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IN THE SUPERIOR COURT OF JUDICATURE

IN THE HIGH COURT OF JUSTICE HELD IN ACCRA ON FRIDAY

 25^TH  MARCH, 2011 BEFORE HIS LORDSHIP MR. JUSTICE S. H. OCRAN

SUIT NO. BL 263/2006

_______________________________________________________

ANYETEI ALEMONAI

           VRS.

                                            DA-COSTA A. OWUSU

________________________________________________________

JUDGMENT

BY COURT:

By the Plaintiff’s Writ of Summons and Statement of Claim issued on 10^th February, 2006, the following reliefs were claimed for and on behalf of the estate of Nuumo Nai Alemonai.

1. A declaration of title to all that piece or parcel of land situate lying and being at Fafraha, Accra and bounded on the North-East by proposed road measuring 500 feet more or less, on the South-West by proposed road measuring 500 feet more or less, on the North-West by Vendor’s land measuring 200 feet more or less and covering an approximate of 2.30 Acres, which piece of land is more  particularly delineated on the Site Plan attached to the Deed of Purchase dated 16^th August, 1978 and Registered at the Deed’s Registry as No. 3315/1979 and thereon shewn pink which shows the relevant measurements.
2. Recovery of possession of the siad land.
3. An order of Perpetual Injunction restraining Defendant, his servants, agents and or assigns from doing anything inconsistent with plaintiff’s ownership of the said land.
4. General damages for trespass.

When the Writ and the Statement of Claim were served on the Defendant, he entered appearance and filed defence and Counter-Claim on 2^nd March, 2006.  The Defendant filed amended statement of Defence to the Statement of Claim and Amended Statement of Claim.

Going through the docket, I did not find any Amended Statement of Claim.  There is however evidence on the docket to the effect that on 4^th June, 2007 the Amended Statement of Defence was struck out as withdrawn.  This withdrawal left the Defendant’s original Counter-Claim as follows:

a)    A declaration of title to all that piece or parcel of land measuring 2.297 Acres and more delineated on Cadestral Plan prepared by Survey Department and signed by the Regional Director, Greater Accra.

b)    A perpetual Injunction to restrain the Plaintiff, his servants, agents, workmen, assigns and privies from holding themselves out as owners, custodians or persons duly authorised to grant, convey or dispose of any portion of the said lands and the possession and enjoyment of the land in dispute and in any manner whatsoever from harassing the Defendant or his agents and servants or assigns.

c)    General and punitive damages for trespass.

d)    Costs.

The gist of the Plaintiff’s case as gleaned from his Statement of Claim is that his late father Nuumo Nai Alemonai purchased the land described in his Writ of Surmons from Nii Adjei Komey Okpoti and Atofoatse Tetteh Nukpa – joint Heads of the Agbawe Family of Fafraha, and was issued with a Deed of Purchase dated 16^th August, 1978 and was registered with Land Registry as Number 3315/1979.  That he Plaintiff’s father enjoyed a quiet and undisturbed possession of the land till his death in 1995 after which the Plaintiff and his siblings also assumed control and ownership of the said land till few weeks before the issuance of this writ.

The complaint against the Defendant is that about four weeks to the issuance of the writ, he caused workers to weed a portion of the land for the purposes of commencing constructional works on it.  The Defendant denied the Plaintiff’s claim and stated that he acquired his land from the true owners, and had had his title Deed registered as Number 14/2006.  The Defendant pleaded further that the land claimed by the Plaintiff is enterely different from the land in his possession, and that the Plaintiff’s father, his siblings and himself have not been in possession and control of the land that he claims.

In reply to the Defendant’s defence and Counter-Claim, the Plaintiff denied that the land claimed by him is different from the land that the Defendant claims, and that the Defendant has not acquired any land.  The issues that were set down for trial were those that were filed on 20^th November, 2007 and additional issues filed on 26^th November, 2007.  These are as follows:

a)    Whether or not Plaintiff is the lawful and bonafide owner of the plot of land in dispute in this suit which is more particularly described in the endorsement to the Writ of Summons in this suit.

b)    Whether or not Defendant’s unregistered title can defeat Plaintiff’s duly registered title.

c)    Whether or not the same grantors can lawfully make a grant of the subject land to Defendant’s father in 1980 after having granted same land to Plaintiff’s father in 1978.

d)    Whether or not Plaintiff is entitled to the reliefs claimed in this suit. 

The additional issues are that it be determined by this Honourable Court as a prelminary issue

1.    Whether or not the land the Plaintiff is claiming as per his Site Plan is the same as the land the Defendant is also claiming as per his Site Plan.

2.    Whether or not there was a customary grant of a tract of land that included the land in dispute by the grantors of the Plaintiff in the 1960’s to the grantors of the Defendants.

3.    Whether or not the Plaintiff is estopped by adverse possession of the land in dispute by the Defendant.

4.    Any issue or further issues raised by the pleadings in this suit.

I must state that upon going through the pleadings of the parties, I do not see the basis of issues ‘C’ and ‘2’ which were all set down for hearing on 24^th January, 2008 before the docket was sent to the present court, even though the same Court struck out the amended Statement of Defence as withdrawn on 4^th June, 2007.

Even before issues were set down, the Court had on 27^th July, 2006, in an application for Interlocutory Injunction appointed the Director of Survey Greater Accra Region to conduct a survey of the land in dispute, and to superimpose the various site plans on the composite plan to determine which of the parties encroached on the land in dispute.  There is evidence on the docket that the superimposition of the Plaintiff’s site plan on the Composite Plan raised a lot of controversy.  By a letter from the Regional Surveyor Greater Accra Region, dated 19^th May, 2008 the Regional Surveyor indicated that they could not superimpose the Plaintiff’s Site Plan due to the fact that it was a compass drawing with no gridlines.

The landmarks with which the survey of the Plaintiff’s Site Plan was tied to were no more in place.  C.W. 1, the Surveyor who was assigned the work tendered the Composite Plan and was admitted as Exhibit C.W 1A. The Plaintiff’s Site Plan was not superimposed.  The witness explained under cross examination that he did not superimpose, because of the reasons that he had given in the report i.e no gridlines.

As a result of the reasons given by C.W. 1 for not superimposing the Plaintiff’s Plan Exhibit ‘A’ on the Composite Plan Exhibit C.W. 1A, an order was made to the effect that “the Plaintiff should go to the land in dispute with the Surveyor and show him pillars ARS BP12, ARS BP13 and mile post 14 on Accra-Dodowa road and other landmarks appearing on Exhibit ‘A’ and use same to superimpose Exhibit ‘A’ if possible on the composite Plan.  As a result, Exhibit C.W.1A was taken away by the surveyor for the superimposition.  The tendered Exhibit on the Exhibit file does not therefore include Exhibit CW1A.  Since exhibit CW1A is the report dated 19^th May, 2008, the Defendnt tendered it as Exhibit 1.  There is also a copy on the docket.

On 7^th May, 2010 C.W.1 gave further evidence that he had not done the superimposition because the Plaintiff could not show him and his team any of the pillars or any landmark appearing on Exhibit ‘A’.  He rather showed them three wooden pegs driven into the ground which he said have been placed there by a surveyor the Plaintiff had contracted to indicate the positions of the points mentioned in the Court Order.  As such he had refused to do the superimpositioning without clearance from the Court. The Court ordered C.W. 1 to do the superimposition and state in the report that the features mentioned could not be traced, and that pegs were shown to him.

On 23^rd June, 2010, C.W.1 continued his evidence and tendered the Composite Plan with the additional work as Exhibit CW1D.  Counsel for the Plaintiff Crossed-examined CW 1 on Exhibit CW1D at length till it was adjourned to 5^th July, 2010 for continuation.  On 8^th July, 2010, the parties and Defence Counsel appeared in Court but Plaintiff’s Counsel was said to be sick and asked that the case be adjourned to 6^th July, 2010 at 11:00am for continuation.  On 6^th July, 2010, Counsel for the Plaintiff continued with further cross-examination of CW1.  The suit was then adjourned to 23^rd July, 2010 at 8:00am.  On 23^rd July, 2010, the parties and Defence Counsel appeared in Court.  The Plaintiff informed the Court that his Counsel has just been informed of the death of his brother so he could not attend court.  The suit was then adjourned to 19^th, 20^th and 21^st October, 2010 for continuation.  On the 19^th of October, 2010 a letter dated 18^th October, 2010 with an excuse duty from Holy Dove Hospital was sent to the Court.  As the Court was going on vacation, the suit was adjourned to 20^th January, 2011. 

On 20^th January, 2011 the Defendant was present but the Plaintiff was absent.  Both Counsel were also absent.  A letter dated 20^th January, 2011 and copied to Defence Counsel had been written to the effect that Counsel was attending the burrial of a nephew and wanted an adjournment to some stated dates.  The suit was then adjourned to 31^st January, 2011 being one of the dates requested by Plaintiff’s Counsel.  On 31^st January, 2011 the Plaintiff and his Counsel again failed and or refused to appear in Court.  The suit was again adjourned to 1^st February, 2011 which was one of the dates that Counsel for the Plaintiff asked for in his letter dated 20^th January, 2011 and for which the court had obliged.

Again on 1^st February, 2011 the Plaintiff and his Counsel failed and or refused to appear in Court.  The Plaintiff’s suit was struckout for want of prosecution.  The suit was adjourned to 9^th February, 2011 for Defendant to prove his Counter-Claim.  Hearing notice was to be served on Plaintiff’s Counsel and on the Surveyor.  Even though there was proof of service on Counsel for the Plaintiff neither Counsel nor the Plaintiff came to Court on the 9^th of February, 2011.  Counsel for the Defendant then cross-examined CW1, after which he was discharged.  The suit was then adjourned to 21^st February, 2011 at 10:00am, with an order that defence Counsel should be served with a hearing notice.

The hearing notice was served on 11^th February, 2011.  At 10:20am defence was called upon to open his case on his Counter-Claim, which he did and closed his case that day as the evidence he led was not challenged.  Defence Counsel was asked to submit a written address which he did and served a copy on Plaintiff’s Counsel on 10^th March, 2011. 

To resolve the issues between the parties, I would first resolve additional issue 1, which is as follow:

“Whether or not the land the Plaintiff is claiming as per his site plan is the same as the land the Defendant is also claiming”.

The evidence of CW1 shows that the land covered by the Plaintiff’s Site Plan is not easily identifiable as it was a compass drawing, and the features that the drawing was attached to had been removed.  C. W. 1 explained that there were no grid lines used in Exhibit ‘A’. Exhibit 1 which was signed by J.C. Acquah, Greater Accra Regional Surveyor on 19^th May, 2008 and Exhibit 2, dated 5^th June, 2007 signed by L. O. Torsu, Acting Director of Survey and the Officer in charge Land Title Registry all said there is no Grid Lines, so Exhibit ‘A’ cannot be shown on the Composite Plan.

C.W.1 also testified that the Plaintiff could not identify any of the features that were said to be on exhibit ‘A’ so he had to employ the srvices of a surveyor to pillar for him.  It was the duty of the Plaintiff to have called that Surveyor to have led evidence to explain how he identified the places that he fixed the pegs.  At any rate the order of the court was that the Plaintiff should point out those features to C.W.1.  Even if the Pillars fixed by the Plaintiff’s Surveyor are taken as the reference points, the Plaintiff’s land as shown by him on Exhibit CW1D differ from what his Site Plan indicates.  I however do not accept the pillars fixed by the Plaintiff’s Surveyor, without any explaination as the places for the features mentioned in Exhibit ‘A’.  Exhibits 5 and 6 indicate that the land shown on Exhibit CW1D cannot be correct as there are not gridlines on Exhibit ‘A’.

The Plaintiff’s Site Plan, Exhibit ‘A’ and the Defendants Site Plan in Exhibit 3 have all been registered.  This means they are different otherwise the second one could not have been plotted by Lands Commission.  Exhibit ‘A’ has Land Registry Number 3315/1979 whereas Exhibit 3 has Land Registery No. 14/2006.  Since the Registration of these pieces of land had been done by Lands Commission, it is presumed that the act of processing the two parcels of land and giving them separate numbers indicates that the parcel plots are different.

The case of Ghana Ports and Harbours Authority and Captain Zeim vrs. Nova Complex Ltd (2007-08) SC GLR 806, considered Section 37 (1) of the Evidence Act 1975 ( N.R.C.D 323) and held that “the common law rule of presumption, Omnia Praesumuntur rite et Solenmiter esse acta, which has gained statutory recognition under Section 37(1) of the Evidence Act, 1975 (N. R. C. D 323), providing that “it is presumed that an official duty has been regularly performed applies not only to official, Judicial and governmental acts, but also to duties required by law…..”

In this case, the Plaintiff showed a particular land to the Surveyor and it was given the Colour blue.  However when I ordered him to point out mile post 14 on the Accra-Dodowa road, and pillars ARS BP12 and ARS BP13 the Plaintiff could not show any of them.  When he engaged the services of a surveyor, who fixed the pegs, without any explaination, which enabled the land on Exhibit ‘A’ to be plotted, the land fell outside what the Plaintiff himself showed as belonging to him.  The import of this is that the Plaintiff does not know the land that was given to his father in Exhibit ‘A’.

 It is trite that a party to a land suit must identify his land or else he would loose.   In the case of Nyikplorkpo vrs. Agbodotor (1987-88) 1 GLR 165, the Court of Appeal held at page 171 that to succeed in an action for a declaration of title to land, recovery of possession and for an injunction the Plaintiff must etablish by positive evidence the identity and the limits of the land which he claims.  See also Agyei Osae & Ors. Vrs. Adjeifio and others (2007-08) SC GLR 499 holding 3. Not knowing the land that is covered by exhibit ‘A’ and considering that both pieces of land had been processed by Lands Commission, Accra, I hold that the land the Plaintiff is claiming as per his Site Plan is not the same as the land the Defendant is claiming as per his Site Plan.

Since the two parcels of land are different, the Plaintiff had no business in restraining the Defendant from building on his plot of land.

On the Defendant’s Counter-Claim, there is no contradiction to his evidence that after the death of his father, he approached his father’s grantor for a new lease as his father’s document got lost at the plotting stage at Lands Commission Accra. This time he took the grant in his own name and that of his wife Mrs. Yvonne Owusu-Duodo.  Exhibits 3, which had Land Registry Number, 14/2006 bears the name of the Plaintiff and Mrs. Yvonne A. Owusu-Doudu, the person the Plaintiff described as his wife.

Even though in Defendant’s pleading he did not indicate the extent of the trespass by the Plaintiff, his evidence indicates that the Plaintiff cleared the whole land.  There is also information on the docket to the effect that on 6^th June, 2006, the Defendant was restrained from doing anything on the land.  This order was extended to include the Plaintiff on 27^th July, 2006.  Since the land is not for the Plaintiff but he has prevented the Defendant from using the land since 6^th June, 2006, the Defendant has actually lost something, but how much; the Court was not told.  Exhibit 4 indicates that the Defendant was building at Frafraha, and his employers gave him a building loan for that.

The Court takes judicial notice that prices of building materials in June, 2006 is not the same as today March, 2011 as these have gone up.  The Defendant will therefore need more money to continue with the building on the land now than in 2006. 

In conclusion, I dismiss the Plaintiff’s claim and enter judgement for the Defendant as follows:

a)    The Defendant and his wife Mrs. Yvonne A Owusu-Duodu are declared title to all that piece or parcel of land contained in Exhibit 3.

b)    The Plaintiff, his agents, servants, workmen, privies etc. are perpetually restrained from having anything to do with the land described in (a) above.

c)    The Defendant is awarded GH¢10,000.00 as damages for trespass and for preventing the Defendant from continuing with the development on the land. 

The Defendant is awarded cost of GH¢5,000.00

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

                          Justice of the High Court

Counsel:       Mr.  Ali Abdul Samard for Defendant

                        Mr. G. D. A. Laryea for Plaintiff, absent.