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_____________________________________________________________
J U D G M
E N T
______________________________________________________________
There is no doubt that the
disputed land belongs to Okpelor
Sowah Din family of Teshie and
Nmai Dzorn, Accra. Indeed both
parties concede that
Okpelor Sowah Din family owns a
large tract of land in Nmai
Dzorn and the
disputed
portion in this case constitutes
only two plots of the said land.
The law is settled that it is
the head of family acting in
concert with
principal elders/members who
have the legitimacy and the
legal capacity to alienate or
otherwise dispose or sell family
land.
Accordingly, plaintiff obtained
a grant of the disputed two
plots from the then head of the
Okpelor Sowah Din family, Eugene
Odametey Sowah in 1999
and this grant was subsequently
evidenced in writing per a
document dated
30th January 2000.
This lease document was tendered
as Exhibit ‘B’ which shows a
lease of 99 years duration which
was executed between Eugene
Odametey Sowah, head and lawful
representative of Okpelor Sowah
Din family of Nmai Dzorn,
Teshie, Accra on one hand and
Abraham Togbe Adorgu (plaintiff
herein) on the other hand.
The evidence showed
that the land acquired initially
consisted of four plots but 1st
defendant wrongfully deprived
plaintiff of 2 plots thereof.
Thus two plots remained for
plaintiff to protect for his
use. Plaintiff accordingly
erected fence wall around the
remaining two plots and then
built one room structure on it
and then also put a caretaker
who happened to be PW1 in that
structure. Plaintiff also put
about 1000 pieces of blocks and
5 trips of sand on the land.
Something happened
in the course of the trial of
this case which cannot escape
comment. It has to do with the
fact that defendants not only
denied themselves the right of
cross-examining plaintiff’s
attorney but also exhibited a
rather condemnable cavalier
attitude in the conduct of this
case.
Indeed on 11th
January 2011, the court then
constituted by His Lordship
Justice Amos Buertey, Esquire
had this to say:-
“At the last
adjourned date I ordered that
if counsel
for the defendants is not in
court today to cross-examine
the plaintiff any further I
will proceed with the case.
The counsel for defendants is
not in court today. The
representative of the 2nd
defendant who is in court says
he cannot continue with the
cross-examination unless he
sees his lawyer. I take it
that defendants do not want to
further cross-examine the
plaintiffs.
I now call upon the plaintiff
to put his witness in
the box”
Before the then
learned judge handing the case
was constrained to proceed in
this manner he had cautioned
defendants thus:-
“Should counsel for the
defendants not appear in
court to continue his
cross-examination, I will take
it that he has no further
questions to ask the witness
and I will ask the
plaintiff to call his next
witness”.
It appears that
defendants utterly disrespected
this warning.
The effect of the
conduct of defendants is that
plaintiff’s evidence adduced
by his lawful attorney stands
unchallenged.
I therefore find
that plaintiff acquired the
disputed land in 1999 from
Eugene Odametey Sowah, the then
head of Okpelor Sowah Din
family. Following this
acquisition, plaintiff took
possession by erecting fence
wall and putting up a single
room structure as well as
depositing some building
materials on the land.
It appears that
somewhere along the line, in the
year 2002, due to internal
wranglings in the Okpelor Sowah
Din family coupled with perhaps
the fact that the health of
Eugene Odametey Sowah was
gravely failing, the elders of
the family by power of attorney
appointed 1st
defendant as the person to deal
with the family land, among
other things. It is on
assumption of that position that
1st defendant sold
the land that plaintiff had
already acquired to 2nd
defendant.
In my view, the
disposition of the land by 1st
defendant to 2nd
defendant when that land had
already been disposed of in
favour of plaintiff by the same
family in 1999 or even 2000 was
palpably invalid. As a matter of
law 2nd defendant
obtained no interest as none
existed in the land for 1st
defendant to have given to him.
Besides, in 1999 or
2000 when the family granted the
land to plaintiff, the so-called
power of attorney by which 1st
defendant was mandated or
empowered to deal with the
family land had not come into
existence.
Therefore at the
time 1st defendant
purportedly granted the same
land to 2nd
defendant, that land had been
encumbered to the extent that it
was not permissible for the
family to grant the land to
another person, let alone the 2nd
defendant.
The substance of
defendant’s case is worsened by
the fact that the so-called
power of attorney which was
pleaded and which defendants
relied on was not even tendered
into evidence.
The existence of the
so-called power of attorney from
which 1st defendant
purported to derive his capacity
and mandate to sell and deal
exclusively with all family
lands at Nmai Dzorn was denied
in paragraph 2 of the reply to
the amended statement of defence
filed on 11th May
2011.
The onus of proof
therefore lay on defendants to
positively prove the existence
of the said power of attorney as
well as its enabling contents.
Surprisingly defendants woefully
failed or otherwise neglected to
discharge this burden. What
makes it the more surprising is
that the power of attorney was
listed as one of the documents
defendant would tender into
evidence. Besides, it had been
exhibited in the course of
certain interlocutory matters
in the case. Yet it was not
tendered in the trial, where it
mattered most. This failure is
another reason for accusing
defendants of exhibiting
condemnable cavalier attitude in
defendant this case.
From the foregoing,
I deem it unnecessary to comment
on the other ancilliary issues.
For my view is that plaintiff is
entitled to judgment.
Accordingly, plaintiff is
declared the owner of all that
piece or parcel of land situate
lying and being at Nmai Dzorn
Accra and containing an
approximate area of 0.25 acre or
0.10 hectare particularly
depicted in the site plan
attached to Exhibit ‘B’. I order
recovery of possession of the
said land in favour of
plaintiff. For general damages
for trespass I award plaintiff
GH¢5,000.00. It is further
ordered that defendants by
themselves, agents, assigns,
privies and anybody claiming
through them are restrained from
interfering in whatever manner
with the said land. Plaintiff is
awarded costs of GH¢3,500.
(SGD) ANTHONY OPPONG
JUSTICE OF THE HIGH COURT.
LAWYERS:
JOE ATTIPOE ESQ; FOR PLAINTIFF
ERIC AGBOLOSU ESQ; FOR
DEFENDANTS.
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