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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