have asked the plaintiff to go and sign his document.
Q. You will admit that the stamp duty on the deed of assignment, which dates the letter requesting him to produce his document not so?
A. That is so my lady
Q. So it is not true that Lands Commission requested the plaintiff to sign the deed of assignment?
A. I did not say the Lands Commission requested the plaintiff to sign the deed of assignment.
Q. You can confirm to the court that based on the copy of the deed of assignment there is no evidence that stamp duty was in deed changed?
A. The embossment stamp is required only when a payment have been made.
Q. Can you tell the court from the site plan that the Lands Commission issued to the said Prof David Kpapoe Acquaye the dimensions in the land in dispute?
A. 0.41 of an acre.
Q. Take a look at the deed of assignment that is Exhibit SW1D and tell the court the dimensions of the land in dispute per the site plan attached?
A. My lady what I can refer to is the acreage, which is the 0.41.
Q. Take a look at the deed of assignment and confirm to the court whether the site plan was prepared by Lands Commission?
A. The site plan attached to the deed of assignment was not prepared by the Lands Commission.
Q. On the face of the site plan attached to the deed of assignment, you cannot confirm the surveyor who prepared the site plan?
A. No.
Q. You can also not conform to the court by way of stamp and signature that the Greater Accra regional surveyor approved of the site plan?
A. No my lady I cannot confirm that.
Case stood dawn
Case recalled
Q: The document showing the consent of assignment dated 23rd October 2019, shows that the Lands Commission only consented for the deed of assignment on 23rd October 2019, is that so?
A: That is not so.
Q: So when was the deed of assignment consented to by the Lands Commission?
A: 29th April 1997, however, there was an error in the name of Magnus and this was corrected by the consent to assignment dated 23rd October 2019.
Q: Exhibit SW1E, did not come with any executive instrument, is that not so?
A: Yes my lady.
Q: There’s no evidence that compensation has been paid to the land owners, is that not so?
A: That information is not on the file so I can’t confirm that.
Q: It is not true that Exhibit SW1E was acquired by the Gold Coast Government without any instrument of acquisition?
A: That was all I brought today. I did not suggest that.
Q: You can also not point on the face of Exhibit SW1E, the exact location of the land in dispute, is that not so?
A: Yes that’s the work of the land surveyor.
Q: You can also not…the coordinates and dimensions of Exhibit SW1E?
A: No my lady
Q: So you cannot confirm to the court that the land in dispute falls within Exhibit SW1E?
A: No my lady I cannot.
Q: The deed of assignment between Prof David Acquaye and the plaintiff does not have oath of proof is that so?
A: There’s a copy on the file.
Q: The plaintiff wrote a letter to the Lands Commission, asking for verification of certain documents is that correct?
A: Yes my lady.
Q: And the response to that letter is what is captured in Exhibit 1, is that not so ?
A: No, there was an earlier response.
Q: Exhibit 1 is not a letter Lands Commission wrote to the plaintiff by response to the letter for verification of authenticity of documents is that not so.
A: Yes it is so.
Q: Apart from the 2022, rent demand notice, the plaintiff has never paid any ground rent is that not so?
A: On the rent demand notice, the period of arrears was for only 2018, which indicate that he has paid for the previous years.
Q: Can you show by way of receipt that the plaintiff has indeed paid ground rent since 1995?
A: The receipt will be with the plaintiff, but our record will show in the rent ledger that he has made payment.
Q: Apart from the lease dated 25th March, 1977, all the other documents you have produced in this court are all dated 2017 and beyond is that not so ?
A: I cannot answer that question.
Q: I’m putting it to you firmly that apart from the lease dated 25th March 1977, all the other documents were prepared in the year 2017 and subsequent years?
A: If those are the dates on the documents then yes.
Q: On the 7th of February 2024, you told this court that it is the plaintiff who has been paying ground rent. You have no evidence to support the payment of the said rent?
A: The rent demand notice has the name of the plaintiff as the lease.
Q: Exhibit SW1 C&D are not just letters but they were accompanied by documents is that not so?
A: Those are not letters but they are information on the file.
Q: I’m putting it to you that Exhibit SW1 C & D are letters between the Lands Commission and the plaintiff’s lawyer?
A: There was no copy made for the record information of 17 February 2022 because it was not found on the file.
Q: Can you tell the court what Exhibit SW1C means?
A: That information on our record relating to the parcel of land in question.
Q: You can’t tell the court who signed the exhibit?
A: No my lady I cannot.
Q: Exhibit SW1 is also not on the letterhead of Lands Commission is that not so?
A: Per practice, records information is not written on letter head of Lands Commission.
Q: Your evidence is that the Lands Commission does not use letterhead when it comes to record of information on a particular parcel of land. Is that what you want the court to believe?
A: Within the Lands Commission, we do not use letterheads for writing records information, especially on a file.
Q: For Exhibit SW1C, who was it addressed to. Since it’s a correspondence within Lands Commission?
A: The information was minuted for the attention of the regional head of the public invested lands management division.
Q: There’s nothing on the face of Exhibit SW1C which shows that it was addressed to the head RHPILMD?
A: On the records information you can see RHPILMD.
Q: You cannot confirm the purpose for which Exhibit SW1C was written?
A: It was written because the Lands Commission had received an application for consent to assign.
Q; Portions of Exhibit SW1C were covered before the print?
A: Those were the internal minutes it doesn’t have any relation to Exhibit SW1C.
Q: So you will agree with me that the original
Copy of Exhibit SW1 as on the file is different from the court copy?
A: it is not different.
Q: Can you tell the court the request for consent to assign for which reason Exhibit SW1C was made the parties that requested?
A: The application was received from the plaintiff but submitted by Dr Stephen Ofori Dankwa.
Q: Can you confirm the date this application was made?
A: it was acknowledged on 12 July 2017.
Q. Yesterday, you told the court that Exhibit SW1C was produced because of an assignment application that the Commission received. Can you tell the court who the assignor was?
A. The assignor was Magnus A. De Souza
Q. Can you tell the court why you didn’t add the assignor to the file?
Court: She is subpoenaed witness. It was counsel for the plaintiff who made the application.
Q. It is not true that the plaintiff did not assign his interest to any other person?
A. It true that the plaintiff De Souza has not assigned his interest to any other person.
Q. It is also not true when you say that SW1C was generated because of an assignment the Commission received?
A. It is not true.
Q. Is it the practice of the Commission that you will receive site plan that are not signed by licenced surveyors or the Commission’s surveyors?
A. In the past, the commission will receive a plan, which is not approved, a request will be made to the applicant for an approval plan.
Q. The site plan that is attached to the deed of assignment is not approved site plan?
A. Yes. The site plan was prepared by the Lands commission. So it will not have a signature of a licenced surveyor.
Q. Can you show her Exhibit SW1C. Can you take a look at the site plan attached to the Exhibit SW1C and confirm that it was prepared by the Lands commission?
A. Yes exact photocopy didn’t print out the bottom part of the plan.
Counsel: I want to confirm whether they are the same.
Court: Go and have a look at it. I have given you the permission to.
(Counsel approached the witness box to compare the two documents)
Court: Mr. Donkor what is your verdict?
Counsel: They are not the same.
Q. I’m putting it to you that the site plan attached to Exhibit SW1 C was not prepared by the Lands commission?
A. The site plan was prepared by the Lands commission.
Q. Your evidence that the site plan was prepared by the Lands commission, apart from the one that is attached to the deed of assignment, there is a copy?
A. Yes my lady.
Q. Can you show it to the court?
A. Witness after searching through the file, pulled a copy of the document and showed it to counsel.
Q. The site plan you have just shown to the court is not an original?
A. Yes.
Q. You can also not tell the court the person who prepared the site plan?
A. No my lady.
Q. The site plan you have just shown to the court is part of the document the plaintiff submitted to the Commission?
A. Ye.
Q. You cannot tell the court the date the plan attached to Exhibit W1 series was prepared?
A. Yes.
Q. I’m finally, putting it to you that all the documents that you have tendered in this court were all prepared after the plaintiff first institution of the action at the Land Division of the Accra High Court?
A: I can’t tell.
Case adjourned to May 9, 2024.
