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JUDGMENT
1. Ayikai Doblo is a Ga
settlement near Amasaman in the
Ga District of the Greater Accra
Region. There is no dispute that
Ayikai Doblo has three
significant principal families.
These are the Okaine Mensah (We)
family which the instant
Plaintiff claims he is head of,
the Doblo (We) family and the
Nii Kweifio (We) family. But
there are other smaller family
units all of which are said to
have family ties with one or
more of the three principal
families. The three families are
said to jointly own Ayikai Doblo
lands from time immemorial
dating nearly 300 years ago. It
is also not in dispute that the
Defendant herein is the Chief of
Ayikai Doblo and hails from one
of the 3 principal families, the
Nii Kweifio We, where he is not
the head thereof.
2. By a Statutory
Declaration dated 15th
day of July 1973 Registered as
No. 1600/1973 one Nii Odartei
III had claimed ownership of a
parcel of land at Nsakina
measuring approximately 5065
acres in area. The said
declaration had affected a
parcel of land measuring
approximately 780.53 acres which
by a deed of disclaimer dated
2/3/87 the said Nii Odartei III
released to Nii Ayikai Okaine
aka Adjeitse deceased father of
Plaintiff herein and Nii Doblo
Ayikai II the Defendant herein
as RIGHTFUL OWNERS.
(The emphasis is mine)
From the facts of this suit the
ownership and control of the
said parcel of land released
under the deed of disclaimer has
resulted in a dispute which has
given rise to this suit. Among
other issues, a judicial
determination of the ownership
of the entire Ayikai Doblo lands
and how those lands can be
properly and lawfully alienated
was also set down for
determination.
3. In his Amended
Statement of Claim field on
20/5/08 and further amended with
leave on 24/9/08 the Plaintiff
claims against the Defendant as
follows:
“(a). A declaration that the
whole of the Ayikai Doblo family
lands described in paragraph 3
of the Amended Statement of
Claim is the joint property of
all three families of Ayikai
Doblo, namely Okaine Mensah We,
Doblo Shia and Nii Kweifio We,
with the Okaine Mensah We being
the principal family that leads
the three families.
(b). A declaration that save
for the piece of land described
in schedule 1 no single member
or Head of any of the three
families and no two of the said
families without the third
family can validly alienate
Ayikai Doblo lands or any
portion of it.
(c). A Declaration that only
the heads of the three families
currently the Plaintiff, the
head of family of Defendants
Kweifio We and J. O. Lamptey
acting jointly can validly
alienate Ayikai Doblo lands or
any portion of it (save for the
piece of land described in
schedule ‘1’).
(d). A Declaration that the
purported alienation of Ayikai
Doblo lands by the Defendant is
illegal and does not confer any
title on any person, the same
being null and void and of no
effect.
(e). A declaration that any
third party who enters onto or
deals with Ayikai Doblo lands in
reliance on any purported grant
by the Defendant commits
trespass.
(f). Any purported
alienation by the Defendant
alone of any portion of schedule
‘1’ save for the 180 acres
carved for him is void and of no
effect and therefore does not
confer any title on any person
or in the alternative.
(g). Any purported alienation
by the Defendant alone of any
portion of schedule 1 is void
and of no effect and therefore
does not confer any title on any
third party.
(h). An order perpetually
restraining the Defendant
whether by himself or his agents
purported assigns workmen or
other howsoever from alienating
Ayikai Doblo lands or any
portion of it without the heads
of Okaine Mensah We (currently
the Plaintiff) and Doblo Shia.
(i). An order perpetually
restraining the Defendant
whether by himself or his
agents, purported assigns
workmen or other howsoever from
alienating any portion of
schedule 1 (save the 180 acres
carved out for him and his
family;) or in the alternative.
(j). An order perpetually
restraining the Defendant alone
whether by himself or his
agents, purported assigns
workmen or other howsoever from
alienating any portion of
schedule 1.
(k). Recovery of possession
for the benefit of all the three
Ayikai Doblo families and the
Plaintiff as the case may be of
all lands wrongfully alienated
by the Defendant.
(l).
Further or other relief”.
4. By an Amended Statement
of Defence filed on 23/9/08 the
Defendant counterclaimed against
the Plaintiff as follows:
“(a). A declaration that the
land the subject matter of the
Deed of Disclaimer is the
legitimate property of Ayikai
Doblo family.
(b. A Declaration that the
land the subject matter of the
Deed of Disclaimer is not the
personal property of Nii Ayikai
Okaine alias Adjeitse Ayikai the
father of the Plaintiff.
(c). Perpetual injunction
restraining the Plaintiff, his
servants, privies workmen
assigns and all people claiming
through him from entering and
dealing in any manner with the
land the subject matter of the
Disclaimer which is in dispute.
(d). Recovery of possession
for the benefit of Ayikai Doblo
family and the Defendant any
portion of the lands unlawfully
encroached on or alienated by
the Plaintiff”.
5. THE PLAINTIFF’S CASE
The Plaintiff’s case is that he
is the stool father of Ayikai
Doblo and the eldest son of his
late father, Nii Ayikai Okaine.
He also claims to be a co –
administrator of the estate of
his late father. He asserts in
paragraph 3 of his Statement of
Claim that Ayikai Doblo lands
are jointly owned by three
families, they being Okaine
Mensah We, Doblo Shia, and Nii
Kweifio We. He gives a vivid
description of the Ayikai Doblo
family land which measures
approximately 4, 419.20 acres.
He further asserts that by
reason of the joint ownership of
Ayikai Doblo lands by the three
families, alienation of any
portion thereof can only be
lawfully done with the consent
and authority of the respective
heads of the families while
admitting that there have not
been any demarcation of the
entire Ayikai Doblo lands among
the three families.
It is the Plaintiff’s case that
some time during the lifetime of
his late father Nii Ayikai
Okaine, one Nii Odartei III the
head of Odarteiman family of
Nsakina purported to annex a
portion of Ayikai Doblo lands
which attempt was resisted by
his father. By a deed of
disclaimer dated 2nd
March 1987 the parcel of land
annexed by Nii Odartei III was
released to Plaintiff’s
father as the Stool father of
Ayikai Doblo and the Defendant
herein the chief of Ayikai Doblo
as rightful owners. (The
emphasis is mine).
In paragraph 7 of his Amended
Statement of Claim the Plaintiff
avers as follows:
“7. The Surveyor who
delineated the portion of land
covered by the Deed of
disclaimer, upon agreement by
both the Plaintiff’s father and
the Defendant, carved out about
180 acres out of the said 780.53
acres for the Defendant as being
his and his family’s share of
the said piece of land. So that
even though the said Deed of
Disclaimer was registered at
Lands Commission in the joint
names of the Plaintiff’s father
and the Defendant, the remaining
piece of land was intended and
infact recognised as belonging
to the Plaintiff’s father for
the exclusive benefit of his
family. The piece of land
covered by the deed of
disclaimer is shown on the copy
of site plan attached to his
Amended Statement of Claim as
SCHEDULE 1 and thereon edged
pink”.
It was further alleged by the
Plaintiff that sometime after
the death of his father the
Defendant herein without the
consent and/or authority of the
Plaintiff has resorted to
indiscriminately alienate
portions of the land contained
in schedule 1 hence this action.
6. I decided to quote
paragraph 7 of the Plaintiff’s
Amended Statement of Claim in
this judgment because it is to
my mind a very crucial pleading
for the Plaintiff in this case
and one for which Plaintiff
carries the burden of adducing
evidence in proof of to the
standard prescribed by law.
Secondly, the pleading in
paragraph 7 plainly offends the
rules governing pleadings as it
is not only argumentative but
attempts to introduce evidence
through the pleadings contrary
to the clear provisions of
Sections 61 and 62 of the
Evidence Act 1975 NRCD 323.
7. DEFENDANTS CASE
The Defendant has denied some of
the Plaintiff’s allegations in
his Amended Statement of Defence
filed on 23 – 9 – 08 and
proceeds to set up a
counterclaim.
The Defendant denies Plaintiff’s
claim of being the head of the
Okaine Mensah We of Ayikai Doblo
and further denies Plaintiff’s
claim that he is the eldest son
of his late father and stool
father of Defendant’s stool. He
admits the Plaintiff’s averment
that Ayikai Doblo lands are
owned jointly by the three
families of Okaine Mensah We,
Doblo We and Nii Kweifio We but
denies the Plaintiff’s assertion
that the Doblo Stool was created
for administrative convenience
only.
He avers in paragraph
9 of the Amended Statement of
Defence as follows:
“9. The Defendant
emphatically reiterates that it
is the chief of Doblo in concert
with the heads of the three
royal families Doblo We, Nii
Kweifio We and Okaine Mensah We
who are clothed with authority
to grant or alienate any portion
of Ayikai Doblo lands”.
The Defendant further denies the
Plaintiff’s claim that it was
Plaintiff’s father who single
handedly resisted the take over
of Ayikai Doblo lands by Nii
Odartei III of Nsakina and
asserts that it was he the
Defendant, the Plaintiff’s
father then a Stool father and
other heads of families such as
J. O. Lamptey and Ahmed Darku
Amponsah who successfully
resisted the takeover of Ayikai
Doblo lands in consequence of
which the deed of disclaimer was
executed.
The Defendant further states
that all Ayikai Doblo lands
including the subject matter of
the deed of disclaimer belong to
the three named families jointly
adding that any letters of
administration affecting any
portion of the land recovered
from Nii Odartei III and the
subsequent vesting of any
portion of the lands in the
Plaintiff and/or any other
person is void and a nullity.
8. ISSUES FOR TRIAL
The issues agreed by the parties
are contained in the application
for directions filed on 6/6/2007
and the additional issues filed
by the Defendant on 28/5/2008.
The Plaintiff settled
the following issues:
“(a). Whether or not all that
piece of land described in the
Plaintiff’s Statement of Claim
is the Plaintiff’s family land
or stool land?
(b). Whether or not the
Defendant has a right to dispose
off the land in dispute?
(c). Any
other issues arising from the
pleadings”.
The Defendant’s additional
issues are as follows:
“(i). Whether or not 180 acres
of land was carved out from the
land subject matter of the Deed
of Disclaimer for the Defendant?
(ii). Whether or not the
whole land which is the subject
matter of the Deed of Disclaimer
is the legitimate property of
the three royal families of
Ayikai Doblo, namely Doblo We,
Okaine Mensah and Nii Kweifio
We?
(iii). Whether or not the land
the subject matter of this suit
belongs to the Plaintiff’s
father?
(iv). Whether or not the land
the subject matter of this suit
is the legitimate and jointly
owned property of the three
royal families of Ayikai Doblo?
(v). Any
other issues arising from the
pleadings”.
It is clear that while the
issues filed by the Plaintiff
have fallen short of a
determination of the ownership
of the subject matter of the
deed of disclaimer, which is one
of the key issues arising from
the pleadings in this suit, same
has been adequately captured in
issue (ii) of the Defendant’s
additional issues and
consequently a determination of
the issues filed by both parties
would effectively determine the
dispute between the Plaintiff
and the Defendant.
9. The general position at
law in the determination of
issues by the court is that; to
enable the court decide a case
one way or the other, each party
to the suit must adduce evidence
on the issues to be determined
by the court to the standard
prescribed by law.
This position is buttressed by
section 14 of the Evidence Act
1975 NRCD 323 which provides
that;
“Except as otherwise provided by
law, unless and until it is
shifted, a party has the burden
of persuasion as to each fact
the existence or non – existence
of which is essential to the
claim or defence he is
asserting".
In this suit, the issues to be
determined are those issues set
out in the application for
directions and additional issues
as well as issues dictated by
law arising from the pleadings
filed by the parties.
10. Now, before I set out to
evaluate the evidence adduced at
the trial of this suit in order
to determine the key issues, I
shall firstly determine some
issues of law which have arisen
from the nature of the
Plaintiff’s pleadings against
the background of decided
authorities relative to the
issue.
I have already quoted in extenso
Plaintiff’s pleading in
paragraph 7 of the Amended
Statement of Claim filed on the
20/5/08.
In my opinion paragraph 7 of the
Plaintiff’s Amended Statement of
Claim is central to the dispute
between the Plaintiff and
Defendant because same is the
only factual basis on which the
Plaintiff claims exclusive
ownership of the subject matter
of the deed of disclaimer as
having been vested in him as
beneficiary.
Some legal issues arise from the
pleading in paragraph 7 of the
Amended Statement of Claim.
Firstly, by referring to an
attached ‘schedule 1’ presumably
a site plan to the Amended
Statement of Claim, the
Plaintiff has attempted to
adduce evidence through his
pleading and same is offensive
to the law on admissibility and
reception of evidence
particularly the provisions of
Sections 61 and 62 of the
Evidence Act 1975 NRCD 323.
In the case of GODKA GROUP OF
COMPANIES VRS. P. S.
INTERNATIONAL LTD. (2001 – 2002)
SCGLR 918 Civil Appeal No.
12/2000 the Supreme Court had
the opportunity of stating its
position on this kind of
practice. At page 921 holding 4
of the report ATUGUBA JSC said
as follows:
“The practice of attaching
documents to pleadings and
marking them as exhibits as was
done in the instant case, was
wrong. It was an attempt to
adduce evidence through the
pleadings but that was not
permissible under Order 19 Rule
4 of the High Court (Civil
Procedure) Rules 1954 LN 140A.
Judicial evidence must be given
by witnesses who before
testifying must take an oath or
affirmation that they will speak
the truth………….”.
Afreh JSC (of blessed memory) in
commenting on the practice said:
“Statements made without such
oath or affirmation are not to
be considered as evidence as
provided in section 61 of the
Evidence Decree 1975 (NRCD 323).
An exception to this rule is to
be found in Section 62 of the
Courts Act 1993 (Act 459) which
allow unsworn evidence to be
given by a person whose
religious belief does not permit
him to make any oath whatsoever
or who is of immature age…………”
11. In the light of the
above position of the law, the
result is that Plaintiff has
adduced no evidence on the area
of land covered by the deed of
disclaimer in support of his
case. However, Exhibit ‘2’ the
deed of disclaimer accompanied
by a site plan was tendered by
the Defendant through ‘PW1’, I
am unable to conclude that
Exhibit ‘2’ is the same document
Plaintiff has referred to in
paragraph 7 of the Amended
Statement of Claim as the
attached schedule 1. My reason
for this position is simple. The
site plan attached to Exhibit
‘2’ had been described as “Plan
of Land, Property of Ayikai
Doblo family situate at Ayikai
Doblo in the Ga District”.
In his defence to amended
counterclaim filed on 24/9/08
the Plaintiff had stated
categorically in paragraph 15 as
follows:
“The Plaintiff states further in
response to the Defendant’s
amended counterclaim that there
is no such family in Ayikai
Doblo known as Ayikai Doblo
family”.
If I construe Exhibit ‘2’ as the
‘Schedule 1’ Plaintiff has
alluded to, I would have imposed
on the Plaintiff a fact pleaded
by Defendant which he has
actually controverted.
In the result therefore, the
Plaintiff adduced no evidence at
all to support what schedule 1
in paragraph 7 of the Amended
Statement of Claim is supposed
to be. There is also no evidence
of the 180 acres of land he
alleges was carved out of the
subject matter of the deed of
disclaimer to the benefit of
Defendant and his family which
assertion has been denied by the
Defendant.
Secondly, neither the Plaintiff
nor any of the witnesses who
testified for him provided any
evidence on the nature of the
interest claimed to have passed
from the Plaintiff’s father to
the Defendant. There has been no
pleading whether in the Amended
Statement of Claim or Amended
Reply stating the exact
particulars of the transaction
described as a ‘carving of
180 acres of land’ in
favour of the Defendant. There
is no evidence to support either
the existence of a customary law
grant requiring evidence of
acceptance and thanks giving
‘aseda’ nor was any evidence
of a transfer cognizable under
the Conveyancing Act 1975 NRCD
175 adduced to support the
assertion.
At page 460 of their academic
work “Ghana Land Law and
Conveyancing”
B. J. da Rocha and CHK Lodoh
have stated the essential
features of a customary
conveyance to include
“(a). A particular interest in
land which is to pass from the
donor to donee.
(b). An intention
of the donor to make a gift.
(c). An acceptance of the
gift by the donee in the
lifetime of the donor.
(d). Delivery of
the land to the donee.
(e). Publicity of the gift”.
Significantly, none of these
ingredients of a valid customary
law grant was pleaded by the
Plaintiff nor was any credible
evidence adduced to support the
assertion that 180 acres of land
was carved out by Plaintiff’s
father in favour of the
Defendant and his family and
that the Defendant accepted same
whether at customary law or
otherwise.
Granted that the alleged carving
out of 180 acres out of the
subject matter of the deed of
disclaimer in favour of the
Defendant was a customary law
grant, another issue which
arises is with respect to
compliance with the statutory
requirements contained in
Section 2 of the Evidence Act
1975 NRCD 175 which states as
follows:
“No contract for the transfer of
an interest in land shall be
enforceable unless “(a). it is
evidenced in a writing signed by
the person against whom the
contract is to be proved or a
person who was authorized to
sign on behalf of such person”.
Contrary to the requirements of
the Conveyancing Act 1973 (NRCD
175) referred to above, the
Plaintiff failed to adduce any
evidence supporting the
agreement between his father and
the Defendant to share the
subject matter of the deed of
disclaimer as statute requires,
nor was there any evidence as I
have already observed, that the
transaction to carve out 180
acres of land in favour of
Defendant was a customary law
transaction since customary law
as has been held by the Supreme
Court in BROWN VRS. QUASHIGAH
2003 – 2004 SCGLR 930 knows no
writing.
In this suit, no evidence has
been adduced by the Plaintiff to
substantiate the facts pleaded
in paragraph 7 of the Amended
Statement of Claim. The
Plaintiff’s responsibility was
made even more burdensome in
view of the Defendant’s
consistent denial that, no such
portion of land comprising a
total of 180 acres of land or at
all was carved out for him and
his family at the instance of
Plaintiff’s father. I am aware
that there is no issue of a
boundary dispute between the
Plaintiff and Defendant but once
the Defendant has denied the
allegation that Plaintiff’s
father carved out 180 acres of
land for him, the identity of
the said parcel ought to have
been put forth by the Plaintiff
for the assertion to be believed
as credible.
13. I shall in the course of
this judgment relate these legal
issues arising from Plaintiff’s
pleading after my evaluation of
the entire evidence adduced by
and for the parties in order to
make the necessary findings.
14. Now what must the
Plaintiff prove in this case in
order to succeed on his claims?
The law of proof in Ghana is
regulated by the Evidence Act
1975 NRCD 323 and the common law
established by sound legal
opinions of the Superior Courts
in Ghana and in other
jurisdictions. The general
position is captured in the
principle. He who asserts must
prove. This position of the law
has been affirmed by Kpegah J.
A. (as he then was) in the case
of ZABRAMA VRS. SEGBEDZI (1991)
2 GLR 221 at 224 as follows:
“…….a person who makes an
averment or assertion, which is
denied by his opponent, has the
burden to establish that his
averment or assertion is true.
And he does not discharge this
burden unless he leads
admissible and credible evidence
from which the fact or facts he
asserts can properly and safely
be inferred. The nature of each
averment or assertion determines
the degree and nature of the
burden”.
15. The Plaintiff’s duty in
this suit is to prove his
allegations and assertions by
adducing evidence which is
satisfactory and in accordance
with the requirements of the
law.
In the case of MOJOLAGBE VRS.
LARBI (1959) GLR 190 at 192 the
Court stated as follows:
“Proof in law is the
establishment of facts by proper
legal means where a party makes
an averment capable of proof in
some positive way e.g. by
producing documents description
of things, reference to other
facts, instances or
circumstances; and where his
averment is denied, he does not
prove it by merely going into
the witness box and repeating
the averment on oath and having
it repeated on oath by his
witness. He proves it by
producing other evidence of
facts and circumstances, from
which the court can be satisfied
that what he avers is true”.
I shall proceed to examine the
evidence adduced by the parties
in relation with the issues and
the law, in order to determine
whether or not the parties have
discharged their burden of proof
to the standard as prescribed by
the Evidence Act and case law.
16. From the pleadings of
the parties in this suit, the
onus of proof is on both parties
to prove their claim and
counterclaim respectively. The
nature of the onus is explained
in the case of BANK OF WEST
AFRICA LTD. VRS. ACKUN (1963) 1
GLR 176 where the Supreme Court
stated that, the onus of proof
in civil cases depends upon the
pleadings and that a party who
in his pleadings raises an issue
essential to the success of his
case assumes the burden of
proof. The above case has
clearly buttressed the position
of the law in ZABRAMA VRS.
SEGBEDZI already cited in this
judgment.
17. Let me now consider the
specific issues raised in this
suit and address same in the
context of the evidence and the
applicable law. The first issue
settled by the Plaintiff is
whether or not all that piece of
land described in the
Plaintiff’s statement of claim
is the Plaintiff’s family land
or stool land.
In paragraphs 3 and 4 of the
Plaintiff’s Amended Statement of
Claim filed on 20/5/08 the
Plaintiff avers that Ayikai
Doblo is comprised of the three
principal families of Okaine
Mensah, Doblo and Nii Kweifio
and that these three families
jointly own all Ayikai Doblo
lands except the parcel of land
described in schedule 1
presumably the area covered by
the deed of disclaimer.
In his amended statement of
defence and counterclaim filed
on 9/9/08 the Defendant has
admitted Plaintiff’s averments
except that the Defendant denies
the claim by the Plaintiff that
he is the eldest son of the late
Nii Ayikai Okaine (Adjeitse) and
denies also the Plaintiff’s
claim of headship of the Okaine
Mensah We. He however admits
substantially Plaintiff’s
averment in paragraph 8 of his
Amended Statement of Defence
where he states as follows:
“8. Save that Ayikai Doblo
lands are jointly owned by the
three royal families who jointly
grant the land in collaboration
with Ayikai Doblo Mantse,
paragraph 4 of the Plaintiff’s
Statement of Claim is vehemently
denied”.
18. The law is trite that
where an allegation of fact in a
pleading is admitted by the
opposing party, the party
alleging need not adduce
evidence on the allegation. See
the case of FORI VRS. AYIREBI
(1966) GLR 627.
Notwithstanding the common
positions by the parties on the
joint ownership of Ayikai Doblo
lands by the three families, I
will not do justice to the issue
set down by the Plaintiff
without commenting on the nature
and character of stool lands as
determined by case law within
the context of the issue as set
down in order to adequately
address same.
19. In the case of AMEODA
VRS. PORDIER AND AMEODA VRS.
FORZI & OTHERS CONSOLIDATED 1967
GLR 179 cited by Plaintiff’s
counsel in her closing address
the Court of Appeal then the
highest court of the land held
per Amissah J. A. in determining
the nature of stool land whether
used in the restrictive or wider
sense at page 480 as follows:
“It is suggested that if a stool
occupant has the responsibility
of conducting extra –
testitorial affairs in relation
to land then the land is stool
land. This may be so, if the
expression stool land is used in
a loose sense denoting land
under the jurisdiction of a
particular stool. But that is
totally different from saying
that the lands in question are
stool lands, in the other and
more limited sense, namely, that
the stool has proprietary rights
in those lands……...
Jurisdictional interest of a
stool in land may also carry
with it a proprietary interest
in the same land. ………..There is
a distinction between states or
traditional areas where the land
is owned by the stool and those
where it is not…… …………I
therefore think that any
definition of stool land adopted
and applied in a suit involving
land ownership which denies the
existence of those distinctions,
as indeed the definition
formulated by the learned judge
does, and which practically
makes every piece of land over
which a stool exercises
jurisdiction, land owned by the
stool, must be wrong”.
20. Arising from the
pleadings in this suit, and
applying the statement of the
learned judge in the case just
cited, I am unable to arrive at
any other finding than that
Ayikai Doblo lands are not stool
lands but family lands belonging
to the three principal families
of Okaine Mensah We, Doblo We
and Nii Kweifio We all of whom
have appointed and installed the
Defendant as a chief albeit
without any proprietory
authority over their lands.
On the basis of this finding, I
hold that Ayikai Doblo lands can
only be lawfully alienated by
the joint grant of the heads of
the three families or their
lawfully appointed
representatives. To my mind, the
Defendant’s role in any proper
and lawful alienation of Ayikai
Doblo lands may be a concurring
role being the occupant of the
stool which is recognized by all
the three principal families.
Such concurring role cannot be
as of right but may be with the
consent of all the three
families through their heads and
principal members.
Following from the
finding above, I donot intend to
belabour myself to determine
issue (b) in the Plaintiff’s
application for directions
because the answer to that issue
is obvious, and it is that the
Defendant unless empowered by
the heads of the three families
cannot in his own right dispose
of any portion of Ayikai Doblo
lands because he does not own
any land of his own and it
follows that he cannot give what
he does not have.
21. I shall now deal with
the issues set out in the notice
of additional directions filed
by the Defendant on 28/5/08.
In paragraph (i) The
Defendant set out this issue;
“Whether or not 180 acres of
land was carved out from the
land the subject matter of the
deed of disclaimer for the
Defendant.
As I have observed earlier in
this judgment, the Defendant has
denied this averment in
paragraph 15 of his Amended
Statement of Defence. The burden
of prove therefore is on the
Plaintiff to adduce credible,
admissible evidence to prove
this assertion. The dictum of
Kpegah J. A. in ZABRAMA VRS.
SEGBEDZI earlier referred to
applies.
All the witnesses who gave
evidence for the Plaintiff have
asserted that a portion of the
land, subject matter of the
disclaimer was carved out for
the Defendant. The Defendant
having denied this assertion,
the Plaintiff had a duty to
adduce evidence in accordance
with the standard set down by
the court in the case of
MOJOLAGBE VRS. LARBI already
referred to in this judgment to
prove the ‘carve out’ as the
Plaintiff put it in paragraph 7
of his Amended Statement of
Claim.
22. As I earlier said,
neither the Plaintiff nor any of
his witnesses produced any
document positively identifying
the 180 acres of land and its
boundaries nor was there any
evidence by the Plaintiff and
his witnesses describing the 180
acres of land to enable the
court make a determination in
Plaintiff’s favour in terms of
the reliefs he seeks in this
court which includes an
injunctive relief to restrict
the Defendant to the use and
alienation of the 180 acres of
land purportedly carved out for
him.
Indeed, during cross –
examination of ‘PW1’ the
following evidence was elicited
between the Defendant’s counsel
and ‘PW1’.
“Q You said a portion of the
land the subject matter was also
carved out for the Defendant is
that correct?
A. Yes, a portion
was given to him and that place
is called Djida.
Q. So did the heads of the
three families also execute a
document to him that the land
exclusively carved out for him
exclusively belongs to him?
A. No there wasn’t any
document signed but customarily
we poured libation on the land
for him, a sheep was slaughtered
and prayers were said.
Q. I am putting it to you
that no land was carved out of
the land the subject matter of
disclaimer to the Defendant.
A. He was given a
portion at that time I was
linguist to him.
Q. Your statement that you
went to the land and performed
custom to carve out the land to
him is not true.
A. It is true, I was there
and we poured libation to carve
out the land and I was present.
Q. Was J. O.
Lamptey there?
A. They were all
there, at that time they were
Moslems.
Q. Was Ray Attoh
there?
A. They were all
there”.
In their evidence before this
court, both J. O. Lamptey and
Ray Attoh had denied any
knowledge of the land Plaintiff
claims had been carved out for
the Defendant and his family.
23. The questions that
directly flow from the facts and
evidence of the assertion that
180 acres of land was carved out
by Plaintiff’s father in favour
of the Defendant are:
(i). Is there a site plan
identifying the area and
boundaries of the 180 acres of
land said to have been given to
the Defendant to enable the
Plaintiff enforce any reliefs he
may obtain with respect to the
area whether declaratory or
injunctive?
(ii). In what capacity did
the Plaintiff’s father grant the
defendant 180 acres out of
subject matter of the deed of
disclaimer Exhibit ‘2’ when the
parcel of land covered by
Exhibit ‘2’ was vested in the
Plaintiff’s father as stool
father and the Defendant as
chief both of Ayikai Doblo as
rightful owners which is why the
Defendant insists that he and
the Plaintiff’s father acted for
and on behalf of the three
composite families for the
entire Ayikai Doblo people in
general and for the three
principal families in
particular.
(iii). There is no evidence
before this court how the land
fought for and recovered through
the efforts of representatives
of all the three families
suddenly became the personal
property of the Plaintiff’s
father Nii Ayikai Okaine. The
only suggestion on how the
Plaintiff sought to establish
his late father’s claim to the
subject matter of the
disclaimer, can be found in
paragraph 7 of the Plaintiff’s
amended statement of claim where
the Plaintiff avers as follows:
“The surveyor who delineated the
portion of the land covered by
the deed of disclaimer upon
agreement by both the
Plaintiff’s father and the
Defendant, carved out about 180
acres out of the said 780.53
acres for the Defendant as being
his and his family’s share of
the said piece of land …….”
24. It is clear to me that
while no evidence was adduced by
the Plaintiff and his witnesses
how the Plaintiff’s father came
to personally own the subject
matter of the deed of disclaimer
as Plaintiff asserts, the only
conclusion I can safely arrive
at from the averment in
paragraph 7 and the evidence
adduced at the trial is that,
the Plaintiff’s father purported
to assume ownership of the
subject matter of the disclaimer
following his leading role in
its recovery and by virtue of “an
agreement between him and the
Defendant”, he decided to
carve out a portion for the
Defendant and his family which
assertion the Defendant who is
supposed to be the beneficiary
has denied.
25. From the evidence, I
find that the Plaintiff failed
to establish on the
preponderance of probabilities
that 180 acres of land was
carved out by the Plaintiff’s
father to the Defendant.
I shall now proceed to deal with
issue (ii) on the Defendant’s
additional issues for trial i.e.
“Whether or not the whole
land which is the subject matter
of the deed of disclaimer is the
legitimate property of the three
royal families of Ayikai Doblo
namely Doblo We, Okaine Mensah
and Kweifio We”.
26. There is no evidence on
the record to explain how the
Plaintiff’s father came to
exclusively own the subject
matter of the disclaimer as the
Plaintiff asserts. The Plaintiff
and his witnesses have also
failed to substantiate
Plaintiff’s claim against the
background of the averment in
paragraph 3 of the Plaintiff’s
own Amended Statement of Claim
which states that ownership of
Ayikai Doblo lands which was
described in detail belong
jointly to the three principal
families.
The Plaintiff has failed to
prove exclusivity so that the
totality of the evidence adduced
lends itself to the obvious
conclusion that the subject
matter of the deed of disclaimer
belongs to the three composite
families.
27. In this suit, the
Plaintiff failed to adduce
credible evidence of personal
acquisition of the subject
matter of the disclaimer
exclusively by the Plaintiff’s
father whose purported exclusive
claim arose from an agreement
purportedly entered into by the
Plaintiff’s father and the
Defendant subsequent to which
the surveyor acted upon their
instructions as averred to in
paragraph 7 of the Amended
Statement of Claim.
On the other hand, the Defendant
not only denied the assertion by
the Plaintiff but he and his
witnesses were consistent in
their accounts regarding the
various meetings and events
which took place resulting in
the execution of the deed of
disclaimer.
I shall reproduce the evidence
adduced on the subject by ‘DW2’
Joseph Odartey Lamptey – during
- examination in chief.
“Q. Did anything transpire
between Ayikai Doblo family and
Nii Odartey III you said you
know?
A. Yes My Lord, I
know what transpired.
Q. Now tell the
court what transpired.
A. My Lord what transpired
was that Nii Odartei III
executed a document and took a
portion of Nii Ayikai Doblo II
and his subjects land. My Lord
that includes the other families
which constitute Ayikai Doblo.
Q. Now when he made the
document covering the land, what
did the Doblo family do when
they got to know?
A. My Lord what we did was
that the 3 families of Doblo led
by Nii Doblo Ayikai II stood
against Nii Odartei for what he
did.
Q. Now when you stood
against him what happened?
A. My Lord the three
families together with the heads
of families and the chief of
Doblo sent a delegation to Nii
Odartei. And he suggested a date
for us to meet”.
My Lord we met at one of our
villages called Obeyeyie. And we
had a meeting at the Menonite
church with Nii Odartey and his
elders. Our delegation included
Nii Boye Maclean acting head of
Akumaje, Ray Attoh, Iddrisu
Amartey, Richard Lankai Armah,
Ayitey Dauda Lanquaye and
several others.
“Q. Now who were the 3 heads
of family who were there
together with the Defendant and
the people you have just
mentioned?
A. My Lord, myself, Josiah
Odartey alias Mustapha, My Lord,
I represented Doblo house or
family, Ayikai Okaine
(Plaintiff’s father) represented
Okaine Mensah house or family,
Ahmed Darko Amponsah represented
Nii Kweifio house or family and
then Nii Doblo Ayikai II who
comes from Nii Kweifio family
and several others.
Q. Now when you
met what happened?
A. My Lord after we
deliberated on this matter, we
concluded that we have to go to
the land and see where has been
encroached.
Q. Did you go?
A. Yes My Lord, I went with
them because I know the
boundaries of that land as well
as other issues pertaining to
the land.
Q. Now when you
went there what happened?
A. My Lord after the
inspection, we went back to the
Menonite church. Nii Odartei
agreed that he had trespassed
onto our land and for that
matter he was going to prepare a
document to give us our portion
of the land.
Q. So did he
prepare that document?
A. My Lord Nii Odartei
prepared this document and then
invited us to meet at Odorkor
Nii Boye’s house.
Q. And then what happened
when you went to meet in Nii
Boye’s house at Odorkor?
A. My Lord, we delegated
Nii Doblo Ayikai II and our
brother Nii Ayikai Okaine
(Plaintiff’s father). My Lord
all the families in Doblo met
and delegated the above
mentioned people to join Nii
Boye in his house at Odorkor to
meet Nii Odartei to resolve this
matter.
Q. So when they met there
what happened? Did Nii Odartei
bring the document which will
release the land to you?
A. Yes My Lord, Nii Odartei
II stood by his word and gave
the document to the delegation
through our representatives we
sent to meet him”.
I have decided to reproduce this
evidence in detail because of
its relevance in the
determination of issue (ii) in
the Defendant’s additional
issues for trial.
28. Throughout the cross –
examination of ‘DW2’ by
Plaintiff’s counsel, nowhere did
the witness prevaricate nor give
answers inconsistent with his
testimony. Short of putting it
to this witness that his
evidence during examination in
chief is not true, counsel for
the Plaintiff could not during
cross – examination get the
witness to contradict any
portion of his evidence nor was
it established during cross –
examination that the witness’s
account of events which was
corroborated by other witnesses
for the Defendant was not
credible. Significantly, the
evidence of ‘DW2’ reproduced
above was corroborated by the
Defendant as well as ‘DW1’ and
‘DW3’ in every material
particular without any
inconsistencies elicited during
their cross – examination by
Plaintiff’s Counsel.
29. On the other hand, when
the Plaintiff called ‘PW1’ by
name Sowah Ayikai, who described
himself as a son and descendant
of Nii Ayikai Okaine
(Plaintiff’s father) the
following evidence was elicited
during his cross – examination?
“Q. It is true, isn’t it that
Ayikai Doblo lands are jointly
owned by the three royal
families?
A. Not all the lands, there
is a portion of it exclusively
owned by my father.
Q. I am putting it to you
that your father doesn’t own any
portion of land exclusively for
himself.
A. That is true”.
In answering further questions
under cross – examination by
Defendant’s counsel the
following evidence was elicited
from ‘PW1’.
“Q. I am putting it to you
that the three heads of the
three royal families never
executed any document giving a
portion of the land the subject
matter of disclaimer to your
father as his own personal
property?
A. They did”.
30. Inspite of this positive
answer of the execution of a
document verifying the grant of
the subject matter of the
disclaimer to Plaintiff’s father
no such document was produced in
evidence to support the evidence
of ‘PW1’ and no evidence was
adduced to explain why the
document purportedly made to
vest the subject matter of the
deed of disclaimer in
Plaintiff’s father was not
tendered. Granted that the
witness’s affirmative answer is
a reference to Exhibit ‘2’ the
deed of disclaimer where
Plaintiff’s father’s name
appeared together with the
Defendant, nowhere in Exhibit
‘2’ is there evidence that the
land released per the deed of
disclaimer was or intended to be
the personal property of the
Plaintiff’s father and the
Defendant. The only irresistible
conclusion I can arrive at is
that, there is no evidence to
support the claim that
Plaintiff’s father owned no land
of his own personally and did
not own the area covered by the
deed of disclaimer.
31. With respect to the
evidence of Nana Odei ‘PW2’ the
following evidence was elicited
during his cross – examination
by the Defendant’s witness.
“Q. At what point in time did
Nii Odartei of Nsakina make a
disclaimer releasing the land to
the entire Doblo family. Are you
aware of that?
A. Yes My Lord.
Q. Now it is true isn’t it
that it was the Plaintiff’s
father and the Defendant i.e.
Nii Doblo Ayikai II who stood on
behalf of the entire Doblo
family when the land was
released, they signed the
document.
A. I don’t know that. I
only know of the oldman Adjei
Kojo’s father i.e. Plaintiff’s
father.
Q. So you don’t know that
it is the Plaintiff’s father and
the Defendant who signed the
document on behalf of the entire
Doblo family?
A. I donot know
that”.
The above answer by the witness
clearly stands in the face of
the documentary evidence
tendered by the Defendant
through ‘PW1’ i.e. Exhibit ‘2’
the deed of disclaimer which the
Plaintiff himself has
acknowledged. ‘PW2’ in my
opinion was evasive even when
there is credible documentary
evidence inconsistent with his
testimony.
32. He did not impress me as
a truthful witness and his
evidence in my opinion lacks
credibility. I am guided by the
principle of law laid down by
Ollenu J. A. (as he then was) in
the case of KYIAFI VRS. WONO
(1967) GLR 463 at 466 which
though criticized as authority
for other reasons in DUAH VRS.
YORKWAH 1993 – 94 1GLR 217
remains a relevant authority for
its statement on the question of
credibility of a witness as
follows:
“The question of impressiveness
or convincingness are products
of credibility and veracity. A
court becomes convinced,
impressed or unimpressed with
oral evidence according to the
opinion it forms of the veracity
of witnesses”.
33. Comparing the oral
evidence of the Plaintiff and
his witnesses which contain
contradictions in their accounts
as to the existence or non
existence of documentary
evidence of exclusive ownership
of any land by Plaintiff’s
father, and the evidence adduced
by the Defendant per Exhibit ‘2’
that the subject matter of the
deed of disclaimer was released
to Plaintiff’s father as stool
father and the Defendant as
chief both representing the
three principal families, the
evidence adduced by the
Defendant and his witnesses is
to my mind, more credible and on
the balance of probabilities a
preferable account of events and
the true ownership of the area
of land covered by the deed of
disclaimer Exhibit ‘2’.
34. Whereas there should be
no derogation of evidence merely
because it is oral, I know of no
legal authority which will
support a finding of fact based
on the contradicting oral
evidence of witnesses on one
part, to the unchallenged
documentary evidence of his
opponents on the same
transaction.
35. My position finds
support in the decision of the
Court of Appeal then the apex
court in the case of HAYFRON
VRS. EGYIR (1984 – 86) 1GLR 682
where Apaloo (CJ) delivering the
judgment of the court at page
693 of the report castigated the
trial judge for preferring the
doubtful and conflicting
evidence of two witnesses to
documentary evidence on the same
transaction. Said the late Chief
Justice of the trial judge “The
learned judge’s conclusion, is a
set back in the development of
an enlightened and progressive
conveyancing practice in this
country. I venture to hope that
none of my learned brothers will
feel attracted by the negative
attitude to conveyancing adopted
by the judge in this case”.
I will certainly not.
On this position of the law both
counsel in their addresses have
referred to me the case of DUAH
VRS. YORKWAH (1993 – 94) 1GLR
217 to support their
contentions. I am inclined to
agree with the Defendant’s
counsel that the decision in
this case is more supportive of
the Defendant’s case than of the
Plaintiff’s. As held in that
case similar with the views
expressed by Lord Chief Justice
Apaloo in HAYFRON VRS. EGYIR the
Court of Appeal said:
“Whenever there was in existence
a written document and oral
evidence over a transaction, the
practice in the court was to
lean favourably towards the
documentary evidence especially
if it was authentic and the oral
evidence conflicting”.
In the case of ORIOLA VRS.
ORIOLA (1956) SCNLR 18 the
Nigerian Supreme Court in
deciding on the onus of a family
member claiming exclusive title
in family property stated that;
before a court can decide that
family property has become the
absolute property of one member
of the family, there must be
adduced before it, evidence in
the most clear and cogent
manner. In other words, the
strong presumption in favour of
family property, which exists
under native law and custom can
only be rebutted by the most
convincing evidence. I see no
such convincing evidence adduced
by the Plaintiff in this case to
establish the claim of exclusive
ownership of the subject matter
of the deed of disclaimer by his
father Nii Ayikai Okaine. In
this respect the case of NTI
VRS. ANIMA (1984 – 86) 2 GLR 134
cited by the Plaintiff’s counsel
in her closing address in
support of the Plaintiff’s claim
is not supportive of the
Plaintiff’s case.
37. On the strength of the
evidence before me and the
relevant case law therefore, I
find that the subject matter of
the Deed of Disclaimer as
described in the site plan
accompanying exhibit ‘2’ has
never been the exclusive or
personal property of Plaintiff’s
father and same was at no time
vested in him personally. It has
infact been and still remains
the joint property of the three
composite families namely Okaine
Mensah We, Doblo Shia and Nii
Kwefio We. Having found that the
Plaintiff’s father had no
exclusive right to the subject
matter of the deed of disclaimer
it follows that granted there
was evidence that he carved out
180 acres of the subject matter
to the Defendant, same would
have been void abinitio. One
cannot give what he does not
have. In my view, the above
finding has effectively
determined reliefs (iii) and
(iv) of the Defendant’s
additional issues filed on the
28/5/08 and I donot intend to
belabour myself on those issues
any further.
38. Let me turn my attention
to some peripheral issues
arising from the pleadings in
this suit. One of such issues is
the determination whether the
Plaintiff is the eldest son of
the late Nii Ayikai Okaine and a
stool father as averred in
paragraph 1 of the Amended
Statement of Claim which two
claims have been denied by the
Defendant. I have decided to do
this relative to the issue of
capacity which though not set
down by the parties appears to
have arisen from the pleadings
in order to put to rest the
question whether or not
Plaintiff has capacity to
institute this action at all.
39. I am conscious of the
fact that there is no direct
averment challenging the
Plaintiff’s capacity to commence
this action. Were there a
challenge to Plaintiff’s
capacity, I would have for
obvious reasons determined that
issue first because capacity
goes to the root of every action
and where it is raised, the
Plaintiff or Defendant whose
capacity is challenged has a
duty to produce credible and
admissible evidence to establish
his locus either by statute or
from his pleadings. See the case
of SARKODIE 1 VRS. BOATENG II
1982 – 83 1 GLR 715.
40. In paragraph 1 of his
Statement of Claim, the
Plaintiff describes himself as
the stool father of Ayikai
Doblo. The Defendant has denied
this averment. I donot consider
the determination of this issue
as consequential to the reliefs
being sought by both Plaintiff
and Defendant in this suit. If
the Defendant is aggrieved about
the designation the Plaintiff
has ascribed to himself, the
Defendant can take steps to
contest Plaintiff’s claim
elsewhere. Though in the case of
AMOASI III VRS. TWINTOH 1987
1GLR 554 – 557 the Supreme Court
settled the issue whether or not
the head of a stool family was a
cause or matter affecting
chieftaincy and held that it was
not, I shall refrain from making
a finding on the Plaintiff’s
claim of a stool father in this
suit because as I have earlier
stated, such finding will not
determine any of the key issues
between the parties. In support
of my position I rely on the
Court of Appeal decision in the
case of DOMFEH VRS. ADU 1984 –
86 1GLR 653 where it was held as
follows:
“The primary facts which a trial
judge might find as having been
proved to his satisfaction were
those necessary to establish the
claim of a party or in some
cases the defence which had been
alleged on one side and
controverted on the other. The
trial judge was not required to
make findings of fact in respect
of irrelevant matters on which
the parties have led evidence
when such findings would not
assist in the determination of
the issues involved in the
case”.
41. With respect to the
Plaintiff’s claim of being the
eldest son of Nii Ayikai Okaine
however, the Plaintiff has
adduced evidence to support this
assertion. His evidence which is
corroborated by the evidence of
‘PW2’ is that upon the death of
Nii Ayikai Okaine the Plaintiff
was appointed head of family
because he was found to be more
responsible than his other
brothers who are biologically
senior to him. Under cross –
examination by Defendant’s
counsel, ‘PW2’ in supporting
Plaintiff’s assertion denied
that one Ray Tetteh Attoh is the
head of Plaintiff’s family and
not the Plaintiff.
However, when ‘DW2’ Ray Tetteh
Attoh gave evidence for the
Defendant he also claimed that
it is he, and not the Plaintiff
who is the present head of the
Okaine Mensah family.
42. I am unable to
appreciate how headship of the
Okaine Mensah family would be
directly relevant in the
determination of the issues set
down for trial in this suit. The
Plaintiff in his evidence
asserts that he is the eldest
son of Nii Ayikai Okaine by
reason of the fact that his
elder brother was disowned by
their late father. I shall
refrain from making a finding on
Plaintiff’s claim of being the
eldest son of Nii Ayikai Okaine
because whether or not I find
the claim credible and proved,
the Plaintiff nevertheless has
the capacity to commence this
action to protect his father’s
estate without necessarily doing
so as the eldest son or head of
family. The above position finds
support in the case of In Re –
Ashalley Botwe Lands ADJETEY
AGBOSU & ORS. VRS. KOTEY & ORS.
2003 – 2004 SCGLR where it was
stated in holding (i) as
follows:
“The general rule recognized
by KWAN VRS. NYIENI namely that
the head of family was the
proper person to sue and be sued
in respect of family property
was not inflexible. There are
situations or special
circumstances or exceptions in
which ordinary members of the
family could in their own right
sue to protect the family
property without having to prove
that there was a head of family
who was refusing to take action
to preserve the family property.
The special or exceptional
circumstances include situations
where (a) a member of the family
had been authorized by members
of the family to sue or (b) upon
proof of necessity to sue”.
See also the case of DOTWAAH &
ANOR. VRS. AFRIYIE (1965) GLR
257.
43. Though I have found to
the contrary, the Plaintiff’s
assertion in the instant case,
is that the subject matter of
the deed of disclaimer was the
exclusive property of his father
in pursuance of which he
procured Exhibit ‘D’ through
which they purported to vest the
subject matter of Exhibit ‘2’
the deed of disclaimer in
himself and five others
beneficiaries having obtained
letters of administration
Exhibit ‘A’ to administer the
personal assets of their late
father. As found earlier in this
judgment, the subject matter of
the deed of disclaimer not being
the personal property of the
late Nii Ayikai Okaine, the deed
of vesting assent vesting the
property in the Plaintiff and
five others will not stand and
will be set aside.
44. I shall now consider
Defendant’s counterclaim
contained in the Amended
Counterclaim filed on 23/9/08
pursuant to leave of this court.
The Defendant has not averred to
any new facts in his pleadings
but seeks reliefs by way of
counterclaim as follows:
“(a). A declaration that the
land the subject matter of the
Deed of Disclaimer is the
legitimate property of the
Ayikai Doblo family.
(b). A declaration that the
subject matter of the Deed of
Disclaimer is not the personal
property of Nii Ayikai Okaine
alias Adjeitse Ayikai the father
of the Plaintiff.
(c). Perpetual injunction
restraining the Plaintiff, his
servants, privies, workmen
assigns and all people claiming
through him from entering and
dealing in any manner with the
land the subject matter of the
disclaimer which is in dispute.
(d). Recovery of possession
for the benefit of Ayikai Doblo
family and the Defendant any
portion of the land unlawfully
encroached on or alienated by
the Plaintiff”.
45. In his defence to
Plaintiff’s action, the
Defendant has led evidence
through his witnesses to
substantiate the allegations he
makes against the Plaintiff. I
donot intend any further
evaluation of the evidence more
than I have already done in this
judgment.
Again, In RE – ASHALLEY BOTWE
LANDS ADJETEY AGBOSU & ORS. VRS.
KOTEY & ORS already referred to
Brobbey JSC summarises the
burden of the Defendant in a
civil suit in the following
words:
“The effect of Sections 11(1)
and 14 and similar sections in
the Evidence Decree 1975 may be
described as follows: A litigant
who is a Defendant in a civil
case does not need to prove
anything; the Plaintiff who took
the Defendant to court has to
prove what he claims he is
entitled to from the Defendant.
At the same time, if the court
has to make a determination of a
fact or of an issue, and that
determination depends on the
evaluation of facts and evidence
the Defendant must realize that
the determination cannot be made
on nothing. If the Defendant
desires the determination to be
made in his favour, then he has
a duty to help his own cause or
case by adducing before the
court such facts or evidence
that will induce the
determination to be made in his
favour……………”
46. I am satisfied from the
evidence adduced in this case on
the basis of which I arrived at
the findings I made earlier that
not only did the defendant
adduce credible and admissible
evidence in accordance with the
standard prescribed by law to
rebut Plaintiff’s claim, but on
the strength of his evidence and
those of his witnesses he will
be entitled to all the reliefs
endorsed on his counterclaim
except relief (d).
47. There is evidence before
me in this suit that the
Defendant has purported to
transfer interest in land as per
Exhibits ‘E’, ‘F’ admitted in
evidence through the Defendant
without any objection by
Defendant’s counsel. These
transactions were made without
the consent and concurrence of
all three heads of
representatives of heads of the
three houses of Okaine Mensah,
Doblo and Kweifio.
48. By his own pleadings and
in his own testimony the
Defendant has asserted that he
has no land exclusively of his
own to transfer to any person
and that no transfer of any
parcel of Ayikai Doblo lands can
be properly and lawfully done
without the consent and
concurrence of heads of all
three families or the true
representatives.
In the case of OKAI VRS. CLERK
Supreme Court 2008 13 MLRG 162
Brobbey JSC has stressed this
point. That where requisite
consent and concurrence is
required in disposing of family
property and same is not
obtained, any transaction made
cannot pass and is therefore
void abinitio.
49. Consequently, those
transfers contained in Exhibits
‘E’ and ‘F’ are void abinitio
and the Plaintiff’s claim for
declaration to that effect will
succeed. MECHANICAL LLOYD VRS.
NARTEY 1984 – 86 1GLR 412
applied.
Save and Except a declaration
only, I shall refuse to order
recovery of possession of those
lands from the affected parties
nor will I order their
conveyances to be cancelled by
an order directed at them. Doing
so will result in injustice to
them. They are not parties to
this suit. The Plaintiff may
take appropriate legal steps to
recover possession or to have
the interest purportedly
transferred by the Defendant
properly done with the consent
and concurrence of the heads of
the three families i.e. Okaine
Mensah We, Doblo We and Nii
Kweifio We.
In refusing to grant relief (e)
in favour of the Defendant, I am
guided by the position taken by
Wood JSC (as she then was) in
ADJETEY AGBOSU VRS. KOTEY
already cited at page 427 of the
report where she said as
follows:
“I see an order directed at the
beneficiaries who were never
parties to this action; persons
who have acquired lands from the
Defendants, but who were however
not heard in these proceedings
contrary to the fundamental and
plain rule of natural justice
the audi alteram partem rule. To
order an annulment or
cancellation of their documents,
without any notice to them and
without having given them a
hearing, is in my view,
erroneous as the intention
clearly is to dispossess them of
their properties”.
On the same premise, I refuse to
grant reliefs (e) and (k)
endorsed on Plaintiff’s amended
statement of claim filed on
20/5/08.
For all the reasons I have set
out in this judgment and on the
basis of my findings I order as
follows:
Plaintiff’s claim
succeeds only in part, and
accordingly, I hereby grant;
(1). A declaration that the
whole of Ayikai Doblo family
lands described in paragraph 3
of the Amended Statement of
Claim and more particularly
delineated in the site plan
drawn by W. E. K. ADDO licensed
surveyor number 139 and
comprising approximately 4419.20
acres in area is the joint
property of all three families
of Ayikai Doblo, namely Okaine
Mensah We, Doblo Shia and Nii
Kweifio We.
(2). A declaration that any
purported alienation of Ayikai
Doblo lands or any portion
thereof by the Defendant alone
without the heads of all the
other families is illegal and
does not confer any title on any
person the same being null and
void and of no effect.
I
shall also grant relief (h) in
the following terms.
(3). An order perpetually
restraining the Defendant
whether by himself or his
agents, purported assigns
workmen or others howsoever from
alienating Ayikai Doblo lands or
any portion of it without the
consent and concurrence of the
heads of the three families
namely Okaine Mensah We, Doblo
We and Nii Kweifio We.
Save the three reliefs granted
in favour of the Plaintiff as
stated above all other reliefs
are hereby refused.
The Defendant succeeds on his
counterclaim and I grant the
reliefs endorsed therein as
follows:
“(a). A declaration that the
land the subject matter of the
Deed of Disclaimer is the
legitimate property of the
Ayikai Doblo family.
(b). A declaration that the
land the subject matter of the
Deed of Disclaimer is not the
personal property of Nii Ayikai
Okaine alias Adjeitse Ayikai the
father of the Plaintiff.
(c). Perpetual injunction
restraining the Plaintiff, his
servants, privies, workmen
assigns and all persons claiming
through him from entering and
dealing in any manner with the
land the subject matter of the
disclaimer which is in dispute”.
As I have earlier stated in this
judgment, I refuse to grant
relief (d) of the Defendant’s
counterclaim as same will affect
third parties who were not
parties to this suit.
As a consequential order, the
vesting assent dated 2/5/2005 in
the names of Nii Adjei Kojo
Ayikai and Sowah Onukpa Ayikai
procured for the purposes of
unlawfully taking over Ayikai
Doblo lands jointly owned by the
three composite families is
hereby set aside and same shall
be cancelled from the register
of lands forthwith. All
transactions entered into by the
beneficiaries pursuant to the
deed of vesting assent are
hereby declared null and void.
The parties shall bear
their own costs of this action.
I wish to place on record my
gratitude to both counsel in
this suit for their co –
operation with me in proceeding
with the trial during the period
of the legal vacation.
(SGD.)
I. O. TANKO AMADU
JUSTICE OF THE HIGH COURT
1. Kofi Somuah
holding brief for Nancy
Amarteifio (Mrs.) - (For
Plaintiff)
2. Mr. Prosper
Nyahe (For Defendant) |
