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JUDGMENT
BY COURT:
On 25th April, 2003,
the Plaintiff filed this writ
and claimed the following:
1.
Declaration of title to that
entire house No. 2 Denchira
Loop, Kotobabi Teslima, Accra.
2.
Perpetual Injunction restraining
the Defendants whether by
themselves, servants agents,
assigns representatives or
whosoever from intermeddling
with H/No. 2 Denchira Loop,
Kotobabi, Accra.
3.
Cost
The Statement of Claim that
accompanied the writ was amended
on 9th June, 2009.
Defence to the Amended Statement
of Claim with a Counter claim
was filed on 21st
July, 2009 and a reply was filed
on 28th July, 2009.
The Plaintiff’s case per his
pleading is that he has
instituted this action as the
customary successor of his late
father Alhaji Osmanu Lobi Giwah,
late of house No. 2 Denchira
Loop, Kotobabi, Accra. That the
Plaintiff’s grandfather, Alhaji
Norga of Cowlane, Accra, devised
the house in dispute to his son
Alhaji Osumanu Lobi Giwah, who
was the Plaintiff’s father.
That Alhaji Norga bought the
house from Alhaji Asane N’diaye.
That on 30th July,
1973, probate was granted to the
Will of Alhaji Norga. That the
Plaintiff’s father took
possession of this house since
1973 without any disturbance
from anybody.
That his late father died in
June, 1975 and thereafter the
family of his deceased father
continued to occupy this house.
Whilst in occupation they have
made additional rooms and
renovations to the house. That
in 2003, the 1st
Defendant who purported to be
the owner of the house sold it
to the 2nd Defendant
and purported to eject the
Defendants and his tenants from
the house. The Plaintiff
pleaded further that by virtue
of the long period of about 34
years possession and
improvements on the house by the
Plaintiffs without challenge
from anybody, the Defendants
claim to the house is statute
barred.
The Defendants denied the
Plaintiff’s claim and pleaded
that the house in dispute, was
formerly House No. C 175/11
Kotobabi (Teslima). That it was
acquired by the 1st
Defendant’s great grandmother by
name Asimawu Afoda who died
intestate in 1961. Even though
the Defendants pleaded that
Asimawu Afoda died intestate in
1961, they also pleaded that she
devised the house to her
granddaughter Sinabu Jaye
Asimawu, also known as Seynabu
N’diaye.
That amongst Asimawu Afoda’s
executors was Alhaji Geewa, who
was the Plaintiff’s grandfather.
The Defendant’s pleading also
stated that 1st
Defendant’s mother Seynabu
N’diaye was forced out of the
Country in 1979 to Senegal and
subsequently went to Canada
where she was said to have
died. During the period that
the 1st Defendant’s
mother was said to have died,
one Fati Diop, the 1st
Defendant’s mother’s friend took
the 1st Defendant to
the house and informed him that
the house belonged to his mother
so it should be handed over to
him. That it was at that time
that the Plaintiff’s deceased
brother, who was then living in
the house told him that the
house had been sold to their
father.
That when the 1st
Defendant’s mother resurfaced,
she challenged the alleged sale
of the property and caused the
arrest of the Plaintiff’s
brother. The Defendants also
pleaded further that when the 1st
Defendant’s mother realized that
the property had been willed to
her, she consolidated her
ownership and took a lease from
the Osu Stool, and that lease
was dated 1st May,
1967. The Defendants pleaded
further that the Plaintiff’s
grandfather knew very well that
the property did not belong to
El’hadji Asane N’diaye and that
it was fraudulently sold to
him. The particulars of fraud
was given and will be referred
to in due cause. The Defendants
pleaded further that if indeed
any property was devised by
Alhaji Norga to Osumanu Lobi in
his will, then that property is
not the property in dispute.
The Defendant’s counterclaimed
for the following:
a)
A declaration that the piece or
parcel of land situate lying and
being at (Teslima ) Kotobabi –
Accra in the Greater Accra
Region containing approximate
area of 0.275 acre and then
bounded on the North-west by the
Osu Stool land measuring 100
feet more or less on the
South-east by the Osu Stool land
measuring 100 feet more or less
on the North East by Osu Stool
land measuring 120 feet more or
less and on the South-West by an
existing lane measuring 120 feet
more or less together with the
building thereon now known as
H/No. 2 Denchira Loop – Kotobabi
Accra remains the property of
Seynabu N’diaye.
b)
Declaration that 1st Defendant,
the only surviving child of the
said Seynabu N’diaye has the
right to dispose off the said
property.
c)
A declaration that the land
title certificate No. GA6167 was
obtained by fraud or mistake and
therefore be recalled by the
Chief Registrar of Lands for
cancellation.
d)
An Order directed at the Chief
Registrar of Lands, Accra to
rectify the Land Register
accordingly.
e)
An Order of recovery of
possession.
f)
An Order of Perpetual Injunction
to restrain the Defendant by
himself, his assigns, agents,
family, servants and workmen
from further interfering
howsoever with the property in
dispute.
On 27th June, 2004,
the issues set out in the
application for Direction filed
on 1st December,
2003, were set down as the
issues for trial with the
Ominbus issue clause.
The issues set down for
determination were as follows:
i.
Whether or not H/No. 2 Denchira
Loop was sold to Alhaji Norga.
ii.
Whether or not the said Alhaji
Norga made a will devising the
said house to Plaintiff’s late
father.
iii.
Whether or not Plaintiff has
been in exclusive possession
since 1973.
iv.
Whether or not Plaintiff’s
father’s title was registered.
v.
Whether or not the Plaintiff has
made extension to the house.
vi.
Whether or not the 1st
Defendant had any title to
transfer to 2nd
Defendant.
vii.
Whether Plaintiff is entitled to
the reliefs sought.
From the pleadings and the
evidence of the parties, an
important issue which should
have been set down but was not
is as follows:
1.
Whether or not the 1st
Defendant’s claim to the house
in dispute is statute barred.
This issue is clearly
discernible from the pleadings
and the evidence and Counsel for
the parties have also addressed
on it.
On issue one, the Plaintiff
pleaded in his paragraph 9 that
by a document dated 11th
July, 1972, the said house was
sold to the grandfather of
Plaintiff, Alhaji Norga of Cow
Lane, by one Alhaji Asane
N’diaye Chief of Senegalese in
Accra and father of Madam Senabu
N’diaye the mother of the
Plaintiff. This document was
tendered as exhibit ‘C’.
Exhibit ‘C’ is dated 11th
July, 1972 and it says “I Elhaji
Asane N’diaye, Chief of the
Senegalese in Accra and also of
House No. C. 67/12, Nima, Accra
have today received an amount of
¢2,000.00 (Two Thousand Cedis)
from one Alhaji Norga of Cowlane
Accra, being the selling / cost
price of my daughter’s building
named Senabu N’diaye, which is
situate at Accra New Town
(Teslima) Kotobabi, Accra House
No. C 175/11, Kotobabi Accra.”
From the Plaintiff’s pleading,
the house is numbered 2 Denchira
Loop, Kotobabi, Accra. The house
sold was No. C 175/11 Kotobabi,
Accra. There was no indication
that the house had an earlier
number, and that it had been
changed. It was rather the
Defendant who pleaded that the
house was formerly H/No. C
175/11 Kotobabi (Teslima) and
that it was acquired by Asimawu
Afoda. That the Defendant
pleaded further that Asimawu
Afoda devised this house in her
will dated 20th September 1954
to her grand daughter Sinabu
Jaye Asimawu also known as
Seynabu N’diaye. The Plaintiff
denied these assertions by the
Defendant in his reply filed on
28th July, 2009.
With this denial the Defendants
were to proof that House No.2
Denchira Loop, Kotobabi was
formerly House No. C 175/11
Kotobabi (Teslima) and that this
is the house devised in the Will
of Asimawu Afoda. That Sinabu
Jaye Asimawu is the same person
as Seynabu N’diaye..The
Plaintiff was also under an
obligation to proof that house
No. 2 Denchira Loop, Kotobabi
was the property that was sold
and that his late father, had
occupied the house for nearly
thirty- seven years as an owner.
To proof the Defendant’s
assertion the will of Asimawu
Afoda with probate attached was
tendered as exhibit 1. The
Plaintiff also tendered his
grandfather’s will with probate
attached as exhibit ‘B’. In
exhibit 1, the only house that
the number was given was House
No. D 802/4, Granville Avenue,
Accra. The other house
mentioned was said to be house
at Kotobabi, in the municipality
of Accra. No house number was
given. The Defendants did not
lead evidence that the
unnumbered house at Kotobabi
which was mentioned in Asimawu
Afoda’s Will is the house which
is currently in dispute, and
that the number has been changed
to No. 2 Denchira Loop, Kotobabi
Accra.
In exhibit ‘B’ which is the
Plaintiff’s grandfather’s Will,
clause 1(f) described the house
as “my house at Accra New Town,
Known as House No 175. Since it
is the Plaintiff who alleged
that house No. 2 Denchira Loop
was sold to Alhaji Norga, the
burden was on him to proof
that. The Plaintiff relied on
exhibit ‘C’ which is dated 11th
July, 1972 as the basis of that
assertion. If the house in
dispute is that mentioned in
exhibit ‘B’ which is dated 11th
November, 1967 then that cannot
be the house in exhibit ‘C’.
This is so because in November,
1967 when the Will was made,
House No. C 175/11 Kotobabi
(Teslima) the subject matter of
exhibit ‘C’ had not been
bought. I therefore hold that
House Number 2 Denchira Loop
cannot be the same as house No.
C 175/11 Kotobabi (Teslima)
which is alleged to be the
subject matter of sale in
exhibit ‘C’. The discovery of
exhibit ‘C’ by the Plaintiff
does not mean that was referable
to the house in issue.
The next issue is whether Alhaji
Norga made a will and devised
house number 2 Denchira Loop to
the Plaintiff’s father. The
Plaintiff did not plead anywhere
that house No. 2 Denchira Loop,
Kotobabi was formerly House No.
175 Accra Newtown. What the
Plaintiff pleaded was that his
father had been living in this
house before his death and after
his death, his family have been
living in this house. It is
the house that they have been
occupying which had been sold by
the 1st Defendant.
The Defendant described the
house as H/No. C 175/11,
Kotobabi Teslima, and this he
said was the original number.
The Plaintiff denied this. In
exhibit 1, the house was simply
described as House at Kotobabi
in the municipality of Accra.
Since all the parties have not
been able to led evidence to
establish that the house devised
in exhibit 1 and ‘B’ are the
same as House No. C 175/11
Kotobabi Teslima, the subject
matter of the alleged sale, and
both Plaintiff and Defendant,
from the evidence do not seem to
have personal knowledge of the
transactions that they purported
to lead evidence on with regard
to house No. C175/11 Kotobabi, I
hold that house number C 175/11,
Kotobabi is not the same as
House No. 2 Denchira Loop
Kotobabi.
The Plaintiff however led
evidence that his father lived
in this house which he called
No.2 Denchira Loop, Kotobabi
before his death in 1975. After
his death his family had been in
possession without any challenge
till 2003. That his father’s
family had not only lived in it,
but also made improvements to
it, without anybody challenging
them. The 1st
Defendant also led evidence that
his mother and members of his
family have never lived in this
house before. I therefore hold
that Alhaji Norga made a Will
devising a house to Plaintiff’s
father, and that house had been
in their occupation to date.
The Defendant pleaded that if
the Plaintiff claims that his
grandfather bought this house,
then it was fraudulently bought
and same should be set aside,
since it did not belong to the
person who sold same. The 1st
Defendant pleaded and also led
evidence that his mother became
aware of her right to the house
in 1967.
If the 1st
Defendant’s mother knew that the
house belonged to her, as being
the house devised to her by her
grandmother, and that it had
been sold, then she should have
taken steps to recover same,
when that knowledge came to her
in 1967.
The 1st Defendant
however tendered exhibit 2 as
proof of the assertion in
paragraphs 14 and 16 of the
Defence. The indenture exhibit
2 is dated 1st May,
1967. If the 1st
Defendant’s grandmother died on
24th day of May,
1961, and probate was granted on
28th July, 1961 and 1st
Defendant’s mother became aware
of her ownership in May, 1967,
then one may ask; ‘why did the 1st
Defendant’s mother not claim her
house, if the house in which the
Plaintiff’s father lived was the
house that was willed to her.
From exhibit 1, it was stated
that “attaining the age of
twenty-one or on her marrying
before attaining the age, which
ever happens first, my Executors
and Trustees should vest the
under mentioned freehold
properties in her …”
Who this person is has been
erased from the exhibit 1.
However, in paragraph 2 of
exhibit 1 it was stated that “I
give devise and bequeath all my
property which I may die
possessed of to my grand
daughter SINABU JAYI ASIMAWU.
The Plaintiff denied the
Defendant’s paragraph 4 which
stated that Sinabu Jaye Asimawu
is also known as Seynabu N’diaye
in the reply. Since this
paragraph 4 of the Defence had
been denied, the Defendant had
to proof that SINABU JAYI
ASIMAWU was the same person as
Seynabu N’diaye. The Defendant
never proved that. The
Plaintiff however led evidence
that the 1st
Defendants mother was Zenabu
Ndiaye. This evidence of the
Plaintiff was never challenged.
It was not also suggested to the
Plaintiff that Zenabu N’diaye
was also called Sinabu Jayi
Asimawu as appeared in exhibit
I. Again the 1st
Defendant himself gave evidence
that her mother is Zenabu
N’diaye but not Sinabu Jayi
Asimawu.
Counsel for Defendant has
argued that when the 1st
Defendant was cross- examined on
the Will, to the effect that
nothing was devised to Zenabu
N’diaye, who is his mother, he
answered by indicating that
Zenabu Jaye is the same as
Zenabu N’diaye. For the
avoidance of doubt, I reproduce
the evidence under
cross-examination.
Q. The will you tendered never
devised anything to Zenabu
N’diaye who is
your mother.
A. It was given to my mother,
(the said Will was shown to the
1st Defendant
and he read
paragraph 2).
Q. In paragraph 2 of the Will
the name there is Jayi Asimawu
not your mother Zenabu
N’daiye.
A. Jayi is the name of my
grandfather. My mother is
called Jayi zenabu.
Q. The Will did not describe
the house in dispute as being
the one given to
Jayi Asimawu as being the
house in dispute.
A. That is why my mother went
for the indenture.
These answers suggest that the 1st
Defendant’s mother is either
Jayi Zenabu or Zenabu N’diaye
but not Sinabu Jayi Asimawu as
mentioned in exhibit 1. The
legal position is that if a
party is challenged on an
averment, that person must proof
that averment. It is not enough
for a party to repeat the
averment in the witness box as
was held in the cases of
Barkers-Woode vrs. Nana Fitz
(2007-08) SCGLR 879, Dzaisu &
others vrs. Ghana Breweries LTD.
(2007-08) SCGLR 539.
In this case the 1st
Defendant himself never led
evidence that his mother was
called Sinabu Jayi Asimawu, and
also did not call anybody to
corroborate that claim. From
the pleadings and the evidence I
hold that Sinabu Jayi Asimawu is
not the same as Zenabu N’diaye.
The Defendant gave evidence that
her mother did not take control
of the house, and that she did
not also leave the house in the
care of anybody. That the
executors did not hand over the
house to his mother. That he the
1st Defendant had not
put any tenant in the house and
nobody accounts for rent. He
had also not taken any letters
of Administration to administer
her mother’s estate.
The 1st Defendant
pleaded and gave evidence that
when his mother realized that
her grandmother had willed the
property to her, she
consolidated her ownership by
securing an indenture from the
Osu Stool. Under
Cross-examination, 1st
Defendant admitted that because
the Will did not describe the
house, his mother went for the
indenture. The Indenture was
admitted as exhibit 2 and it is
dated 1st May, 1967.
On what basis did the 1st
Defendant’s mother go for
exhibit 2, since he admits the
Will did not describe the house
in exhibit 1?
In exhibit 2, no reference was
made to Sinabu Jayi Asimawu. It
rather stated that Seynabu
N’diaye took a customary grant
from the Osu Stool in 1935, and
had built a dwelling house on
it. If exhibit 2 was referable
to exhibit 1 it would have been
recited in it that Asimawu Afoda
devised the land to Sinabu Jayi
Asimawu, but this was not done.
The Plaintiff however gave
evidence that his father lived
in this house where he is
presently living. That after
his father’s death in 1975, his
brother continued to be in
possession of this house. That
they did not only have
possession, but also made
improvement to it. It is trite
that possession is evidence of
ownership unless there is proof
of a better title. Ref: Aidoo
Vrs. Adjei (1976) 1 GLR 431
holding 1 and Twifo Oil
Plantation Project Ltd Vrs.
Ayisi and Ors. (1982-83) GLR 881
Holding 5. Again even if the
issue of a sale had not been
proved, the case of Akoto II
vrs. Kavege (1984-86) 2 GLR 365
says sustained possession may be
used as roof of title.
Since the 1st
Defendant claims that his mother
became aware in 1967, one would
have expected that she would
have insisted that income from
the house should be rendered to
her, if in truth, the house had
actually been willed to her.
Again, assuming she was not an
adult in 1967, even though she
took a lease in her name at that
time, she should have done so by
1972 since the 1st
Defendant himself says he was
born in 1972. Having given
birth in 1972, she might be an
adult as at that time. Again in
1979 she was working at GBC yet
she took no steps to recover
this house if it was really
hers. Not having taken any
action to recover the house or
even called for Accounts for all
these year, the 1st
Defendant is esstopped from
claiming this house even if it
is the house that was devised in
the will of Asimawu Afoda and
the 1st Defendant’s
mother happened to be the said
Sinabu Jayi Asimawu mentioned in
exhibit 1.
This is so because it is
provided by the Limitation Act
172 (N.C.R.D. 54) S.10 (1) and
(6) that
10 (1) No action shall be
brought to recover land after
the expiration of twelve years
from the date on which the right
of action accrued to the person
bringing it or if it first
accrued to some person through
whom he claims to that person”.
(6) On the expiration of the
period fixed by this Decree for
any person to bring an action to
recover land, the title of that
person to the land shall be
extinguished”.
In this case the Defendants say
that since they did not commence
the action, but it was commenced
by the Plaintiff, Section 10 of
the Limitation Act may not apply
to them. Again they say that
since they have pleaded fraud,
section 10 should not apply.
Even though the Plaintiff
commenced the action, the
Defendants have also
counter-claimed for Declaration
of Title and recovery of
possession. Section 10 of the
Limitation Act therefore can be
applied against them. In GIHOC
REFRIGERATION & HOUSEHOLD
PRODUCTS LTD VRS. HANNA ASSI
(2005-06) SC GLR 485, The
Supreme Court held that title to
land might be acquired by
adverse possession; but was not
derivative in that it did not
flow from the title of the
original owner which had been
extinguished by such adverse
possession. Such a possessory
title could be forced on a
purchaser. Consequently, a
person who had been in adverse
possession of a land for more
than twelve years in terms of
section 10(1) and (6) of the
Limitation Decree, 1972
(N.R.C.D. 54), would be entitled
to a declaration of possessory
title. Contrary to the decision
of the Court of Appeal, such
adverse possessory title could
be used both as a sword and a
shield.”
Dr. Date-Bah JSC said in the
case above that the combination
of the extinguishing of the
original owner’s rights under
section 10(6) of the Limitation
Decree, 1972 (N.R.C.D. 54), with
the barring of action against
the adverse possessor under
section 10(1), must in logic
result in the adverse possessor
being construed to have gained a
right that is enforceable by
action. Otherwise, there would
be the risk of “ownerless lands”
resulting from a contrary
interpretation of section 10 (6)
of the Limitation Decree.
Having held that the house in
dispute is not that which was
devised in the will of Asimawu
Afoda, and that Zenabu N’diaye
is not the person described in
exhibit 1 as Sinabu Jayi Asimawu
the issue of fraud pleaded in
the Defendant’s Defence should
have been ignored.
For the avoidance of doubt, I
will want to consider the
pleaded fraud. These are as
follows:
a.
That Alhaji Assane N’diaye (1st
defendant’s mother’s father) and
Alhaji Norga (the purchaser of
the property) were good friends
and both of them knew very well
that the property belonged to
Seynabu N’diaye.
b.
That no indenture was executed
to witness the alleged sale of
the property yet plaintiff
managed to obtain Land Title
Certificate in respect of
property.
c.
That the time the said Land
Title Certificate No. Ga 6167
was obtained in the name of
OSUMANU LOBI, the said OSUMANU
LOBI was dead.
d.
That plaintiff or his father
knew very well that the said
Alhaji Norga never willed the
property in dispute to Osumanu
Lobi yet plaintiff applied and
managed to obtain the Land Title
Certificate.
e.
That the requirement for
obtaining Land Title Certificate
was not satisfied before the
certificate was issued.
On particulars ‘a’ and ‘b’ I
wish to state that since I have
held that the house devised in
exhibit ‘B’ may not be the house
the subject matter of exhibit
‘C’, particulars ‘a’ and ‘b’
will not affect that
transaction. Granted that it is
even the same house, the 1st
Defendant’s mother became aware
of his ownership in May, 1967
yet she did not take any action
to recover the house. The 1st
Defendant gave evidence that
when her mother came back from
exile she caused the arrest of
the Plaintiff’s brother. The 1st
Defendant was challenged on
this. He did not mention the
date that the arrest took
place. He did not call anybody
to corroborate, not even Fati
Diop. Since he admits that the
1st Defendant’s
brother is dead, the 1st
Defendant was under an
obligation to proof this as held
in Kwabena Addo vrs. Adwoa
Anyowuo & ors. (2006) 6 MLRG 1
and he woefully failed in this.
Even if there had been fraud,
since she became aware of her
right in 1967 but she took no
step, she will be esstoped from
recovering the house.
On particulars ‘c’, ‘d’ and ‘e’,
it is my holding that the
Judgement was not based on the
land title certificate but on
the fact of possession for over
30 years without challenge from
the Defendants.
The 1st Defendant
knew before he sold the house to
the 2nd Defendant
that the Plaintiff’s family had
been occupying this house as
owners. If he wanted to sell,
he should have recovered it from
the Plaintiff before selling.
According to the 1st
Defendant the house was not
vested in his mother before her
death. This means the house in
dispute did not form part of his
mother’s estate. The 1st
Defendant did not also apply for
letter of Administration before
he sold the house to the 2nd
Defendant. Since the house was
not part of the 1st
Defendant’s mother’s estate, and
he the 1st Defendant
has no letters of Administration
to administer her mother’s
estate he had no capacity to
sell the house in dispute even
if it formed part of his
mother’s estate. Since the 1st
Defendant had no right to sell
the house the 2nd
Defendant bought nothing.
In Conclusion, I enter Judgment
for the Plaintiff and declare as
follows:
1.
House No. 2 Denchira Loop,
Kotobabi, Accra is the property
of the Plaintiff, as the
customary successor of Alhaji
Osumanu Lobi Giwah ( deceased).
2.
The Defendants, their agents,
servants, privies etc are
perpetually restrained from
interfering with H/No. 2
Denchira Loop, Kotobabi, Accra.
The Defendant’s Counter-claim is
dismissed.
The Plaintiff is awarded cost of
GH¢5,000.00.
(SGD.) MR. JUSTICE S.H.
OCRAN
Justice of
the High Court
Counsel: Mr.
Joseph Kaponde for Plaintiff.
Mr. Claud Oppong for
Defendants.
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