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JUDGEMENT
BY COURT:
This case emanated from the
enforcement of a Judgement
obtained by the 1st
Defendant against the 2nd
Defendant on 25th
September, 2007, in suit Number
L.210/99 entitled ITTAS
Consultancy Ltd vrs Esi Nana
Gonclave. The Judgement
referred to above may be said to
be a default Judgement since the
Defendant in that suit did not
lead evidence and the Judgement
was based on the evidence of the
Plaintiff. From Exhibit 11,
which is the Judgment referred
to, no issue was resolved except
to state that “from the evidence
on record, I am satisfied that
the Plaintiff has proved its
case as required by law, and I
enter Judgement for it on all
the reliefs claimed in the writ
of summons”.
When this Judgment was being
enforced, under order 43 Rule
3of C.I. 47, the present
plaintiff put in a claim under
order 44 Rule 12. As the issues
between them could not be
resolved summarily under order
44 Rule 13 1 (a) an order was
made for a writ to be issued by
the claimant as plaintiff, and
the Judgement creditors as
Defendant.
The Plaintiffs case is that it
acquired the land in dispute
from Esi Nana Gonclave on 10th
June 2004 for 70,000, USD or its
cedi equivalent.
That Esi Nana herself acquired
the land from Nii Bortrabi
Obroni II and Numo Borketey
Laweh on 10th August
1993.
Esi Nana Gonclaves took a
further lease from John Nii
Mmashi Adjetey, Daniel Adzie and
Eric Akpor Sowah, who are joint
owners and customary successors
to the late Joseph Okang
Adjetey, late Enoch Akpor Sowah
and late Azaria Adjei Klu,
owners of the land.
That in 2005 the Plaintiff
obtained further title covering
the subject matter from John Nii
Mmashi Adjetey, Daniel Adzete
Adzei and Eric Akpor Sowah joint
owners and customary successors
to the late Joseph Okang
Adjetey, late Enoch Akpor Sowah
and Azaria Adjei Klu. According
to the Plaintiff s pleading the
land was gifted to Joseph Okang
Adjtey and others by Nii Okang
Mmashie III Mankrado of Teshie
on 10th November,
1959. The Plaintiff pleaded
further that the ownership of
the land had been declared by a
circuit court and Supreme Court
Judgement to be for Nii Okang
Nmashie III Mankrado of Teshie.
The Plaintiff also pleaded that
it had entered the land and
developed same into twelve high
class residential properties
without any challenge and also
without notice of the litigation
between the 1st and 2nd
Defendants.
The 1st Defendant
pleaded that it had the land by
an acquisition dated 5th
October 1995 from the
administrators of the Estate of
Victoria Asheley Lartey. That
Victoria Asheley Lartey herself
had a lease from Nii Odai Ayiku
IV dated 26th March
1972. The 1st
Defendant pleaded again that
since the land had been given
out and the sublease or
assignment received the
necessary consent from the lands
commission on the 9th
of July 1998, any subsequent
acquisition is null and void.
The 1st Defendant
pleaded further that if the
plaintiff had conducted a proper
and thorough search as a
reasonable purchaser, would have
done; it would have realized
that the 1st
Defendant was seized with the
land and that the 2nd
Defendant had no interest in the
land.
After the close of the
pleadings, as many as nine
issues and additional issues
were filed but only the original
issues and additional issues 3
and 7 were set down as the
issues for trial.
The issues set down for
resolution are as follows:
i)
Whether or not 1st
defendant acquiesced in allowing
plaintiff to expand money and
resources to develop and improve
the property.
ii)
Whether or not the 1st
Defendant is stopped by laches
and acquiescence from claiming
interest and or seeking to
recover the plaintiff’s property
the subject matter of the suit.
iii)
Whether or not the plaintiff has
been in undisturbed,
uninterrupted possession of the
property
iv)
Whether or not the plaintiff
acquired the property without
notice of any encumbrances on
the subject matter
v)
Whether or not 1st
defendant fraudulently failed to
notify the plaintiff of his
interest or the pendency of any
existing action involving the
plaintiff’s property.
vi)
Whether or not plaintiff
acquired the property from the
lawful owners of the subject
matter
vii)
Whether or not Nii Odai Ayiku IV
was seized with jurisdiction to
divest interest in stool
property at the time he
purported to have granted a
lease of the subject matter to
the 1st Defendant.
viii)
Whether or not at the time 1st
defendant purported to have
acquired interest, his lessors
had unencumbered interest in the
subject matter
ix)
Any other issues arising from
the pleadings.
The two additional issues set
down for determination are
1)
whether or not plaintiff is a
bonafide purchaser for value
without notice at the time of
purchasing the land
2)
whether or not the plaintiff is
estopped from claiming any
interest in the property after
judgement has been awarded
against the plaintiffs lessor
Since the plaintiff claimed that
it first acquired that land from
the 2nd Defendant,
before he acquired it from other
persons, who claimed to have had
interest in the land, I will
resolve the 2nd
additional issued first. The 2nd
additional issue is
2)
Whether or not the plaintiff is
stopped from claiming any
interest in the property after
judgement has been awarded
against the plaintiff’s lessor.
The 1st Defendant’s
Judgement against the 2nd
Defendant is dated 25th
September, 2007 even though the
action was commenced on 27th
April 1999.
The Plaintiff gave evidence that
the company entered the land in
2005, after they had acquired
it. There were some structures
on it, which the 2nd
Defendant promised to demolish.
Since the 2nd
Defendant was delaying with the
demolition the plaintiff company
did the demolition at the cost
of US$4,000.00. Nobody however
questioned them when they
demolished. They also developed
it without any questioning.
Since the plaintiff was on the
land and was not joined to the
suit, the Judgement obtained
against the 2nd
Defendant by the 1st
Defendant will not automatically
bind the plaintiff even if the
Judgement was not a default
Judgement. Being a default
Judgment it did not actually
decide any matter in controversy
between the parties on its
merit.
From Exhibit 8, an important
issue of the capacity of Nii
Odai Ayiku in granting stool
land was raised in that suit.
Even though the 2nd
Defendant did not give evidence
in the suit between the 1st
and 2nd Defendant,
the cross examination of P W 1
and P W 2 in Exhibit 8 was such
that the trial Judge should have
made a finding on it; but that
was not done. Since ownership
of the plot in dispute had not
been pronounced at the time that
the Plaintiff acquired the land
the Judgement in Exhibit A
cannot estopp the plaintiff from
claiming any interest in the
property if it can prove a
better title than the 1st
Defendant.
The next issues to be resolved
are issues VI and VIII, which
reads as follows:
vi)
Whether or not plaintiff
acquired the property from the
lawful owners of the subject
matter.
viii)
Whether or not at the time 1st
defendant purported to have
acquired interest, his lessors
had unencumbered interest in the
subject matter
The Plaintiff traced its root of
title from the 2nd
Defendant whose root of title
was originally traced to Nii
Bortrabi Obroni II Mankralo and
Acting Nungua Mantse and Numo
Borketey Laweh, Gborbu Wulomo of
Nungua. This root had to be
abandoned and go to some people
from Teshie, when it was
revealed that they are the
owners.
The plaintiff explained in his
evidence under cross examination
that originally the 2nd
Defendant bought the land from
Nungua people, but after his
search the 2nd
Defendant took him to the actual
owners of the land from Teshie,
who issued him with an indenture
for processing Exhibit “C”,
which is the land certificate.
There is an indenture dated 26th
September, 2005, which was
issued by John Nii Nmashie
Adjetey Sowah, who were
described as joint owners and
customary successors to the late
Joseph Okang Adjetey late Enoch
Akpor Sowah and late Azaria
Adjei Klu, who were the original
joint owners of the land,
attached to exhibit C.
In the Indenture dated 26th
September 2005, the original
owners traced their root of
title from a Deed of gift by Nii
Okang Nmashie III Mankralo of
Teshie dated 10th
November, 1959. Both Exhibits
E, and E1 referred to Gift dated
10th November 1959
from Nii Okang Nmashie III to J
O Adjetey. The Plaintiff also
tendered Exhibit H which is a
Judgement of the Circuit Court,
Accra dated 28th
November 2002, against one Dr.
Botchway, who was said to have
trespassed unto the land. The
Judgement in Exhibit H affirmed
the claim of John Nii Nmashie
and others that the land was
gifted to their predecessors in
1959. Since Exhibits E and E1
indicated that as far back as 10th
November 1959, the land, the
subject matter of the search had
been given to J O Adjetey and
others, all other transaction on
the land after that date not
coming from J O Adjetey and
others or their successors and
assigns will be null and void,
unless it is shown that the Deed
of gift had been set aside by a
Judgement of a Court of
Competent Jurisdiction.
The 1st Defendant
however traces its root of title
from Nii Odai Ayiku IV Nungua
Mantse on 26th March
1972. Since in 1972 the land had
then been given out to J O
Adjetey and others on 10th
November, 1959, and had been
documented at Lands Commission,
Nii Odai Ayiku IV could not
lease the land to any other
person, without first setting
aside the Deed of Gift made in
1959, even if the land is for
the Nungua Stool.
The Judgement contained in
Exhibit H delivered on 28th
November, 2002 also affirm the
claim of John Nii Nmashie and
others that they had not
abandoned the land, after it had
been given to their ancestors.
The plaintiff raised another
issued that on 26th
March 1972 when the 1st
Defendants grantor had the land
from Nii Odai Ayiku IV in his
capacity as Nungua Mantse, he
had been destooled as the Mantse
of Nungua, and therefore had no
right to exercise the right of a
chief.
To rebut this assertion, the 1st
Defendants counsel tendered
exhibit 15 which is page 60 of
Local Government Bulletin of 5th
March1970, which said
“the committee appointed to go
into the destoolment charges
preferred against Nii Odai Ayiku
IV Nungua Mantse, found that no
case had been made against the
Mantse to warrant his
destoolment.”
They recommended that the
charges be dismissed. However,
Executive Instrument NO 18 of
1983 was passed, and it accepted
that Nii Odai Ayiku IV Nungua
Mantse had been destooled by the
elders of Nungua on 13th
June 1967.
This is definitely contrary to
the findings of the committee
appointed by the Government to
go into the matter. This may
sound strange, but this is not
the first time that such an act
has happened in Ghana in
chieftaincy matters. In the
case of Republic vrs Assua and
others Exparte Blewey and others
(1973) 2 GLR 283, the Western
Nzema Traditional Council made a
finding that the Half Assini
stool belonged to the
applicants’ family. As a result
of an appeal against the
decision of the council, a
committee of inquiry was
appointed. The Commissioner
confirmed the findings of the
Council and submitted his report
to Government. The Government
by notice published in the Local
Government Bulletin, reversed
the decision of both the
traditional Council and the
Commissioner. In an application
to quash the decision of the
Government, the High Court
refused the application and the
court of appeal affirmed same.
In the case of Executive
Instrument 18 of 1983, the
Supreme Court had held in the
case of Nii Odai Ayiku IV vrs.
The Attorney –General and
Wor-Nii Botelabi Borketey Laweh
XIV, (dated 17th
February, 2010) that no court
can question it, since the 1992
Constitution prohibits the
questioning of Acts by the
PNDC. In the said Judgement, it
was affirmed that the
destoolment was on 13th
June, 1967.
Again subsequent acts by the
elders of the Nungua stool
indicate that they do not
recognize the grant made by Nii
Odai Ayiku IV in 1972. That is
why in 1993, Nii Bortrabi Broni
II Mankralo and Acting Nungua
Mantse and Numo Borketey Laweh,
Gborbu Wulomo of Nungua and
other principal members of the
Nungua stool leased the same
land to the 2nd
Defendant.
Exhibit ‘5’ which is alleged to
be a lease from Nii Odai Ayiku
IV and the principal members to
Victoria Asheley Lartey, the 1st
Defendant’s grantor, was alleged
to have been executed by the
said Nii Odai Ayiku IV and other
principal members, who
thumbprinted. There is no
indication that the document was
interpreted to those elders. In
the case of Yalley vrs Kell and
Another (1995-96) IGLR 91, the
court of appeal followed the
Supreme Court decision in
Boakyem vrs Ansah (1963) 2GLR
223, and held that in the
absence of evidence to support
the fact that a document thumb
printed by an illiterate
person had been correctly read
over and explained to him, and
that he appreciated the meaning
and import of the contents of
the document in compliance with
the mandatory provision of the
illiterates, protection
ordinance, Cap 262, (1951 Rev),
the document could not be held
to be valid”
Since Nii Odai Ayiku IV had been
destooled by 1972, he could not
execute leases of Nungua stool
land in his capacity as Nungua
Mantse. The other principal
members, who are alleged to have
executed the document with him
are all illiterates. There is
no jurat in Exhibit 5 to
indicate that anybody
interpreted the document to them
and that they understood its
contents before they thumb
printed.
In Exhibit 1A the lease from Nii
Bortrabi Obroni II Mankralo and
Acting Nungua Mantse and Numo
Borketey Laweh, Gborbu Wulomo of
Nungua to Esi Nana Cosmas
Gonclave attached as Exhibit A,
it was indicated that those who
executed the document knew what
they were doing, as they all
signed it. When it turned out
that the land had been given out
in 1959 by the Teshie people,
Esi Nana Cosmas Gonclave took
the plaintiff to the owners of
the land, who turned out to be
the successors of the original
owners and they gave the
plaintiff, a lease. This lease
is embodied in Exhibit C. I
therefore hold that the
plaintiff acquired the property
from the lawful owners, and that
those who the 1st
Defendant purportedly acquired
the land from had no interest in
the land so as to pass anything
to him. The default Judgement
by the court cannot make the 1st
Defendant the owner of the land.
With these findings it follows
that Nii Odai Ayiku IV was not
seized with jurisdictional
interest in the land to act on
behalf of the people of Nungua,
even if the land is for Nungua.
There is also evidence before
the court that the 1st
Defendant failed and or refused
to draw the attention of the
plaintiff to the fact that there
was litigation on the land and
that the land should not be
developed. The plaintiff had
led evidence that they never
knew of the litigation and that
they had developed the land to
first class residential area.
Exhibits ‘F’ and ‘F1’ shows the
state of Development at the
time.
Since the plaintiff had led
evidence that the company
purchased the land in good
faith, at a time that the land
was in possession of the 2nd
Defendant, without knowledge of
the litigation, and had
developed same without any
prompting by the 1st
Defendant, I would have relied
on the authorities of Rafat Vrs
Ellis (1954) 14 WACA, 430 which
was relied on by the Court of
Appeal in Kwarteng vrs Addaw
(1991) IGLR 274, and Nii Boi Vrs
Adu (1964) GLR 410, H N O Abbey
and Ashalley Okoe vrs S K Ollenu
(1954) 14 WACA 567 to defeat the
1st defendants
interest in the land, even if
the land was properly acquired
by the 1st Defendant.
In this case, there is evidence
that the plaintiff did not just
acquire the land but conducted a
search before it acquired it
from the 2nd
Defendant and the true owners as
the Case of Osumanu vrs Osumanu
(1995-96) IGLR 672 says that is
how a prudent purchaser should
behave.
I cannot end this judgement
without commenting on the
shameful acts by lands
commission in providing
different search reports to
various persons who conducted
searches, to satisfy their
desire.
Exhibits E and E1, D, D1, D2 and
D3 attached to Exhibit 2 and
Exhibit 7, came from Lands
Commission Secretariat. All the
exhibits, except Exhibit 7 had
the 1959 transaction on it. DWI
Mr. Treboah Kwame Yamoah Haizal,
an official from Lands
Commission at the public and
vested lands Management
Division, Accra, gave evidence
and Tendered Exhibits 18 and 19.
Exhibit 18 is a copy of the
Subpoena Ad Test, which had
copies of Exhibits E and E1
attached.
Exhibit 19 is an unsigned search
report conducted by the officer
in charge (GARRO) Cantonment.
It is also undated. Even though
the Subpoena was issued to
Lands Commission to provide
information Exhibit 19 shows
that Land Commission officer
paid an amount of GH¢21.60 to
the Executive Secretary for
information. This unsigned
report does not include the 1959
Deed of Gift. However at the
back of the unsigned report
which has a receipt, it is
stated in hand written that “NB
please information copied from
the ledger. (3) The whole site
again falls within GCL NO34/2000
Judgement dated 15/12/82 in
favour of Numo Nmashie family
land of Teshie, Civil Appeal No
49/80. This has been signed,
but at the back of a typed
unsigned sheet within Exhibit 19
but not included in the
information on the face of
exhibit 19.
If the 1st
Defendant’s Exhibit conducted on
18th April 1999 is a
genuine report, why does it not
include the 1959 transaction,
and the Judgement recorded at
the back of one of the search
reports in Exhibit 19? Exhibit
19 itself excluded the 1959 Deed
of Gift.
It is my candid view that
Exhibit 19 was procured by the 1st
Defendant as a support for its
Exhibit 7 which has no record of
the 1959 transaction. Since DWI
admits that Exhibit E and E1
come from the records of Lands
Commission, I accept Exhibit E
and E1 as genuine documents from
Lands Commission and reject the
typed unsigned information on
Exhibit 19 and Exhibit 7 as
fraudulently prepared.
In summary I declare title to
all that piece or parcel of land
covered by land certificate NO
GA 22 444 dated 19th
day of December 2008 in the
plaintiff company.
b) Any part of the Judgement
dated 25th July 2007
in suit NO L210/99 which affects
the land covered by land
certificate NO GA 22444 dated 19th
December 2008 is set aside.
c) The plaintiff is to recover
any portion of the said land
which is in possession of the 1st
Defendant.
d) The 1st
Defendant, its agents, servant,
privies etc are
perpetually
restrained from dealing or
interfering with the land in
dispute.
e) The 1st
Defendants Counter claim against
the plaintiff is
dismissed. The plaintiff
shall have cost of GH¢4,000.00.
(SGD.) MR. JUSTICE S.H.
OCRAN Justice of the High
Court
Counsel: Mr. Alfred
Adjei-Mensah for plaintiff.
Miss
Felicia Nettey with Daniel
Asiedu-addo and Miss Welhimina
Quist Therson holds
Mr. Richard Amofa’s brief for 1st
Defendant
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