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IN THE SUPERIOR COURT OF JUDICATURE

IN THE HIGH COURT OF JUSTICE HELD IN ACCRA ON THURSDAY

31ST  MARCH, 2011 BEFORE HIS LORDSHIP MR. JUSTICE S. H. OCRAN

 

SUIT NO. BL 513/2004

_______________________________________________________

ALEX OPPONG

 

           VRS.

 

                                            ERASMUS ASAMOAH & 4 ORS.

________________________________________________________

 

 

JUDGMENT

BY COURT:

On 22nd June, 2004 the Plaintiff filed this writ, accompanied by a statement of claim against the Defendants herein for the underlisted reliefs, which have been reproduced as appeared in the Writ.

a)     A declaration of title to all that piece of land situate, lying and being at New Ashongman in Accra and covering an approximate area of 3.17 Acres.

b)    Recovery of possession of the said land.

c)     Perpetual Injunction to restrain the Defendant, his agents, servants and assigns from interfering with the possession and quiet enjoyment of the Plailntiff.

d)    General damage for trespass.

The Plaintiff traced his root of title from one Nii Iddirisu Ayaa Tettey whom he claimed gave him a sublease.  Nii Iddirisu Ayaa Tettey claimed to have come by this land as one of the administrators of the estate of Ayaa Kwabla, who had the land as a gift from Peter Mensah Anteh (deceased) then head of Odai Ntow Family.  The other adminstrators of the estate of Ayaa Kwabla are Kai Ayaa Kwabla and Korley Ayaa kwabla.

The Defendants denied the Plaintiff’s claim and Counter-Claimed as follows:

a)     Declaration of title to their various plots of lands described in their schedules.

b)    Perpetual Injunction restraining the Plaintiff, their servants, licensees assigns etc from having any dealings with or on the said property.

c)     General damages for trespass.

d)    Specific damages for destroying the buildings of the defendants at various stages of completion as follows:

1st Defendant - ¢20,822,000.00

2nd Defendant - ¢ 4,161,000.00

3rd Defendant - ¢1,500.000.00

e)     Costs.

 

The Defendants traced their title from Nii Ngleshie Addy V as the head and lawful representative of Aboasa Family, Kwabenya, with the consent and concurrence of the principal members of the said family.  The defendants pleaded further that the interest of their lessor was registered at the Land Title Registry on 6th day of August ,1993 as Number 06. X. 2813/1 with Land Certificate Number GA 6187 Vol. 06 Folio 40.

The issues that were set down for resolution were as follows:

1.     Wether or not the Plaintiff’s land at New Ashongman is the same as the Defendants land at North Kwabenya.

2.     Whether or not the proprietary rights of Plaintiff’s grantors and the subsequent registration of Plaintiff’s land has been challenged by the Defendants’ grantors at the Court at Lands Commission.

3.     Whether or not the grantors of the land to the Defendants are the allodial owners of the land in dispute.

4.     Whether or not the grantors of the land to the Defendants registered their title with the Land Title Registry in 1993 with Certificate No. GA6187, Vol. 06, Folio 40.

5.     Whether or not the Defendants are entitled to their Counter Claim.

6.     Further and any other releif(s) on the face of the pleadings.

Before hearing commenced, an order was made to the Director of Survey, to demacate the land in dispute and to determine the actual site or location of either party’s land, using the actual site Plans inserted in the original documents of the parties, on 17th June, 2005.  The Plan was prepared and tendered in evidence as Exhibit CW1A.   On Exhibit CW1A it was revelaed that only a small portion of the plots of first, second and third Defendants falls within the land claimed by the Plaintiff.

 At that stage, the Plaintiff should have discontinued the action against the 4th and 5th Defendants, but the Plaintiff did not. 

The Plaintiff gave evidence himself and called P.W.1.   In his evidence, the Plaintiff said he bought a parcel of land at Ashongman from one Tettey Ayaa Kwablah Iddirisu.  Before he bought the land, the Plaintiff said he conducted an administrative search, which search report revealed that the land belonged to the said Tetteh Ayaa Kwablah Iddirisu.  After the search, he was given an indenture which was tendered as Exhibit ‘A’.  The Plaintiff also gave evidence that when he was invited to Atomic Police Station he conducted a search and tendered the report as exhibit ‘C’.  He however admitted that he does not know the extent of the land he bought except that it was 12 plots.

P. W.1, Mr. Charles Armah Ceyloy gave evidence that they sold land to the Plaintiff, and since he had reported to them that somone is challenging him, he has come to give evidence since Mr. Iddirisu Ayaa Tettey is sick. He said he has a power of Attorney to represent Iddirisu Ayaa Tettey.  P.W.1 gave further evidence that iddirisu Ayaa Tettey’s father was the Odai Notw family head.  His name was Ayaa Kwablah.  It was the family that granted Ayaa Kwablah the land, which he also granted it to two of his children being Korley and Kai.  P.W.1 tendered Exhibit ‘E’ as the document given to Ayaa Kwablah, and Exhibit ‘F’ as the Letters of Adminstration to administer the estate of Ayaa Kwablah.

The Defendants also gave evidence for themselves and called D.W. 1 who gave evidence as the Attorney of Nii Ngleshie Addy V.  D.W.1 said the family has land at North Kwabenya which has been registered and issued with Land Title Certificate which was tendered as Exhibit 18.

To resolve the issue between the parties, the root of title of the Plaintiff on one side and the Defendants on the other side will have to be evaluated to see which one is capable of transfering title.  The Plaintiff’s original title is from Exhibit ‘E’ which is said to be a Deed of Gift from Peter Mensah Anteh who was described as head and lawful representative of the Odai Ntow Family of Ashongman.

It was stated in exhibit ‘E’ that the Donee acted with the consent and concurrence of the elders and councillors.

A close study of exhibit ‘E’ which was described as registered, shows that it was not registered.  It only came from Lands Commission but had not been executed and stamped and normally should have been executed before being presented to lands commission for processing.  I very much doubt the authenticity of Exhibit ‘E’ as it has not been properly executed.  There is no writing in the Certificate of Execution at the side of 1st Page i.e. This is the Instrument Marked ‘A’ referred to in the Oath of ………………… Sworn before me this……………….. day of………………..19……………  There is a signature for Mensah Anteh, but there is no other name or names as principal members or councillors.  There is another signature that reads like Antie, who was said to have witnessed Mensah Anteh’s signature.  There is also no oath of Proof.

The Oath of the Registrar of Lands, which was typed, was also not executed. Section 40(1) of the Conveyancing Act 1973 (NRCD 175) makes it mandatory that a conveyance be executed in the presence of and attested to by at least one witness.  Subsection 5 of Section 40 also states that a conveyance shall be delivered to the transferee as soon as practicable after execution of the conveyance by the transferor and the person whose consent or concurrence is required.

In Exhibit ‘E’ there is no indication that the Elders and Councillors did consent.  The witness did not also attest to it that he or she witnessed the execution of the document.  This being the status of Exhibit ‘E’, I find it difficult to understand how the Chairman of Lands Commission gave concurrence to it on 10th February, 1989 since it had to be executed before presenting it for concurrence.

Apart from not having been executed, Exhibit ‘E’ was also not stamped under the Stamp Act 1965 Act 311 now Stamp Duty Act, Act 689 and registered under the Land Registry Act 1962 (Act 122) or the Land Title Registration Act 1986 (P.N.D.C.L 152). 

In West African Enterprises Ltd vrs. Western Hardwood Enterprise Ltd (1995-96) 1 GLR 155, it was held in holding one that “since the lease Exhibit ‘B’ between the Apowa Stool and TBL was neither stamped nor registered, section 14 of the stamp Act 1965 (Act 311) would forbid its tender in evidence.  Again, in Nartey vrs. Mechanical Lloyd Assembly Plant (1987-88) 2 GLR 314, it was held that “By virtue of section 34 (2) of the Stamp Act 1965 (Act 311) the conveyance in favour of D was in the circumstance of the case chargeable with stamp duty.  Having regard to the consideration stated in exhibit 1, section 4 (2) enjoined that the stamp sholuld be denoted by impressed stamp on that purported conveyance; it was legally worthless and its admission by the Court of Appeal contravened section 14 (5) of Act 311, for in law it should not have been admitted in evidence or made available for any purpose whatsoever”.  Section 5 of the Land Registry Act 1962 (Act 122) requires an instrument presented for registration to be proved to have been duly executed by the grantor, by the Oath of the grantor, or one of the grantors, or the grantee or one of the grantees, or one of the subscribing witnesses.  Subsection 3 of Section 5 of the Land Registry Act 1962 (Act 122) also says the Oath shall state whether the grantor could read and write, and it shall be put into writing and signed by the deponent and filed with the Registrar. 

Section 24 of Act 122 also says an insturment, other than a Will or a Judge’s Certificate shall not have effect until it is registered. In the case of Amefinu vrs. Odametey and others (1977) 2 GLR 135, it was held in the 4th holding by the Court of Appeal that “By virtue of Section 24 of Act 122, an unregistered Instrument had no validity or legal effect and no issue of priority could consequently arise in respect of such an invalid instrument and a later registered instrument.  See also Ntem vrs. Ankwandah (1977) 2 GLR 452 and Nartey vrs. Mechanical Lloyd Assembly Plant (1987-88) 2 GLR 314 Holding 3(d).

I therefore hold that Exhibit ‘E’ did not pass any title to Mr. Ayaa Kwablah.

P.W.1 gave evidence that Ayaa Kwablah was the son of Peter Mensah Anteh, the Donee.  Exhibit ‘E’ however did not mention this fact. Being Ga’s, this Ayaa Kwabla was a member of the Odai Ntow Family and may be said to be a person entitled to free gift of land for his development.

 The question is, granted Exhibit ‘E’ was  even properly executed, would it be proper for one person to be given 1,468 Acres of the family’s land for only ¢200.00.  I am of the view that these situations are what is envisaged under Section 18 of the Conveyancing Act 1973 (N.R.C.D 175) for the Court to set aside leases that the Court considers to be unconscionable as it deprived the family of a large tract of it’s  land, for no reason.  Since I have held that Exhibit ‘E’ did not pass any title to Mr. Ayaa Kwabla, his administrators also had no right to deal with the land covered by Exhibit ‘E’ and therefore there is no need to set it aside.  If it had passed title, I would have set it aside on grounds of it being unconscionable.

Granted that Exhibit ‘E’ was even capable of transfering title to Mr. Ayaa Kwablah, it is all the adminstrators who should have executed Exhibit ‘A’ but not only one of them.  By Exhibit ‘F’ the adminstrators of the estate of Ayaa Kwablah were Iddirisu Ayaa Tettey, who was said to be the head of family, Madam kai Ayaa Kwablah and Madam Korley Ayaa Kwablah who were described as daughters.  One of the adminstrators cannot act alone without the consent and concurrence of the other adminsterators.  This is so because section 2(1) of the Administration of Estates Act 1961 (Act 63) says “The personal representatives are the representatives of the deceased person with regard to the movable and immovable property of the deceased.

Section 69 of Act 63 also says “A person to whom the administration of the estate of a deceased person is granted has, subject to the limitations contained in the grant, the same rights and liabilities and is accountable in like manner as if that person were the executor of the deceased.”  In re Bill (deceased) Abaka vrs. Tetterly Bill and ors (2007-08) SC GLR 66 it was held in the 2nd holding that “As a general rule, if there are several executors and administrators, they have a joint and entire interest in the estate of the testator or intestate which cannot be devided.

P.W.1 gave evidence that the administratrix gave power of Attorney to Iddirisu Ayaa Tettey to manage the land.  No power of Attorney from the adminstratrix was however tendered.

Exhibit ‘A’ has also not been registered. This being the state of affairs with regards to Exhibit ‘A’, it would not have passed any title to the Plaintiff even if Exhibit ‘E’ which is purported to have given the land to Ayaa Kwablah had been properly executed.

Counsel for the Plaintiff argued that there have been various Court decisions affirming the ownership of the land in Odai Ntow Family.  These decisions are said to include Bosumpin and Ors. Vrs. Martei and Ors. on 28th April, 1904 and Peter Mensah Anteh vrs. Simeon Aryeetey. 

These Judgements might have given the Odai Ntow family Judgements over some land, but the lands that these Judgements covered and the parties in those suits were not disclosed in the pleadings and in the evidence of the Plaintiff. It was only in Exhibit ‘E’ that these Judgements were mentioned; P.W.1 who tendered it said nothing about those Judgements.  The evidence of P.W.1 showed that he knew nothing about the grant in Exhibit ‘E’ as he said the land given to Ayaa Kwablah was 1,200 Acres but since he was then not present, he cannot say anything about it.  It was stated in Exhibit ‘E’ that the gifted land was 1,468 Acres. 

Since these cases were not made available to the Court and it had not been shown that the Defendant’s grantor was involved in them, and that they covered the land in dispute, I cannot rely on them as proof of the Odai Ntows Family’s ownership of the land as Counsel want this Court to believe.

In Amefinu vrs. Odametey (Supra) it was held that “the Defendant was not estopped by the 1968 Judgement since the evidence established conclusively that he was not aware of the litigation in 1968 between the Plaintiff and the Vendor.  The burden was upon the Plaintiff not merely to establish the fact of the litigation the nature of the litigation and the nature of the issues raised and determined by it as well as the absence of any participation in it by the Defendant, but further that the defendant was aware of those proceedings”.

 

On the part of the Defendants, they gave evidence that they acquired their plots of land from Nii Nigleshie Addy V the head of the Aboase Family because he showed them his Title Certificate.  D.W.1 tendered the certificate as Exhibit 18.  Since the Defendants grantor has a title certificate, which is dated 29th January, 1996, and the Instrument for which the certificate was issued was registered on 6th August, 1993, the Plaintiff’s unregistered document dated 25th April, 2002 could not have prevailed over the Defendant’s grantor’s Title Certificate which had been registered as at 6th August, 1993.

In the Case of Brown vrs. Quarshigah(2003-04) SC GLR 930 it was held in the 4th holding that “under Sections 45 (1)-(4) and Section 48 of the Land Title Registration Law 1986 (P.N.D.C L 152), the rights of a registered propertor of land acquired for valuable consideration or by an order of a court shall be indefeasible and shall be held by the proprietor together with all privileges and appurtenances attaching thereto free from all other interest and claims whatsoever. 

An indefeasible title meant a complete answer to all adverse claims on mere production of the certificate.” 

I therefore hold that the land covered by Exhibits 13 and 18 belongs to the Aboase Family of Kwabenya, but not the Odai Ntow Family of Ashongman.  The grantors of the land to the Defendants are therefore the allodial owners of the land in dispute.

As all the Defendants have received their leases from Nii Ngleshie Addy as confirmed by the evidence of D.W.1, I hold that the Defendants are entitled to declaration of title to their various plots. 

Since the Plaintiff admits that he sent bulldozer to the land to clear same, when he had seen structures on it, the Plaintiff must be condemned for this dastadly Act. If he was law abiding, he should not have taken the law into his own hands, but should have gone to court for assistance.  The 1st Defendant lost materials worth GH¢2,082.2 on 25th April, 2004.  The second Defendant had building materials worth GH¢416.10, and two pillars and a platform for mixing concreate destroyed.  The third Defendant had 2 trips of stones and a trip of sand damaged.  The foundantion for an outhouse for two rooms and a varanda and one room built almost to roofing level were destroyed.  The fourth and fifth Defendants did not loose anything. I therefore enter judgment for the Defendant on their counterclaim as follows:

a)     The Defendants are declared title to their various plots of land as described, and for which indentures have been given to them.

b)    The Plaintiff, his agents, servants, licensees, assigns etc are perpetually restrained from having any dealings with the said plots of land.

c)     (i) The 1st Defendant is awarded special damages of GH¢2,082.2.

(ii) The 2nd Defendant is awarded special damages of GH¢1,000.00 for the building materials of GH¢416.10 and the two pillars and a platform for mixing concreate that were destroyed.

(iii)  The 3rd Defendant is awarded special damages of GH¢300.00 for the properties destroyed, all with current lending rate of interest from 25th April, 2004.

d)    Considering the method adopted by the Plaintiff as a soldier to claim the land from the Defendants, 1st, 2nd and 3rd Defendants are awarded GH¢5,000.00 as general damages.

The Defendants are awarded cost of GH¢5,000.00.

 

 

 

 

                       

                   

 

 

              (SGD.) MR. JUSTICE S.H. OCRAN 

                          Justice of the High Court

 

 

 

Counsel:              Mr.  Ernest Osei Afful holds Wallace Bruce-Cathline’s brief for Plaintiff.

                                Mr. John Opoku for Defendant.

 

 

 

 

 
 

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