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J U D G M E N T
The Plaintiff, who sued for
herself and on behalf of her
siblings and their dependants
claimed as follows:
a)
Declaration that House No F213/2
Lokko Road Osu, built by W. K
Ayettey had by his death become
family property of the
Descendants of William Kofi
Ayettey.
b)
An order against the Defendants
prohibiting them from, by any
means or manner disposing off
the said common property without
the consent of all the legal
beneficiaries of W. K Ayettey.
c)
Perpetual injunction against the
Defendants, their agents,
assigns and all those who derive
title through them, from by any
means interfering with the
peaceful occupation and
enjoyment of the said house by
the relatives staying and
continuation of family there.
d)
Cost.
The statement of claim that
accompanied the writ stated that
the plaintiff is the eldest of
one group of the grand children
of William Kofi Ayettey, the
person who built House Number
F213/2, Lokko Road, Osu and has
sued for herself and on behalf
of her siblings and their
descendants
The gist of the plaintiff’s case
from her pleadings is that the
land and the house belonged to
William Kofi Ayettey, and after
his death, the land and house
became the property of his
children, whose children are the
parties in this suit.
The defendant on the other hand
pleaded that her late father J.
E Ayettey purchased the land and
built House No F 213/2 Lokko
Road, Osu, Accra and brought
their grandfather W. K. Ayetteh
to the house.
At the close of pleadings the
following issues were set down
to be tried.
a)
Whether or not the Osu House NO.
F213/2 in dispute is the self
acquired property of William
Kofi Ayettey
b)
Whether or not upon the death of
the said William Kofi Ayettey
intestate, the said property
descended to the six (6)
children of the said Deceased
William Kofi Ayettey and same
has descended unto all the
children of these children of
the Deceased owner according to
patrilineal inheritance.
c)
Whether or not it was rather not
the deceased father William Kofi
Ayettey who gave a room to his
son J. E Ayettey in the house.
d)
Whether or not it is J. E.
Ayettey one of the three (3)
sons of William Kofi Ayettey who
purchased the land on which
House No F 213/2 Lokko Road, Osu
is built.
e)
Whether or not the said house
was built by J. E Ayettey and
invited his father William Kofi
Ayettey to relocate to reside in
the said house after completion
of same.
f)
Whether or not J. E Ayettey
pulled down the carpentry shop
of the father after his death to
build six (6) small rooms in its
place which was a mere
appreciation of the father’s
acquired property, which
descended to all his children
upon his death according to
patrilineal inheritance.
g)
Whether or not the said house as
a family house descended to all
the descendants of William Kofi
Ayettey and therefore the
claimed Land Title Certificate
No. GA12674/VOL.12 Folio 473
dated 1st February
1993 applied for and granted to
the defendants above should not
be declared null, void and the
Land Title. Registrar ordered
to cancel same.
h)
Whether or not the Defendants
herein has the right to dispose
of the said house.
i)
Any further or order issues
raised by the pleadings in the
suit.
On 19/3/2007, Geotech systems
Ltd was joined to the suit as
co-defendant.
The co- defendant filed its
defence on 22nd May
2007, before the plaintiff
formally amended the writ and
statement of claim on 11/6/2008
to include the co-defendant.
With the defence of the
defendants to the effect that
they had applied for land title
certificate and had obtained
same, and the disclosure by the
defendant that the house had
been sold, and the
co-defendants’ defence that it
had bought the house, the
plaintiff should have amended
her writ of summons to include a
relief calling on the court to
set aside the Land Title
Certificate, and the sale of the
house to the co-defendant.
This however was not done but
issues “g” and “h” were included
in the issues to be tried.
For the resolution of the issues
set down for hearing, issued
“a” “d” and “e” will be
determined first.
From the pleading the
plaintiff’s case is that it was
W. K Ayettey who acquired the
land and built on it. The
defendants on the other hand
pleaded that it was her father
J. E Ayettey who purchased the
plot and built on it from his
own resources.
The plaintiff gave evidence
through Mr. Michael Nii Awotey
Ayettey and also called P W I
Nii Lartey Nartey whose evidence
was that documentary evidence
which was made available to them
indicated that other houses in
the area shared boundary with W.
K Ayettey. He tendered exhibit
“A” which is an indenture dated
December 1932 and exhibit “B”
also an indenture dated 5th
June 1936. In these exhibits W.
K. Ayettey’s entire name was
mentioned as sharing boundary
with the plots covered by those
indentures. In exhibit “B”
apart from mentioning the name
of W. K Ayettey as a boundary
owner in the indenture W. K
Ayettey was also mentioned in
the site plan annexed.
The plaintiff also tendered
exhibit “E” which is a permit to
W. K Ayettey to build on his
land situated at Christianborg,
Accra. It is permit No 190 and
is dated 18th October
1923. The permit said “to build
on HIS LAND”, Exhibit E1 is
building permit No. 149, which
is permit to make additions to
existing building at
Christiansborg, Accra. It also
stated that “I, W. K. Ayettey of
House No. E 46/14
Christiansborg, Accra hereby
apply for permission to execute
a work on my land situated near
St. Thomas Presbyterian Infant
School at Christiansborg,
Accra”. This is dated 26th
day of June 1935. The defendant
who gave evidence through
Angelina Ayettey, a junior
sister to the defendant said the
land was acquired by his father
J. E. Ayettey, and built on it.
However, whilst under cross-
examination the defendant said
she knows that documents on the
house are in the name of her
grandfather W. K. Ayettey as the
owner. As he gave money to her
grandfather to buy the land for
him. The defendant did not make
it her case in the pleading that
the land was bought by her
father in the name of her
grandfather.
Buying land in the name of
another person is a factual
matter that must be pleaded. Not
having pleaded that fact that
her father bought the land
through her grandfather, in the
grandfather’s name, this
evidence is rejected as a
departure from her pleading.
Ref Dam Vrs Addo (1962) 2 GLR
200.
The defendant’s spokesperson is
also not competent to lead the
evidence that her father bought
the land and built on it since
she admitted that she had no
personal knowledge. She said it
was her senior sister who told
her that. The senior sister
also had no personal knowledge,
but it was alleged her father
told her. She was therefore not
competent to give that evidence
as Section 60 (1) of the N.R.C.D
232 says that a person must have
personal knowledge in matters he
gives evidence on.
In this case, all the parties
and the witnesses did not have
personal knowledge. The
plaintiff however relied on
exhibits A, B, E, and E1, as
proof of their assertion that
the land and the house belonged
to W. K. Ayettey.
Exhibit E is dated 18/10/1923,
and it said “a building on his
land situated at Christiansborg
, Accra”. Even though there is
clause 2 of Exhibit E which says
“The permission does not confer
any right or title to the above
premises lands or building, nor
the right to occupy” there is no
evidence that since 1923 anybody
had challenged W. K. Ayettey on
his occupation of the land.
In Exhibit E1 permission was
also granted to W. K. Ayettey on
30th July 1935 to
make additions to existing
building at Christiansborg,
Accra.
The defendant also tendered
exhibit 3 from AMA, which
indicated that since 1962, the
property owner in their record
is J. E Ayettey. The house
number given is House Number 40
Lokko Road, Osu.
In the writ the house number
given is House No. F213/2, Lokko
Road, Osu. The defendant did no
give evidence that the number
has been changed and that House
Number 40 Lokko Road is the same
as House Number F213/2 Lokko
Road, Osu.
Again the parties all agree that
the house in issue had been in
existence long before 1962, and
that the defendants’ father
lived in this house with the
defendants’ grandfather at a
time that J. E Ayettey was
colonial civil servant. House
No. 40, Lokko Road cannot
therefore be the same house in
issue.
On the authorities of ADWUBENG
vrs DOMFEH (1996-97) SCGLR 660
and KOGLEX LTD (NO2) vrs FIELD
(2000) SCGLR 175 at 155, I
accept the case of the plaintiff
that the land and house in
dispute belonged to W. K.
Ayettey at the time of his
death. I therefore resolve
issues a, d, and e in favour of
the plaintiff to the effect that
the land on which house number
F213/2 Lokko Road, Osu was build
and the house itself belonged to
W. K Ayettey before his death
and that both land and house was
not bought and built by J. E.
Ayettey
Even though none of the parties
pleaded that W. K. Ayettey died
intestate or testate, paragraphs
2 and 8 of the plaintiffs
amended statement of claim gives
the indication that W. K.
Ayettey died intestate. Since
there is evidence by both
parties that W. K. Ayettey died
in 1965, it meant PNDC Law 111
will not apply, but rather
inheritance under Ga Customary
Law. The parties agree that
they belong to the Patrilineal
System of inheritance as W. K.
Ayettey was from Osu Alata.
This assertion of the parties
that they belong to the
patrilineal system of
inheritance is confirmed by the
case of Augustt vrs Aryee (1961)
2 G.LR584 holding 2 of which
says “apart from Accra town (Ga
Mashie) all the Ga Adamgbe
tribes of which Osu is one, are
partrilineal societies for the
purpose of succession.
Since W. K Ayettey died
intestate in 1965, his house No.
F213/2 Lokko Road, Osu descended
to his six (6) children since
they are amongst the immediate
family members as held in
Amponsah and others vrs Baden
(1989-90) 2 GLR 291 NARTEY AND
OTHERS VRS KOSHI AND ANOTHER
(1961) 2 GLR 728 and Agyei and
Another vrs Fori and others
(1998-99) SC GLR 191.
The Plaintiff conceded that J. E
Ayettey pulled down the father
carpentry shop which was on part
of the land and built 6 small
rooms in its place.
There is evidence before me that
J. E. Ayettey, lived with his
father in this house as he was a
civil servant in Accra. As the
eldest son, it is not surprising
that he controlled the house of
his father when the father
became old and when he died.
Nevertheless even if J. E.
Ayettey managed the house in
dispute, he did that for the
benefit of the family. Though
he built 6 rooms on the land,
that did not change the
character of the house. J. E
Ayettey only had life interest
in the six rooms. With his
death in 1971, the six rooms
reverted to the family Ref
Amoabima and Anr vrs Okyir and
Anr (1965) GLR 50, Yeboah & Ors.
vrs Kwakye (1987-88) 2GLR5O
Granted the house in issue was
even put up by J. E. Ayettey,
with his death intestate in 1971
that house became family
property and the plaintiff and
her siblings being part of the
immediate family members of J.
E. Ayettey can prevent the
defendants from selling the
house without the consent of the
plaintiffs. Amponsah and others
vrs Budu (Supra) and Fianko vrs
Aggrey (2007-08) SCGLR 1135.
The next issue to consider is
whether or not the defendants
have the right to dispose off
the said house.
The co-defendant has pleaded
that he is a bonafide purchaser
without notice. The
co-defendants managing director
also gave evidence that a search
was conducted and it showed that
the defendant had certificate of
title being exhibit 2. Exhibit
2 is dated 1st
February 1993. The co-defendant
also went to the building and
saw that it is old.
Again, there is evidence that
one of the plaintiffs and other
tenants were in the house. The
co-defendant’s managing director
should have made inquiries from
the sitting tenants. If he had,
they might have informed him of
the family nature of the house.
In Osumanu vrs Osumanu and
Another (1995-96) GLR 672, it
was held that an intending
purchaser of property was put on
his inquiry to make such
investigation as to title as
would enable him to rely on the
plea of bonafide purchaser for
value without notice.
If he failed to make such
inquiries, he acted at his own
peril if subsequent events
disclosed the existence of a
valid challenge to the title he
acquired.
From exhibit “D” which is dated
12/10/2006, an indication was
given to the defendants and
their lawyers that the
plaintiffs were laying a claim
to the house.
Exhibit 6, which is the
indenture between the defendants
and co-defendant, was dated 30th
October 2006, but the oath of
proof shows that it was on 14th
February 2008 that it was sworn
before the Registrar of Lands,
but the date that the Lessors,
executed it had not been stated.
Again Exhibit 6 has not been
registered under either the Land
Registrar Act (Act 122) or the
Land Title Registry Act (PNDC L
152)
Exhibit 6 is therefore of no
effect. Ref. ODAMETEY vrs
CLOCUH and Another (1989-90)
1GLR 14.
It must also be noted that this
writ was issued on 18th
October 2006, whereas exhibit 6
is dated 30th October
2006 but executed before the
Registrar of Lands on 14th
February 2008. Even if it had
been registered it would not
have been able to pass any title
since the plaintiffs were
challenging the right of the
Lessors, who are the defendants
in this suit at that time.
Since I have already held that
the property belonged to W. K.
Ayettey, and that it became
family property when he died in
1965 the vendors could not sell
without the consent of the
plaintiff. The Sale to the
Co-defendant is therefore null
and void.
In this case, the plaintiffs
acted timeously. They even
acted before the co-defendant
executed exhibit 6. In the case
of Fianko vrs Aggrey (2007-08)
SCGLR 1135, the Supreme Court
held at page 1146 as follows:
“….. It is trite law that when a
head of family sells family
property without the assent and
concurrence of the family, the
sale is voidable and not void.
Accordingly the plaintiff has
the right to have the sale set
aside but to do so timeously
………… in this case we do not
think the plaintiff slept on her
rights. Accordingly her action
is neither statute barred nor
caught by laches and
acquiescence. She was therefore
entitled to set the sale aside”
In the Fianko vrs Aggrey case,
the plaintiff appellant
respondent, sued for declaration
of titled to land which belonged
to her grandmother, a guan woman
who died intestate.
After the grandmother’s death,
the plaintiff’s mother took over
the land. When her mother died
her two uncles farmed on the
land. After the death of one of
his uncles, the other uncle sold
the land to the defendant –
Respondent – appellant’s
father.
The Plaintiff heard of the sale
in 1984. In 1988, the plaintiff
went for an arbitration to
reclaim the Land. When the
defendant refused to abide by
the award the plaintiff
instituted an action but lost.
On appeal to the court of Appeal
her appeal was allowed and the
defendants appeal to the Supreme
Court was dismissed.
The defendant and the
co-defendant also pleaded and
gave evidence that the
defendants had already been
issued with land title
certificate and tendered same as
exhibit 2.
The Plaintiff has however
successfully proved that the
house belonged to W. K. Ayettey
and after his death in 1965; it
became the property of W. K
Ayettey family including them.
In the case of Brown vrs
Quarshigah (2003 - 04) SCGLR
930, the supreme court held that
“Under section 43(1)-(4) and 48
of the Land, Title Registration
Law 1986, (PNDCL 152) the rights
of a registered proprietor 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 hereto free from all
other interests and claims
whatsoever.
An indefeasible title meant
complete answer to all adverse
claims on mere production of the
certificate. However, an
indefeasible title was subject
to overriding interests such as
stated in section 46(i) (f) of
the Law, namely “rights whether
acquired by customary law or
otherwise, of every person in
actual occupation of the land
save where enquiry is made of
such person and the rights are
not disclosed”
In this case, the defendant and
her siblings did not acquire the
land for VALUABLE CONSIDERATIONS
or by an order of court. They
based their claim on customary
law i.e. that the land belonged
to their father, which claim has
been shown to be false.
The defendants not having
acquired the land or house for
valuable consideration, their
land title certificate cannot be
indefeasible especially as the
plaintiffs’ have proved that
they also have interest in the
land and house by operation of
customary law, I am however
unable to order its cancellation
since that relief was not
claimed.
Defendants counsel raised the
issue of capacity in his address
and attempted to say that the
Plaintiff has no capacity. He
attempted to say that the
plaintiff has no capacity if the
house were to be for W. K.
Ayettey since it is the
successor who should have sued.
He argued further that it was
because W. K. Ayettey left no
identifiable estate worth
administering no customary
successor was appointed.
It must be stated that the
plaintiff issued her writ in a
representative capacity. In
paragraph 1 of the statement of
claim, she described the
capacity in which she has sued
and the people that she is
representing. The defendant did
not deny this. Again the issues
which were set down to be
determined did not also include
capacity.
The plaintiffs spokesperson also
said that plaintiff is her
cousin and the defendant her
elder sister. In effect, the
defendant admitted the position
of the plaintiff in both the
pleading and in evidence. Since
the plaintiff claims that she is
a grandchild of W. K. Ayettey as
well as the defendant, and with
all the children of W. K.
Ayettey having died, she and her
siblings have interest in the
property and need not sit down
unconcerned when the property is
in danger.
If the defendant had raised
this issue in the pleading
evidence would have been given
to indicate whether a successor
was appointed and he is alive or
not. In Re Ashalley Botwe
Lands; Adjetey Agbosu and Others
vrs Kotey and Others (2003 -04)
SCGLR 420 the supreme court held
in the 1st and 3rd
holdings that the general rule
recognized in Kwan vrs Nyien;
that the head of family was the
proper person to sue and be sued
in respect of family property
was not inflexible …. The court
then went ahead and explained
some of the special circumstance
that will permit a family member
to sue. In holding 3, the
supreme court held that the
failure of the defendant to
specifically deny the detailed
description of the disputed land
as pleaded in paragraph 4 of the
plaintiff statement of claim
placed no obligation on the
plaintiffs to proof…………”
In this case the defendant did
not challenge the capacity, but
P W I and the defendants
admitted the position of the
plaintiff as an elder grandchild
of W. K Ayettey.
Again in In RE. Atta
(deceased) Kwako vrs Tawiah
(2001 – 02) SCGLR 461 the
Supreme Court held that whenever
the self-acquired property of a
deceased intestate is said to
become family property, it is
the immediate family of the
deceased which takes the
property.
What this means is that the
family acquires title of
ownership to the property, but
the family as owner always and
invariable, appoints a member of
the family called the
“successor” to administer the
property for and on behalf of
the family. This successor,
stricto sensu, does not have
title. He is vicariously
described as a trustee or
caretaker of the family with
powers to control and manage the
property.
The successor at customary law
is not necessarily linked up
with the property of the
deceased. A person may die a
pauper and still have a
successor …. “
Defence counsel cannot therefore
argue in his submissions that
because W. K. Ayettey had no
property, no successor was
appointed since that issue was
not raised during the trial.
The plaintiff instituted this
action because they are part of
the immediate family members of
W. K. Ayettey now alive. The
Letters of Administration
granted to the defendant and
one Rev. Abraham Michael Oraka
Ayettey on 17th
October 1972, was in respect of
the estate of J. E. Ayettey.
There is no evidence that this
house in issue was declared to
be part of J.E. Ayettey’s
estate. The L. A. said the
deceased was resident at House
No. F 235/2 St. Thomas Osu. The
plaintiffs however led evidence
that J. E Ayettey lived with his
father W. K Ayettey in the
father’s house at House Number
F213/2 Lokko Road, Osu and
therefore the L.A stating that
J. E. Ayettey resided in this
house does not make him an
owner.
I therefore enter Judgement for
the Plaintiff as follows:
a)
Declaration that House Number
F213/2 Lokko Road, Osu built by
W. K. Ayettey is the family
property of the descendants of
the said W. K. Ayettey including
the defendants.
b)
The defendants are prohibited
from disposing off or leasing
House No. F213/2 Lokko Road, Osu
without the consent of all legal
beneficiaries of W. K. Ayettey.
c)
An order of perpetual Injunction
against the defendants, their
agents assigns and all those who
derive title through the
defendants from interfering with
the peaceful occupation and
enjoyment of any portion of the
said house in their possession,
and any further dealings with
the house without the consent
and concurrence of the
plaintiffs.
The co-defendants counter- claim
is dismissed as the defendants
have no capacity to lease the
land. The plaintiff are awarded
cost of GH¢ 1,000.00 against the
defendant
Counsel: Mr.
M.Y.N. Acheampong for Plaintiff
Mr. Same Wood for
Defendants
(SGD)MR.S. H. OCRAN J.
JUSTICE OF THE
HIGH COURT
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