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JUDGMENT
BY COURT:
The Plaintiff by his amended
writ issued on 15th
May 2009 claimed against the
Defendants the following
a) A declaration of
title to all that three (3)
plots of land adjoining
each other and situate at Mile
13, Frafraha in the Greater
Accra Region of
Ghana, and which plot of lands
are particularly
described in the schedule below.
b) An order for recovery
of possession
c) Damages for trespass
d) An order of perpetual
Injunction restraining the
Defendants either by themselves,
their assigns, workmen, agent or
any other person(s)
claiming through them from or in
any means dealing
with the said pieces or parcels
of land.
e) An Order compelling
the Land Title Registry, Land
Valuation Board,
Lands Commiission Secretariat
and the Survey Department to
CANCEL and EXPUNGE from their
RECORDS Land Title
Certificate No. GA 12050, Land
Valuation Board Registration No.
LVB 11712 B/94.
f) A further order a
declaration that all
transactions in respect of
Frafraha Lands on the
basisi of Land Title Certificate
No. GA 12050, are void, and
of no legal effect.
The parcels of land were
described as schedules (a) and
(b) in paragraph 13 of the
Statement of Claim as follows:
(a) All that piece or
parcel of land situate lying and
being at Frafraha, Accra and
bounded on the North East by
Vendor’s land measuring
100 feet more or
less on the South East by
Vendor’s land
measuring 200 feet more or
less on the South West by
proposed Road
measuring 100 feet more or less
on the North West by Vendor’s
land measuring 200 feet more or
less, covering an
approximate area of 0.46 of an
acre more or less and which said
piece or parcel of land is
more….”
(b) ALL that piece or
parcel of land lying being and
situate at FRAFRAHA ACCRA
and measuring approximately 0.23
of an Acre and bounded
on the North-East by the
Assignor’s land measuring
100 feet more or
less on the South-West by a road
measuring 100 feet
more or less and on the South
East by the Vendors
land measuring 100 feet more
or less.
By the Plaintiff’s Statement of
Claim he traced his root of
title from one GEORGE AMATTEY
who also traced his root of
title from the Agbawe Family of
LA, jointly headed by Nii Adjei
Komey Okpoti and Asafoatse
Tetteh Nukpa in 1979.
When William Adjei Tawiah and
Andrew Tawiah Akuetteh joined
the suit as Co-Defendants they
filed Defence and claimed that
all the plots in issue belonged
to their family, but not the
Plaintiffs Grantor. They
therefore counter claimed as
follows: This has been quoted
as it appeared in the
Counter-Claim without amendment.
“Declaration of title to all
that piece or parcel of land
situated lying and being at Mile
13 and 14, Accra Aburi Road in
the Greater Accra Region of the
Republic of Ghana and bounded on
the North West by family land
measuring 5635 feet more or less
on the North East by family land
measuring 2400 more or less on
the South East by Accra Aburi
Road measuring 1050 more or less
and covering an appropriate area
of 389.79 Acres or 360.36
Hectors.
6(a) Recovery of Possession
of the said land.
6(b) Damages for trespass
6(c) Perpetual Injunction
restraining Plaintiff by himself
or any person claiming through
him from further acts of
trespass to Co-
Defendants land.
6(d) An order for demolition
of any structure built by
Plaintiff on Co-
Defendants land.
With the joinder of the
Co-Defendants and their Counter
claim that the land occupied by
the Plaintiff and the Defendants
belong to them, it must be
determined which of the two
factions own the land in
dispute, that is whether the
Plaintiffs grantor being the
Agba-We or the Co-Defendants.
Since the Plaintiff traced his
root of title from Geroge
Amattey who also traced his root
of title from Agba-We family in
1979 he the Plaintiff pleaded
that by virtue of his grantor,
having been on the land since
1979; the Co-Defendants are
caught by the provisions of the
statute of limitation and are
therefore estopped from laying
any claim to the land, the
subject matter of this suit.
Both Plaintiff and Co-Defendants
pleaded that they have been
issued with Land Title
Certificates for the various
lands.
In proof of his claim, the
Plaintiff gave evidence himself
and called two other witnesses
including Nii Adjei kpobi Asaawa
II, the head of the Agba-we
Quarter as P.W.1 and one Eric
Woode a representative of Land
Registry Division of Lands
Commission as P.W.2.
During the trial, it became
necessary for the Regional
Director, Survey and Mapping
Division of Lands Commission
Accra to be appointed to prepare
a composite plan of the area.
The Surveyor was to show the 3
plots of the Plaintiff and the
position of the house that he
has built, and also the plots of
the 1st, 2nd,
and 3rd Defendants
and the positions of their
houses. The Surveyor was also to
indicate whether any of the
houses and the plots are within
proposed roads or not.
The Composite Plan was prepared
and tendered as Exhibit C.W.1A
and C.W.1B. It emerged from
Exhibit C.W.1B that the land
claimed by the parties have
encroached on the proposed road,
except the single plot of the
Plaintiff, shown by him which
did not cut across the road.
Even with this single plot, what
is contained in his site plan
attached to Exhibit B1 takes
part of the proposed road. The
site plan attached to Exhibit B
cut across the proposed road.
There is no evidence before me,
as to when the lay out of the
area was made. However Exhibit A
which is a permit granted to Mr.
George Amartey Kisseh by Tema
Municipal Assembly, on the 27th
of June, 2000 permitted the said
George Amartey Kisseh of
Frafraha to construct a fence
wall, on land indicated on
attached site plan for
Residential purposes. The fence
wall was to be set back 25 feet
form the centre of the road.
This Mr. George Amartey Kisseh
is the assignor of the plots
being claimed by the Plaintiff
to the Plaintiff. There is also
Exhibit A1 which is a permit
from Ga District Assembly,
Amasaman to A.T. Amarnor to
construct a two storey Dwelling
House with Boys Quarters, and a
fence wall on his plot of land
as per Drawings Attached. This
was approved on the 23rd
August 1995.
It is trite knowledge that one
cannot apply for a building
permit without a site plan and
drawings. Since the Plaintiff
and his assignors applications
for building permits were
approved and the Plaintiffs
evidence is that the approvals
were given on the two separate
site planes attached to the two
assignments, I accept the
Plaintiffs evidence that his
developments on the plots were
based on the two development
permits admitted as Exhibits A
and A1 which were all approved.
Since on Exhibits C.W.1B the
proposed road passes through the
Plaintiffs plots, the planning
Authorities will have to
compensate the
Plaintiff if it is established
that the land had been properly
given to the Plaintiff before
the layout was made.
The Defendants did not tender
any permit or give evidence that
they have been permitted by the
planning authorities to build on
their various plots.
The Defendants did not also
tender any documentary evidence
in proof of their title to the
land, except 2nd
Co-Defendant’s evidence that
they gave the Plots to the
Defendants.
Section 64(1) of the Local
Government Act of 1993(Act 462)
says “A person shall, before
constructing a building or any
other structure or undertaking a
work, obtain a permit from the
district planning authority,
which shall contain the
necessary conditions”.
In this case, the claim of the
plaintiff is that the Defendants
have trespassed unto his plots.
The issue of ownership will have
to be determined before the
issue of trespass is considered.
In proof of his title, the
Plaintiff tendered the Title
Deed of his grantor. Kisseih
George Amartey as Exhibit “C”.
This Exhibit is dated 8th
day of June 1979, and was
Registered under Land Registry
Act, 1962 (Act 122) as Number
3032/1979.
The Registration of this
instrument in 1979 gave legal
title in that property to
Kisseih George Amartey.
Registration under the Land
Rgisgistry Act, serves as notice
to the whole world.
Section 25 (1) of Act 122 says
“The Registration of any
instrument shall be deemed to
constitute actual notice of the
instrument and of the fact of
registration to all persons and
for all purposes, as from the
date of registration, unless
otherwise provided in any
enactment.
Exhibit “C” was executed by Nii
Adjei Komey Okpoti and Atofoatse
Tetteh Nukpa, joint Heads of
Agbawe Family of Frafraha Accra,
with the consent and concurrence
of the Principal Elders of the
Agbawe family of Frafraha.
In the case of Nartey Vrs.
Mechanical Lloyd Assembly Plant
Ltd. (1987-88) 2GLR 313 the
Supreme Court considered the
various judgments on the grants
of La Lands and held that even
though Frafraha Lands are La
stool lands, they belong to the
Agbawe family and are to be
granted by the Frafraha Mantse
and the Atofotse, and that the
grant by the La Mantse without
the consent and concurrence of
the Frafraha Mantse and the head
of the Agbawe family is null and
void even though the Owusu Vrs.
Manche of Labadi (1933) 1 WACA
278 established that Frafraha
lands fall within La Stoollands.
The import of the Narty Vrs.
Mechanical Lloyd Assembly Plant
Ltd (Supra), Owusu vrs. Manch of
Labardi (supra) and other cases
considered in the Nartey vrs.
Mechanical Lloyd’s case is that
the Allodial Title in La Rural
lands is vested in the La Stool,
but the usufructuary title is
vested in the various Quarters
who settled on portions of La
Stoolland. The La stool alone
can therefore not alienate La
Rural land in the care of a
quarter, without the active
involvement of the head of the
quarter and the headman or the
mantse of the Area where the
land is situated. The head of
the Quarter and the Mantse or
the headman of the area can
however make a valid grant of La
Rural land without the consent
of the La Stool if the La Stool
does not raise objection
timeously.
In the case of the Plaintiff’s
Exhibit “C” which was executed
on 8th June 1979 and
registered in 1979, it may be
seen that it is over 30 years
ago.
There is no evidence that the
Co-Defendants have taken any
step against Kisseih George
Amartey to set aside the said
Exhibit “C”. The Plaintiff
pleaded in his reply to
Co-Defendants Statement of
Defence and Defence to counter
claim that his assignor, Kisseih
George Amartey acquired his land
from the Agbawe family in 1979
and that by virtue of this
possession and occupation of the
land in dispute for thirty (30)
years the Co-Defendants are
caught by the provisions of the
Statute of Limitation and
therefore estopped to lay any
claim to the land, the subject
matter of this suit.
The Co-Defendant did not plead
anything in answer to this
pleading of the Plaintiff
neither did he cross examine the
Plaintiff on the evidence he
gave in support of that
Pleading.
By Section 10(1) of the
limitation Act, 1972 (N. R. C.
D. 54), A person shall not bring
an action to recover a land
after the expiration of twelve
years from the date on which the
right of action accrued”.
Again in the case of Nartey Vrs.
Mechanical Lloyd Assembly Plant
Ltd. (1987-88) 2GLR 314, the
Supreme Court held in its
Holding 2 that “By the mandatory
provisions of section 25 (1) of
the Land Registry Act, 1962 (Act
122) the registration of a deed
of sale constituted actual
notice of the fact of
registration to the whole world.
Consequently, on the assumption
that the La Mantse was the true
owner of Frafraha lands, he had
intentionally for very many
years and certainly since 28th
September 1969 led the general
public by his deliberate
omission or failure to assert
his ownership to believe that
the Agbawe family of Frafraha
were the owners of Frafraha
lands. At any rate the stool had
by its inaction permitted the
general public including the
appellant and even the
government to believe that it
had no objection to the
conveyances made by the Agbawe
family. In the circumstances the
stool could not now assert any
title against an innocent
purchaser who had dealt with the
Agbawe family following the La
stool’s inaction and
acquiescence. Consequently, as
against the appellant, the La
stools were estopped by conduct
from impugning the appellant’s
title which had been perfected
by registration and his
possessory acts.”
The 2nd Co-Defendant
who gave evidence for the
Defendants and Co-Defendants,
said he is a member of the
Kplen-we, which according to him
is a family within the Agbawe
Quarter and that Nii Kpobi
Asaawa II is the head of the
Quarter but can only alienate
Frafraha lands, but not
Amanfroko lands.
In Exhibit “C” the land was said
to be at Frafraha. In Nartey
Vrs. Mechanical Lloyds case, the
land was said to be at Frafraha.
The 2nd Co-Defendant
in his evidence in chief said
the land in question is
Amanfro-koo land but not
Frafraha land. Whilst he was
under cross examination, he said
the Mechanical Lloyds Company
falls within Amanfroko. This
company’s land was the subject
matter of dispute in the
Mechnical Lloyds case which
ended in the Supreme Court.
Throughout the case which is
reported in (1987-88) 2GLR at
page 314 and 598, it was agreed
that the land is at Frafraha. I
therefore do not accept the
Defendants and the Co-Defendants
claim that the land in dispute
and the Mechanical Lloyds
company land are at Amanfroko.
These lands are at Frafraha.
Even if the lands in dispute
were to be at Amanfroko, as
claimed by the Co-Defendants, I
will still maintiain that the
Co-Defendants cannot make a
perfect grant of the land in
dispute. This is so because at
customary law there is the
Allodial Title and the Usufruct
holder. If the Allodial Title
is in the La Stool, then the
Usufruct will be in the Agbawe
Quarter. A grant of the Quarter
land without the consent of the
Quarter head will be null and
void.
The persons described as Adjei
Quashie Sowah Klotia and Sowah
Kpabi family may be male
Children of an Ancestor of the
Kpaln we family but not that the
three persons are families.
The 2nd Co-Defendant
in his evidence in chief said
the Agba-We quarter consists of
six families being the Kplen-We,
Owusu-We, Ahua-We Kpobi-We and
Otokpa-We. That he the 2nd
Co-Defendant is from the
Kplen-We and that Adjei Quashie,
Sowah Klotia and sowah Kpabi
came from the Kplen-We of
Oyarifa. If the Agba-We Quarter
consists of six families then
Adjei Quashie, Sowah Klotia and
Sowah Kpabi cannot be families
but male Children in the
Kplen-We. In paragraph 3 of
exhibit K, the 3 persons were
described as human beings but
not as families.
Since the Agba-We holds
usufructuary title, the six
families within the quarter may
have occupied portions of the
quarter lands in their right as
members of that quarter. What
the Co-Defendant ca ll the six
families of AgbaWe Quarter may
be houses within the Quarter.
It is the lands occupied by the
houses within the Quarter that
constitute the Quartter’s land.
The lands ocuppied by the
various Quarters also make up
the Stool’s Land.
P.W. 1 gave evidence that the
Co-Defendants are his nephews,
and the Co-Defendants did not
refute this. The 2nd
Co-Defendant also testified that
he is a member of the Agbawe,
and that P. W. 1 is the overall
head of the Agba-We Quarter.
Since the usufructuary title is
vested in the Agba-We Quarter by
the Owusu & Machanical Lloyde
case and the land covered by
exhibit ‘K’ falls with Agba-We
Quarter land, I would have
declared Exhibit ‘K’ null and
void, even if it had been
properly executed by living
persons as the usufructuary
holder of those lands is the
Agba-We Quarter. As a member of
the Agba-We Quarter, you can
occupy a portion of the land but
it will not permit you to lease
it.
The Co-Defendants pleaded in
their paragrahp 2 of the
Co-Defendants Defence and
counter claim that they are the
owners of the land recited in
the schedule below and have had
same registered at land Title
Registry. To this pleading, the
Plaintiff pleaded that the
certificate was fraudulently
procured. The particulars of
fraud were given. The Plaintiff
tendered the Statutory
Declaration as Exhibit K.
On the face of Exhibit K, the
Declarants were Emmanuel Adjei
Anum, Sowah Klotia, Akpoh,
Samuel Adjei Okpoti, Sowah
Kpabi, Andrews Tawiah Akuetteh
And Klotia Opoti Mensah all of
Oyarifa.
Amongst the particulars of fraud
pleaded were that the claim by
George Muller that he withnessed
the execution of a Statutory
Declaration by Adjei Kwashie,
Adjei Kpoti and Sowah Klotia in
May 1993 was false since they
died befor 1940. The Plaintiff
gave evidence that Adjei
Quashie, Adjei Kpabi and Sowah
Klotia died before 1940, so they
could not execute the document
in 1993.
Since the Plaintiff was not
cross examined on this, I accept
this unchallenged evidence that
the three declarants mentioned
above were dead before the
Declaration was made. Reference
to Hammond Vrs. Amuah and Anr.
(1991) 1GLR 89.
When the 2nd
Co-Defendant was under cross
examination he said Emmanuel
Adjei Anum and Sowah Kpabi are
dead but he cannot recollect the
date of death, but denied that
they died around 1940.
Exhibit K was however executed
by only Samuel Adjei Okpoti and
Sowah Kpabi. Sowah Kpabi even
thumbprined, without any
interpretation to him. Emmanuel
Adjei Anum’s name did not appear
in the execution section. Sowah
Klotia Akpoh’s name appeared as
one of the withness, but he did
not sign or thumbprint.
Since the Declaration is alleged
to be by the six persons, they
should have all signed before a
commissioner for oaths or other
qualified person. That person
must also personally certify and
sign the declaration. See
section 4 of Act 389.
In this case it was only Samuel
Adjei Okpoti and Sowah Kpabi who
signed and thumbprinted
respectively. George Muller
swore an oath that on 8th
day of May 1993, that he was
present and saw Adjei Kwashie
and others duly execute the
instrument. From Exhibit K,
itself, this declaration is
false. Again since Sowah Kpabi
thumbprinted without an
interpretation clause, even if
the other declarants have
signed, Exhibit ‘K’ would have
been null and void: In Narter
Vrs. Mechanical Lloyd Assembly
Plan (Supra) it was held in the
6th holding that “The
Conveyance, Exhibit F, made
jointly by the Frafraha Mantse
and the Atofotse to the
respondent-company was not valid
because on the evidence, it was
not read over to the Frafraha
Mantse, an illiterate. But
section 4 (1) of the Illiterates
Protection Ordinance, Cap 262
(1951 Rev) mandatorily required
any person who prepared a
document for an illiterate
person to correctly read over
and explain such document or
cause the document to be read
over and explained to the
illiterate person. Section 4
(3) enjoined the writer to
clearly write his full name and
address on the document as the
writer thereof. But those
provisions were not complied
with in the execution of Exhibit
F.” I therefore uphold the
claim by the Plaintiff that
exhibit ‘K’ was fraudulently
procured and declared it null
and void.
It has also been held in the
case of In Re Ashalley Botwe
Lands, Adjetey Agbosu and others
vrs. Kotey and others (2003-04)
SC GRL 420, by His Lordship Mr.
Justice Brobbey JSC at page 452
of the report that “Generally
Statutory Decalrations perse,
are self-serving documents and
so of no probative value, where
the facts contained in them are
challenged or disputed..”
In this case I have found that
exhibit ‘K’ was fraudulently
prepared, as some of the
declarants were dead at the time
of its execution, and only two
people executed, with one of the
two being illiterate. As there
is no jurate to indicate that
the illiterate understood what
he thumprinted, Exhibit ‘K’
would have been declared null
and void even if all the persons
had signed or thumprinted it.
The description of the land in
exhibit ‘K’ also gives credence
to the fact that the land
declared in exhibit ‘K’ is part
of a particlar family land. The
description is as
follows………bounded on the
North-West by Family land………..
on the North–East by family
Land…….on the South by Family
land…..” Which faimily is being
referred to in the schedule has
not been named. If that family
is different from the
declarant’s family, then there
should have been evidence that
that family was invited for the
demacation of the boundry as
laid down in Anto vrs. Mensah
(1957) 3 W.A. LR 2/8 at 225.
Apart from not inviting their
boundary owners the land they
claim has been variously
described and different acrage
given. It is trite that a
claimant in a land suit for
declaration of title to land,
recovery of possession and for
an order of injunction must
establish by positive evidence
the identity and the limits of
the land which he claimed. Ref
to Anane vrs. Donkor (1965) GLR
188 at 192 and Nyikplorkpo vrs.
Agbadotor (1987-88) 1 GLR 165
Holding 3.
It must be pointed out that the
Defendants did not mention who
their grantor was in their
pleading. It was the
Co-Defendants who pleaded that
the Defendants are their
lesssees.
In the Co-Defendants Defence and
counter claim, filed on 10th
June, 2009, the Co-Defendants
did not even include their names
as parties or state in which
capacity that they are counter
claiming.
It is trite knowledge that when
a person joins a pending suit
and puts in a counter-claim,
that person is considered as the
Plaintiff in the counter-claim.
In the Co-Defendants
counter-claim they did not claim
for a declaration that the land
is for a family or their family,
but claimed “Declaration of
title to a particular piece of
land. Recovery of possession and
damages for trespass:
Order 2 Rule 4(1) of the High
Court (Civil Procedure) Rules
2004 C. 1. 47 says
Before a writ is filed it shall
be indorsed
(a) Where the Plaintiff
sues in a representative
capacity, with a statement of
capacilty in which the Plaintiff
sues or
(b) Where a Defendant is
sued in a representative
capacity with a
statement of capacity in which
the Defendant is sued.
In this suit, it is the
Co-Defendants who applied to
join the suit as Co-Defendants.
They should have endorsed the
Statement of Defence with the
capacity in which they joined
the suit and the capacity with
which they counter-claimed. Not
having indicated any capacity
with which they joined the suit
and considering the way the
counter claim was formulated, I
hold that they entered the suit
in their own private capacity
and counter-claimed for
themselves.
In the evidence of the 2nd
Co-Defendant, he said he was
giving evidence as Co-Defendant
for Adjei Quashie, Sowaqh Klotia
and Sowah Kpobi families of
Oyarifa. This being the case,
the Co-Defendants were
mandatorily bound to have
endorsed the Statement of
Defence with their capacity.
Not having done so and not being
able to prove that they owned
the land in their own right, but
attempted to prove that the land
belongs to a family, their
counter claim fails even on this
alone.
Since the Co-Defendants have not
been able to prove their claim
to the land, the Defendants who
relied on the Co-Defendants
cannot also claim to have any
land. In Conclusion, I dismiss
the Co-Defendants Counter –
Claim and enter Judgment for the
Plaintiff as follows:
-
The Plaintiff is declared
title to the 3 plots of land
described in schedules (a)
and (b) of paragraph 13 of
the statement of claim.
-
With regard to recovery of
possession, exhibit CW 1 B
indicates that it is only
the 3rd Defendant
who had encroached on part
of the Plots of the
Plaintiff. The 3rd
Defendant is therefore
oredered to give vacant
possission of that portion
of the land encroached on,
to the Plaintiff. If the
Town and Courntry Plainnign
is desirous in maintianing
the proposed road at where
it is indicated, then steps
must be taken to compensate
the Plaintiff since the
proposed road runs through
the Plaintiff’s plots.
-
With regard to Damages,
there is no indication that
the 1st and 2nd
Defendants encroached on
Plaintiff’s land. The claim
for damages against the 1st
and 2nd
Defendants is dismissed.
The 3rd Defendant
has however encroached on
Plaintiff’s land as per
exhibit CW1B. The Plaintiff
is awarded damages of
GH¢5,000.00 against the 3rd
Defendant.
-
I also declare that all
transactions in respect of
Frafraha Lands by the
Co-Defendants, on the basis
of Land Title Certificate
No. GA12050 are null and
void and of no legal effect
especially as the
Co-Defendants were ordered
to return same by the Land
Title Registry.
-
The Defendants and
Co-Defendendants either by
themselves or their agents
are perpetually restrained
from having any dealing with
the plots in dispute.
Cost of GH¢10,000 is awarded
against the Co-Defendant.
Cost of GH¢5,000.00 is awarded
against the 3rd
Defendant.
(SGD.) MR. JUSTICE S.H. OCRAN
Justice of the
High Court
Counsel: Mr. Samuel
Klayson for Defendants and
Co-Defendant
Mr. C.
A. Chambers for Plaintiff,
absent.
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