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JUDGMENT:
On 5th July, 2006,
the Plaintiff issued this writ
in his capacity as the head of
Botchway Glover Family of Teshie,
Accra, and claimed the
following:
a)
Declaration of title to and the
recovery of possession of the
whole Botcway Glover Family
Land, the subject matter of the
dispute which has been
registered in the names of the
defendants and the various
portions assigned to the other
defendants.
b)
An Order for ejectment against
the defendants, their privies
and assigns from the land in
dispute
c)
Recovery of possession of five
plots granted to the 3rd
Defendant by the Plaintiff’s
family.
d)
An Order revoking and cancelling
all land certificates issued to
all the defendants in respect of
the land in dispute.
e)
Perpetual injunction restraining
the defendants, their privies
agents heirs and assigns from
interfering with such land in
dispute or otherwise interfering
with possession and quiet
enjoyment of the land by the
Plaintiff’s family.
f)
Damages for trespass.
An amended statement of claim
was filed on 4th
March, 2010 with leave of the
Court granted on the same 4th
March, 2010. An amended
statement of defence was filed
for 1st to 10th
Defendants on 10th
March, 2010, after leave has
been granted on 18th
February, 2010.
Even though this amended Defence
was filed out of time, I
admitted same as the Defence for
the 1st to 10th
Defendants. The 1st
to 10th Defendants
counter-claimed as follows:
a)
Declaration of title to all that
piece of land, subject matter of
this claim.
b)
An Order of perpetual injunction
restraining the Plaintiff, his
privies, assigns heirs, agents
or whosoever derives authority
from him from interfering with
the land in dispute or otherwise
from interfering with the
possession and quiet enjoyment
of the land by Defendant.
c)
Cost.
The Plaintiff traced the
family’s roof of title from Numo
Botchway Glover. According to
the Plaintiff, Botchway Glover
went with one Numo Akpor from
Teshie to Tsaamin to farm. Numo
Akpor went with his siblings and
occupied the land without
informing anybody as the land
was vacant, sometime in 1700.
They farmed on it, and it became
their family land. In 1944,
another Numo Akpor demarcated
the land among his brothers and
planted Ntome trees as
boundaries. The Plaintiffs say
they are from Botchway Glover
family, which was farming on the
land before the demarcation in
1944 and had continued to be in
possession of their portion of
the shared land.
The 1st to 10th
Defendants hereinafter being
referred to as the Defendants
denied that the land in dispute
belonged to Akporman, and stated
that it forms part of Ashongman
land. They however admitted
that the Plaintiff and members
of their family have been
farming on the land, but not as
owners but as licensees. This
admission by the Defendants is
significant and will be referred
to in due cause. The defendants
also pleaded the judgement of
Bosumpim and Another vrs Martei
& Another, dated 3rd
May, 1904 and Peter Mensah Anteh
vrs. Solomon Odenkey Abbey, by
the High Court, Accra on 30th
January, 1980.
Many issues were set down for
trial but by the evidence, the
most important issue that ought
to be resolved first is
a)
Whether or not the land in
dispute is part of Akporman land
or Ashongman land.
This is so because the
Plaintiffs claim that the land
forms part of Akporman land, but
the Defendants say it is part of
Ashongman land. From the
Defence Counsel’s
cross-examination of the
Plaintiff, it was suggested to
the Plaintiff that the land is
within Ashongman land, but the
Plaintiff denied. The Plaintiff
also denied under
cross-examination that their
ancestors were farming on the
land at the permission of the
Odai Ntow family. From the
Defendants further
cross-examination of the
Plaintiff, the Defendants put up
a case that the land occupied by
Nii Akpor forms part of
Ashongman land. However, in the
Defendant’s evidence-in-chief,
he admitted that Akporman is not
part of their family land.
This admission by the 1st
Defendant is commendable, since
in exhibit ‘G’, One Osabu, who
described himself as a resident
of Ashong Town and a person
whose Aunt, Awele, was married
by Ashong one of the sons of
Odai Ntoi, mentioned Akopor’s
land as one of the boundaries of
Ashong Town. Mensa Appley, who
was described in exhibit ‘G’ as
Mensa Apple being the Chief of
Ashong town, said the boundaries
given by the last witness,
---being Osabu, for Ashong town
are correct.
The evidence from exhibit ‘G’
and that of 1st
Defendant suggest that Akporman
and Ashongman share boundary.
This is so because the Plaintiff
claims the land they occupy was
part of Numo Akpor’s land that
he occupied many years ago, and
gave portions to various
families who went with him, when
he left Teshie to occupy the
land and that included the
Plaintiffs ancestor Botchway
Glover.
What is the common boundary
between Akpor’s land and Odai
Ntow’s land is however not
clear. The Defendant pleaded
the case of Peter Mensah Anteh
vrs. Solomon Aryeetey G. S.
Okine and tendered the Judgement
in that suit as exhibit 2. In
the said Judgement i.e. Exhibit
2 the trial Judge stated that
the two plans dated 10th
September, 1972 and 7th
February, 1978 which are all
said to be modernized copies of
the 1904 plan in Martei and
others were done by the same
person but were not equal. One
is 12,581 Acres and other is
said to be 11,875.00 Acres.
Again the Trial Judge found that
the plan attached to the
statement of claim has an area
marked pink clearly shown but it
was not the same clearly
indicated on the plan attached
to exhibit ‘B’ in that suit.
The Trial Judge also held that
the writ in Bosumpem and another
vrs. Martei and others was not
included in the record, so it
was difficult to determine the
boundaries and the extent of the
land in dispute. The Trial
Judge found again that the
‘Judgement of W. Brandforth
Griffith is also silent on the
extent and boundaries of the
land, the subject matter of the
suit. All that he said about
the boundaries was that the land
in dispute was on the border
land between Akwapim and Accra.
The surveyor who did the
modernization of the 1904 plan
was also not called by either
side. The Judgement himself was
silent on the plan”.
This being the state of affairs,
one may ask, on what basis was
exhibit I the Statutory
Declaration prepared? In exhibit
I the Judgement of Justice
Brandford Griffith in K.
Bosumpim vrs. Martei & ors. was
recited as the root of the
declaration. Some years later,
Agyapong J. in a Judgement
between two factions of the
family found that the Judgement
relied upon in the making of
the Plan attached to the
exhibit, did not make clear the
boundaries and the extent of the
land the subject matter in the
Bosumpim vrs. Martei and others
case.
Since the land shared boundaries
with others including one Akpor,
there should have been evidence
that when the plan attached to
exhibit I was being prepared,
the boundary owners, especially
a relative of Akpor, or a
representative of Akporman was
present. There is no evidence
before me that anybody was
called to witness the
demarcation of the boundary
before the plan in exhibit I was
prepared. In the case of ANTO
VRS. MENSAH (1958) 3 W.A.LR 218
it was held in the 3rd
holding that “It is a principle
of native custom that where a
boundary is to be demarcated,
this is to be done by the owners
of the bounded areas acting in
conjunction with each other. A
unilateral attempt to demarcate
by one owner is ineffective.”
Again in the case of In Re:
Ashalley Botwe lands; Adjetey
Agbosu and others vrs. Kotey and
others, (2003-04) SC GLR 420,
the Supreme Court held at pages
450 to 452 that “Generally,
Statutory declarations perse,
are self serving documents and
so of no probative value, where
the facts contained in them are
challenged or disputed. That a
statutory declaration was not a
registerable document under the
Land Registry Act, 1962 (Act
122) nor was it a deed or
conveyance purporting to create
or convey an interest in land.”
The registration of exhibit I by
the 1st Defendant’s
family will therefore not create
an interest in the land in
favour of that family against
the Defendants family. There is
also no evidence before me that
after the land in exhibit I had
been processed, the 1st
Defendant’s families or their
grantees undertook structural or
other development on the land,
without the Plaintiffs family
protesting. That act would have
been construed to be
acquiescence on the part of the
Plaintiffs family, to the claim
of the 1st
Defendant’s family. All what
the 1st Defendant
said was that if the land was
for the plaintiff’s family they
would not have waited till 2003
before attempting to register.
I do not accept this reason as
tangible and reject same.
The Plaintiff pleaded in his
paragraphs 11 and 12 of the
Statement of Claim that his
family had been farming on the
land before the demarcation in
1944, and gave the boundaries of
that land. The Defendants
admitted these paragraphs 11 and
12, but stated that the
Plaintiffs were farming on the
land as their licensees. Since
the Plaintiff denied that his
family was on the land as a
licensee of the Odai Ntow
family, the burden was on the
Defendant to prove this, as it
was held in the case of
Barkers-Woode vrs. Nana Fitz
(2007-08) SC GLR 879. The
Defendants however failed to
prove that the Plaintiff had
been on the land as their
licensees. The Plaintiff
however called P.W. 1, P.W. 2
and P. W. 3 all of whom gave
evidence that the land that the
Plaintiff’s family occupies is
part of Akporman land. The
burden of proof of the ownership
of the land in dispute shifted
to the Defendant as the
Defendant admits that the
Plaintiffs are in possession;
and this they failed to proof.
This is so because the rule is
that he who asserts proves.
Section 10 (1), 11 (1) and 11
(4) of the Evidence Act 1975
(N.R.C.D. 323) states that “For
the purposes of this Decree the
burden of persuasion means the
obligation of a party to
establish a requisite degree of
belief concerning a fact in the
mind of the tribunal of fact or
the Court.
11(1) says “For the purposes of
this Decree, the burden of
producing evidence means the
obligation of a party to
introduce sufficient evidence to
avoid a ruling against him on
the issue and section 11(4)
says. In other circumstances
the burden of producing evidence
requires a party to produce
sufficient evidence so that on
all the evidence a reasonable
mind could conclude that the
existence of the fact was more
probable than its non existence.
In the case of Aidoo vrs Adjei
and others (1976) 1 GLR 431 it
was held that a person in
possession of land was presumed
to be the absolute owner. Then
in the case of Nartey vrs.
Mechanical Lloyed Assembly plant
Ltd (1987-88) 2 GLR 314 Mr.
Justice Amuah-Sekyi J.S.C
explained that the possession
mentioned in cases that deal
with possession “is not
possession for a day or two, a
week, a month or even a year
which suffices to bring the rule
into operation; it is rather
long and peaceful, undisturbed
possession over a considerable
period of time, long and
peaceful enough to raise a
presumption that the occupation
of the land must have a lawful
origin.
Since the Defendants admitted in
their pleading and in the
evidence that the Plaintiffs had
been farming on the land before
1944, and they are still on the
land, and the Plaintiff denied
that they pay tribute to the
defendant’s family, this alone,
without more will entitle the
plaintiff’s family to a
declaration of title to the land
in dispute if it is not proved
that the Plaintiffs are
licensees.
Again since the Plaintiffs have
been in possession of the land
for a long time, to the
knowledge of the 1st
Defendants family, the 1st
Defendants family could not
lease the land to the 2nd
Defendant, without re-entering
the land from the Plaintiff’s
family, even if the land was for
the Odai Ntow family.
From exhibit ‘G’ the 1st
Defendants family and Nii Akpor
had a common boundary. The 1st
Defendant will have to establish
that boundary before the land
they counter claimed can be
declared in them. The Plaintiff
must also prove the boundaries
of the land that he claims for
his family before he can win.
This was the decision in Agyie
Osai and others vrs. Adjeifio
and others (2007-08) SC GLR 499
where the Supreme Court cited
with approval the Court of
Appeal decisions in Nyikporkle
vrs. Agbenotor (1987-88) 1 GLR
165 and Bedu vrs. Agbi (1972) 2
GLR 238, and held that “the
principle is that in an action
for declaration of title to
land, injunction and recovery of
possession the plaintiff must
establish by positive evidence
the identity and limits of the
land he claims ………….. They would
have helped their case if they
had called adjoining land owners
to clear doubts in their
evidence but they failed to do
so”.
The Defendant relied on
Judgements in which the
plaintiffs’ family was not a
party. They never called any
boundary owner to establish
their boundary. The Plaintiff
however mentioned his boundary
owners as Numo Sowah Goo Akpor
Adjetey Quaye Fio, Numo Kofi
Akpor and Numo Mensah Akpor,
these are at the East, then Rev.
Graham at the North, then the
Teshie Gbugla being Elias, Mama
Larbie and Numo Martei. Rev.
Graham was sued as the 12th
Defendant. The suit was
discontinued against the 12
Defendant, when the plan exhibit
C.W. 1A was tendered and it was
established that there was no
conflict between him and the
Plaintiff on the ground since
their site plan and that of the
plaintiff were not in conflict.
The 1st and 2nd
Defendants however failed and or
refused to submit their site
Plains for superimposition. Why
did the 1st and 2nd
Defendant fail and or refused to
submit their site plans to the
surveyor for super imposition?
Were they hiding something from
the Court?
PW.1, who is a representative of
the chief of Akporman, and the
son of Nii Sowah Go, gave
evidence that he knows the land
occupied by the Plaintiff, and
that it forms part of Akporman
land. That he also knew that it
was Nii Akpor who gave the land
to them, and that it had never
been the property of Odai Ntow
family. That Nii Akpo Mensah
also gave evidence as P.W.2 and
said he shares boundary with the
Plaintiffs family, as his father
and Numo Botchway Glover farmed
on the land and shared common
boundaries. Again P.W. 3 Elias
Maama Larbi gave evidence that
he shares boundary with the
Defendants and the Plaintiff and
that the boundary between him
and Plaintiff, Notme trees had
been planted.
The evidence of P.W.3 suggest
that the land that belongs to
his family originally belonged
to the Odai Notw family, but it
was given to Dedei, who was the
daughter of Odai Notw, P.W. 3
being a grandson of Dedei. This
may explain how the Plaintiff
came to share boundary with P.W
3’s family instead of the 1st
Defendant’s family, as was
mentioned exhibit ‘G’ the 1904
Judgement.
Even though the Plaintiffs
exhibit B and B1 is a statutory
declaration with a plan
attached, and would not
ordinarily have much probative
value attached to it, the
evidence of P.W. 1, P.W 2 and
P.W 3 supports the Plaintiffs
evidence that the land covered
by exhibit B1 is for the
Plaintiffs family. It is this
exhibit B and B1 which when the
Plaintiff went to the lands
commission to process; it was
reveled that it overlaps a
declaration made by the 1st
Defendant in favour of the 2nd
Defendant. The boundaries of
the Plaintiffs land were also
admitted in the Defendants
pleading.
According to the Plaintiff, when
a complaint was made to the
Original 1st
Defendant about the Registration
of the Plaintiffs land in 2nd
Defendants name, he the original
1st Defendant agreed
that the land he gave to the 2nd
Defendant had encroached on the
Plaintiffs land, and that
efforts should be made to
rectify the situation.
When the Plaintiff’s went back
to the 1st Defendant
after two weeks, the original 1st
Defendant asked them to see the
3rd Defendant to deal
with it. As they were finding it
difficult to reach the 3rd
Defendant, they contacted lawyer
B. B. Quaye who told them that
the 3rd Defendant was
his client so he would see to it
that the matter was settled.
The Plaintiffs and the 3rd
Defendant met at lawyer B.B.
Quaye’s office where the 3rd
Defendant is alleged to have
admitted that the land was not
for his family. That since he
was the one who did the
registration, he could get it
transferred into the Plaintiffs
name but that would involve a
lot of money but he has no money
to do that. The Plaintiffs then
agreed to give him five plots to
sell and use the proceeds to
effect the transfer.
The Defendants admitted in their
pleading that the Plaintiffs
gave the 3rd
Defendant 5 plots to sell, but
the proceeds from the sale of
the plots was to be used in
processing some land that the 1st
Defendant had agreed to give to
the Plaintiff and members of his
family on humanitarian grounds,
since they the Plaintiffs family
were farming on the land.
The evidence of the 1st
and 3rd Defendant on
this issue is a complete
departure from their pleading.
The 1st Defendant
said the Plaintiffs went to his
brother in the 1st
Defendant’s presence and
complained that the 2nd
Defendant had registered their
land in his name. Later he 1st
Defendant learnt from his
deceased brother, that the land
that the plaintiff complained
off was for the Odai Ntow family
but the Plaintiffs farmed on it
to the knowledge of the Odai
Ntow family, so he will call the
elders to decide on what to do
about the complaint.
The 3rd Defendant
denied the claim that 5 plots
were given to him, but admitted
that his father the original
defendant had a letter from
Lawyer B. B. Quaye, and gave
same to him. As a result they
met in B. B. Quaye’s office and
had discussions on the land.
Having considered the
defendants pleading on the
meeting in the office of Lawyer
B.B. Quaye, and the evidence of
the 1st and 3rd
Defendants on the said meeting,
I have no doubt in my mind that
lawyer B. B. Quaye who gave
evidence as P.W. 4’s evidence
about what took place in his
office is a truthful witness and
spoke the truth. That the 1st
and 3rd Defendants
evidence cannot be accepted as
the truth especially as it’s a
departure from their pleading as
was held in the case of Dam vrs.
J. K. Addo (1962) 2 GLR 200 and
Appiah vrs. Takyi (1982-83) part
1 GLR 1.
From the totality of the
evidence on the record, I am
satisfied that the Plaintiff has
been able to prove his case on
the balance of probabilities and
hold that the land in dispute is
part of Akporman land but not
Ashongman land. Judgement is
therefore entered for the
plaintiff as follows:
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Title to all that piece of
land covering an area of
30.01 acres or 12.14
hectares more or less and
situated and lying at
Akporman in the Ga District
of Greater Accra Region and
bounded with the property of
Numo Mensa Kofi Akpor of
Akporman in the East,
Reverend Joseph Eric Graham
to the North, the property
of Nii Akpor Mensah of
Abladjei and the lands of
Abladjei to the South and to
the West with Elias mama
Larbi and Numo Martei is
vested in Botchway Glover
family.
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It is ordered that
a)
The Plaintiff recovers
possession of any portion of the
land that has been registered in
the name of any of the
Defendants, and the 5(five)
plots of land given by the
Plaintiff’s family to the 3rd
Defendant.
b)
All land certificates issued in
respect of any land that falls
within the Plaintiffs land as
indicated on exhibit ‘B’, and
issued on the basis of a grant
by the 1st or 2nd
Defendant is revoked or
cancelled.
c)
The Defendants, their agents,
servants, privies etc. are
perpetually restrained form
interfering with the Plaintiffs’
families’ possession and quiet
enjoyment of the land the
subject matter of this dispute.
The Plaintiff claimed damages
for trespass. Trespass is an
invasion of ones right of
possession. The 1st
Defendant admits that he gave
part of the land to the 2nd
Defendant and others. The 2nd
Defendant has also given
portions of the land to others.
I therefore hold that the 1st,
2nd, and 3rd
Defendants have trespassed unto
the Plaintiffs land. The
Plaintiff did not however prove
the extent of the damage that
had been done to the family
except the refusal to process
their document due to the act of
the 1st and 2nd
Defendants. See Laryea vrs.
Oforiwa (1984-86) 2 GLR 410. I
therefore award the Plaintiff
damages of GH¢5,000.00.
The Defendants counter-claim is
dismissed.
The Plaintiff is awarded cost of
GH¢5,000.00.
Counsel:
Mr. Lessley Anim hold’s Mr.
George Ankamah Mensah’s brief
for 1st
Defendant.
Mr. Dubick Yakubu for Plaintiff.
(SGD.)MR. JUSTICE S.H. OCRAN
(Justice of the
High Court)
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