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JUDGMENT
1. By writ filed on the
14th of May 2007
amended by writ filed on 12th
July 2007 the Plaintiff claims
the following reliefs against
the Defendants.
“(a. Declaration of title
to all that piece or parcel of
land described in the schedule
to the statement of claim.
(b. Damages of
¢300,000,000.00 against the
Defendants jointly and severally
for interfering with Plaintiff’s
right of possession of the land.
(c. Perpetual injunction
restraining the Defendants,
their agents, assigns and
workmen from interfering or
dealing with Plaintiff’s land in
any manner detrimental to
Plaintiff’s interest”.
2. The factual grounds
for the Plaintiff’s claim have
been set out in the amended
statement of claim filed on 12th
July 2007 in which particulars
of the subject matter have been
described in schedules A, B and
C of the statement of claim.
3. By an order of court
dated 10th July 2007
one Nii Teiko Okai was joined as
a Co – Plaintiff to the suit and
subsequently filed a five
paragraphed Statement of Claim
on 27th July 2007.
Given the fact that the matters
in dispute in this suit
crucially evolved round matters
of traditional history and
possession, I shall in the
course of this judgment examine
the pleadings filed by the
parties and evidence adduced
with respect to traditional
history and possession in
arriving at a determination of
the claim of the Plaintiffs on
the one hand, and the defence,
and counterclaim of the
Defendants on the other.
4. The Defendants have
contested the Plaintiffs’ claims
and by an amended Statement of
Defence filed on 28th
March 2008 have set up a
counterclaim claiming against
the Plaintiffs.
“(1). Declaration of title
to all that piece or parcel of
land situate, lying and being at
Danchira in the Greater Accra
Region of the Republic of Ghana
and bounded on the North – West
by the Honi Stream measuring
10,200feet or less, on the North
East by Manhean, Ashalaja and
Afuama Lands measuring 51,700
feet more or less on the East by
Joma lands, Densu River and
Kwame Amu’s lands measuring
10,300feet on the South by
Banyesi Pond and
Amanfro/Domiabra lands,
17,500feet more or less and on
the South Western point by
Amanfro Lands measuring
38,535feet more or less
containing an approximate area
of 13,913 acres.
(2). Recovery
of possession.
(3). Specific
Damages for destroyed food
crops.
(4). General
Damages.
(5). Perpetual injunction
to restrain the Plaintiff either
by himself, his agents, workmen,
servants or privies or
whomsoever from entering upon
the said land or in anyway
whatsoever interfering with the
Defendants’ ownership of the
said land.
(6). Costs”.
5. PLAINTIFF’S CASE
(i). The Plaintiff’s case
is that it is an estate
development company which
obtained the respective parcels
situate at Danchira near Accra
described in schedules A, B and
C of the statement of claim from
Nii Teiko Okai (Co – Plaintiff
herein) who is the head and
lawful representative of the
Djan – Bi Amu family of Accra
and Danchira. The transaction
was evidenced by a deed of lease
dated 5th June 2001
(exhibits ‘A’, ‘B’ and ‘C’). The
Plaintiff alleged that after
entering into possession of the
subject matter and having
demarcated and set out roads
thereon, it took some
prospective clients to the land
whereupon the Defendants
attacked and prevented them from
entering the subject matter
threatening violence. Plaintiff
alleged that embarrassed and
aggrieved by the Defendants’
conduct it commenced the instant
action claiming the reliefs
endorsed on the writ as set out
in paragraphs 10(a) (b) and (c)
in the amended statement of
claim.
(ii). The Co – Plaintiff’s
case is merely supportive of the
Plaintiff’s claim to a large
extent but he alleged that the
interference with the
Plaintiff’s right amounts to
trespass. He restates
Plaintiff’s claim however that
the subject matter belongs to
the Nii Djan - Bi - Amu family
from time immemorial and refers
to judgments in support of his
assertion. Significantly the Co
– Plaintiff averred that some of
the Defendants though members of
the Djan - Bi Amu family have no
right to grant Danchira lands
same not being stool land.
6. THE DEFENDANTS’
CASE
The Defendants have
substantially denied the claim
by Plaintiff and Co – Plaintiff
and have inter alia alleged that
the Statutory Declaration
referred to by the Plaintiff
exhibit ‘G’ was tainted with
fraud. The Defendants assert
that Danchira lands subject
matter herein, belong to the 1st
Defendant’s family and together
with three other families
constitute a composite family of
four who jointly own the land.
Defendants referred to early
settlement on the subject matter
of one Nuumo Anyetei Akrama with
his brother who hailed from
Sawerpramano of the Asere
quarter of Accra through whom
subsequent heads said to be
warriors and hunters came to
found what is today referred to
as Danchira. The Defendants
claim that from time immemorial
the four composite families have
enjoyed uninterrupted and
undisturbed possession and
occupation of the Danchira lands
and have exercised exclusive
rights of possession and
ownership by farming and
granting portions to several
grantees. They claim that there
are several shrines situate on
various portions of the land all
of which are worshipped by the
Defendants and their grantees as
a testimony to their superior
right of ownership and
possession of the land.
7. ISSUES FOR
DETERMINATION
The issues for determination are
contained in the application for
directions filed on 6/8/2007 by
the Plaintiff and the notice of
additional issues filed on
29/4/08 by the Defendant. The
Plaintiff settled the following
issues for trial.
“(a). Whether or not the
Plaintiff is the beneficial
owner of the piece or parcel of
land described in the writ by
virtue of a conveyance dated 5th
June 2001 and registered and
stamped as No. AR/6822/2001 made
between Nii Teiko Okai of Accra
and Plaintiff
(b). Whether or not Nii
Teiko Okai duly made a grant of
the said land the subject matter
of the dispute to the Plaintiff
in collaboration with principal
members of the stool.
(c). Whether the
Defendants have trespassed (of)
on the land and purported to
grant portions thereof to other
persons.
(d). Whether or
not the Plaintiff is entitled to
its claims.
(e). Any further or other
issues raised by the pleadings
in the suit”.
The Defendants additional issues
are:
“(i). Whether or not the
Danchira lands are owned by the
four composite families namely
Sawerpramano, Kubeshishie,
Amanfo and Juabeng.
(ii). Whether
or not the Defendants are not
entitled to their counterclaim”.
8.
It would appear clearly from the
issues set down that except
issue (b) set down by the
Plaintiff which does not appear
to me to be an issue arising
from the pleadings nor
consistent with the pleading of
the Co – Plaintiff’s especially
paragraph 3 of the Co -
Plaintiff’s statement of claim,
the determination of the
remaining issues filed by the
parties would effectively
determine the dispute between
the Plaintiffs and the
Defendants.
9. DETERMINATION OF
ISSUES BY THE COURT
The issues to be determined in
this suit are both factual and
legal. The nature of the factual
issues from the pleadings of the
parties is traditional and
documentary. Before I proceed to
evaluate the evidence adduced by
the parties in support of the
statements of fact averred to in
their pleading, I shall allude
to the law on oral and
traditional evidence generally
and consider the burden of proof
of the parties as prescribed by
law in order to determine the
issues one way or the other
within the context of the
evidence adduced by the parties.
10. It is no derogation of
evidence that it is oral and on
traditional history. It is
admissible and can be relied
upon to discharge any onus to
the standard prescribed by the
law. The position of the law has
been stated in a number of cases
among others as follows:
“(i). If the evidence led
by both parties was traditional,
the best way of evaluating
traditional evidence is to test
the authority of the rival
versions against the background
of positive and recent
acts……………”
ACHORO &
ANOR VRS. AKANFELA & ANOR. (1996
– 97) SCGLR 209.
“(ii). Oral evidence is
admissible and can be relied
upon to discharge onus of proof
if it is supported by the
evidence of living people of
facts within their knowledge”
COMMISSIONER OF LAND VRS. ADAGUN
(1937) 3 WACA 206.
“(iii). Oral evidence of
tradition is admissible and can
be relied upon to discharge onus
of proof if it is supported by
the evidence of living people of
facts within their knowledge.
(IN RE ADJANCOTE ACQUISITION)
KLU VRS. AGYEMAN II 1982 – 83
GLR 212.
11. Given the above
guidelines set down by case law
what must the Plaintiff prove in
this suit and what is the nature
of the burden ought to be
discharged by either party in
order to succeed or fail in
their respective claims? I shall
set out the law on proof and
relate same to the evidence
adduced by the parties in order
to do an exhaustive evaluation
of the evidence within the
context of the burden on the
Plaintiffs and Defendants
respectively.
12. The general position
of the law has been captured in
the principle “He who asserts
must prove” This position of the
law has been restated by Kpegah
J. A. (as he then was) in the
case of ZABRAMA VRS. SEGBEDZI
(1991) 2 GLR 221 at 226 where he
stated as follows:
“…………….a person who makes an
averment or assertion, which is
denied by his opponent has a
burden to establish that his
averment or assertion is true.
And he does not discharge this
burden unless he leads
admissible and credible evidence
from which the fact or facts he
asserts can properly and safely
to inferred. The nature of each
averment or assertion determines
the degree and nature of the
burden”
13. To the same effect are
sections 11, 12 and 14 of the
Evidence Act 1975 Act 323
and the case of ABABIO VRS.
AKWASI III 1994 – 95 GBR
774 where the Supreme
Court reiterated the
position in ZABRAMA VRS.
SEGBEDZI and held that:
“A party whose pleadings raised
an issue essential to the
success of the case assumed the
burden of proving such issue.
The burden only shifted to the
Defendant when the Plaintiff has
adduced evidence to establish
the claim…….”
14. THE EVIDENCE
ADDUCED BY PLAINTIFF
As I have already observed, from
the pleadings of the parties in
this suit the onus of proof is
on both parties to prove their
claim and counterclaim. It is
therefore important to evaluate
the evidence in line with the
issues set down for
determination in order to arrive
at findings of fact. The
evidence in support of
Plaintiff’s claim was first
adduced through one Fredrick
Kofi Asare who described himself
as the Plaintiff’s Managing
Director. He tendered Exhibits
‘A’, ‘B’ and ‘C’ which were
conveyances executed in favour
of the Plaintiff company by the
Co – Plaintiff described in the
endorsement of claim as
registered instruments. His
testimony is that the Plaintiff
was in the process of extending
utility services to the subject
matter when he was violently
attacked by the Defendant.
15. Under cross – examination by
the Defendants’ counsel, the
witness admitted that when he
first entered the subject matter
he found plants
and cleared same but
denied that at the time of his
initial entry thereon, 3rd
to 5th Defendants
were in possession of same. The
witness denied that 3rd
to 5th Defendants had
cottages on the subject matter
and added that he did
not enquire from the 3rd
to 5th Defendants
their interest in the
subject matter. He emphasized
that the subject of this
suit belonged to the
Djan - Bi Amu family by virtue
of judgments they
had obtained in their favour.
16. Two issues arise from
the evidence of Plaintiff’s
Managing Director (PW1). Firstly
the claim that Exhibits ‘A’, ‘B’
and ‘C’ are registered
instruments is not supported by
the evidence. Secondly, his
evidence is essentially
documentary and based on recent
conveyances made in the
company’s favour by the Co –
Plaintiff. Paragraph 2 of the
recital of Exhibits ‘A’, ‘B’ and
‘C’ all refer to a Statutory
Declaration of one John Ayiku
Mensah the then head and lawful
representative of Djanbi- Amu
family of Accra and Danchira. In
my view all the deeds of leases
Exhibits ‘A’, ‘B’ and ‘C’ dated
5/6/2001 and 10/6/2001
respectively as well as the
Statutory Declaration are
documents of recent production
and existence and donot by
themselves provide undisputed
evidence of the ownership of the
Djanbi Amu Family of the subject
matter in dispute. The content
of traditional history in
Exhibit ‘G’ are matters which
have to be supported by oral
evidence in accordance with the
standards laid down by case law.
The pleading and evidence of the
Co – Plaintiff therefore became
crucial in the determination of
the issues set down for trial if
a decision will be made in the
Plaintiff’s favour.
17. The criteria set out
by the courts through case law
are:
(i). The
facts in recent years as
established by the evidence
(ii). Recent
Acts
(iii).
Possession.
(iv). Accepted
facts.
18. The principle of facts
in recent years supporting a
party’s case was established in
the case of ADWUBENG VRS. DOMFEH
(1996 – 97) SCGLR 660 where the
Supreme Court held at holding 4
that “Where it is difficult,
on the basis of traditional
evidence to make a finding as to
which of the ancestors of the
parties was first to settle on
the disputed land, the
recommended approach was to have
recourse to facts in recent
years as established by the
evidence” …………………. “A party can
succeed even where that party’s
traditional evidence is rejected
if only, the facts in recent
years support his case”.
19. In RE –
ADJANCOTE ACQUISITION KLU VRS.
AGYEMAN II (1982 – 83) GLRD 84
which disaffirmed the principle
in KODILINYE VRS. ODU (1935) 2
WACA 336 the then Court of
Appeal held as follows:
“The most satisfactory method of
testing traditional history is
by examining it in the light of
such more recent facts as can be
established by evidence in order
to establish which of the two
conflicting statements of
tradition is more probably
correct”.
20. The above case
affirmed the case of ADJEIBI –
KOJO VRS. BONSIE & ANOR. 3 WALR
257 PC which held per Lord
Denning at page 260 that:
“The best way is to test the
traditional history by reference
to facts in recent years as
established by evidence and by
seeing which of the two
competing histories is the most
probable”.
21. The authorities
referred to also support the
ingredients of recent acts and
possession. Indeed IN RE –
ADJANCOTE ACQUISITIONS KLU VRS.
AGYEMAN II (Supra) affirmed the
earlier principle in SUMMEY VRS.
YOHUNO (1962) 1 GLR 160 at 167
which held with respect to
possession inter alia that:
“In a claim for title to land
where none was able to show
title because of want of
evidence or that the evidence is
confusing and conflicting, the
safest guide is to determine the
rights of the parties by
reference to possession”
22. With respect to the
last ingredient of accepted
facts In RE – ADJANCOTE
ACQUISITION KLU VRS. AGYEMAN
(Supra) affirmed the earlier
principle in the case of OBENG
VRS. POKU (1965) GLR 167 which
held that:
“Where the claims of the parties
are based on traditional history
which conflicted with each other
the best way of resolving the
conflict is by paying due regard
to the accepted facts in the
case which are not in dispute
and the version supported by the
accepted facts was the most
probable”.
23. In recent times the
Supreme Court held in the case
of ADJEI VRS. ACQUAH (1991) 1
GLR 13 on the issue of
determining conflicting
traditional evidence on
possession and ownership as
follows:
“The law was that although
traditional evidence had a part
to play in actions for
declaration of title, a
favourable finding on its
evidence was not necessarily
essential to the case of either
of the party seeking the
declaration. What the
authorities required was that
traditional evidence had to be
weighed along with recent facts
to see which of the two rival
stories appeared more probable.
Facts established by matters and
events within living memory
especially evidence of acts of
exercise of ownership and
possession must take precedence
over mere traditional evidence.
24. In the case of
HILODJIE VRS. GEORGE (2005 –
2006) SCGLR 974 Wood
JSC (as she then was) referred
to the same principles
as in the above case. I
shall apply these principles to
the case of either party in the
instant suit as they
apply to by the pleadings and
evidence adduced at
the trial.
25. I have earlier in this
judgment made references to the
Statement of Claim of the
Plaintiff and Co – Plaintiff
where I find that no facts of
traditional history on the
acquisition of the subject
matter has been pleaded except
the recitals contained in the
Statutory Declaration made by
one John Ayiku Mensah tendered
in evidence by the Plaintiff as
Exhibit ‘G’
26. During cross –
examination of the Co –
Plaintiff on the various
exhibits including historical
judgments he had tendered the
following evidence was elicited.
“Q. Can you
tell the original size of Kwame
Amu’s land?
A. 13, 000sq
acres.
Q. Look at the site plan
attached to your statutory
declaration Exhibit ‘G’ it shows
that your 13,000 acres share
boundary with all these villages
(i.e., Manhean, Ashallaja,
Afuaman and Amanfo).
A. Yes
because they got the land from
Kwame Amu.
Q. Are you saying Kwame
Amu gave out all these lands as
gifts?
A. Yes, it
was for them to cultivate.
Q. Who did
Kwame Amu give Ashallaja lands
to?
A. I don’t
know. They all come to pay
tolls.
Q. Who did
Kwame Amu give Afuaman lands to?
A. I don’t
know.
Q. Who did
Kwame Amu give Joma lands to?
A. I don’t
know. He gave them to a group of
people.
Q. What about
Domiabra?
A. I don’t
know.
Q. While
referring to Exhibit ‘G’ the
witness was asked
Do you see Kwame Amu
written there as boundary owner
of Danchira lands?
A. Yes.
Q. So according to your
site plan Kwame Amu shares
boundary with Danchira lands?
A. That is
so”.
27. Relative to the
respective burdens of the
parties at law I shall
evaluate the evidence
adduced by the Defendants and
compare same with the
evidence adduced by the
Plaintiff and Co – Plaintiff
with the view to arriving at
my findings of facts.
28. In paragraph 2 of
Plaintiff’s statement of claim
the Plaintiff had averred as
follows:
“(2). Plaintiff obtained
piece or parcels of land situate
and being at Danchira a suburb
of Accra from Nii Teiko Okai
Head of family with the Djan –
Bi Amu family of Danchira (with)
consent of his elders and was
granted documents to cover the
said lands which he has
registered and which is
described in the schedule
below”.
29. From the evidence
adduced through the Plaintiff
and Co – Plaintiff during
evidence in chief and cross
examination three crucial
factual situations were
established. They are that:
(i). The claim by the
Plaintiff that exhibits ‘A’, ‘B’
and ‘C’ being the leases created
between the Co – Plaintiff and
the Plaintiff are registered
documents as pleaded by the
Plaintiff in his statement of
claim is incorrect within the
meaning of the provisions of the
Land Registry Act 1962 (Act
122).
(ii). The Co – Plaintiff
having admitted under cross –
examination that by the site
plan attached to the Statutory
Declaration Exhibit ‘G’ (the
only evidence relating to the
traditional history of the Co –
Plaintiff’s ancestral claim to
the subject matter) the land at
Danchira shares boundary with
the area referred to as Kwame
Amu, the Co – Plaintiff has
impeached the averment of the
Plaintiff in paragraph 2 of the
Plaintiff’s Statement of Claim
and the probative value of
Exhibit ‘G’ same being clearly
inconsistent with respect to
ancestral claim to ownership of
Danchira lands by the Co –
Plaintiff.
(iii). The effect of the Co
– Plaintiffs admission during
cross – examination that the
site plan attached to Exhibit
‘G’ clearly shows that Kwame Amu
ancestral holding shares
boundary with Danchira has
created a situation whereby the
evidence adduced in support of
the case of the Plaintiffs and
Co – Plaintiff amounts to a
departure from their pleadings
there being no facts pleaded in
the pleadings about the founding
of Danchira by Kwame Amu and the
said grant of Kwame Amu boundary
lands of Afuaman, Ashallaja,
Joma and Domiabra to those in
possession as the Co – Plaintiff
has stated during cross
examination. I shall examine the
legal effect of the three
situations in the course of this
judgment.
30. Under further cross
examination by the Defendants’
counsel the following exchanges
were recorded between
Defendants’ counsel and Co –
Plaintiff
“Q. I put it to you
that Danchira lands belong to
the composite families?
A. My Lord I
disagree.
Q. And that Numo Anyetei
Akramah and Numo Osoro were the
first settlers of Danchira land
in the 16th century.
A. No My
Lord.
Q. They were
followed by Numo Larkotey
A. My Lord I
disagree
Q. Then came Nii Ayitey
Boafo from Juabeng who follows
Numo Lartei
A. My Lord
that is not correct
Q. And Numo
Kobina Lartei followed.
A. My Lord to
the best of my knowledge it is
never true”.
31. Since the Co –
Plaintiff chose to deny every
statement of fact put to him or
suggested to him without
offering any alternative version
what is true then? The effect of
the Co – Plaintiff’s denials
during cross examination without
first stating the facts of his
own case in his pleadings nor
reciting historical facts in
support of the Djan Bi – Amu
family’s claim of ownership of
Danchira lands is that the court
was not offered an alternative
version of traditional evidence
of the subject matter in order
to subject same to the test
earlier set out in this
judgment.
32. The evidence of the
Plaintiff and Co – Plaintiff
therefore rested solely on the
historical recitals contained in
Exhibit ‘G’ without more. In my
view, merely answering during
cross - examination that Kwame
Amu said to be the originator of
Co – Plaintiff’s family founded
Danchira because he was
responsible for planting
“Weweti” trees cannot be
sufficient evidence to
substantive a claim of ownership
of land by traditional evidence
without demonstrating overt acts
of possession and recent acts of
ownership comparatively stronger
than the version of Co –
Plaintiff’s opponents in this
suit.
33. By a process of
subpoena ‘PW3’ one Beatrice Oye
Bempong the registrar of the Ga
Traditional Council gave
evidence for the Plaintiff and
Co – Plaintiff. She tendered
Exhibit ‘H’ which is a judgment
of the judicial committee of the
Ga Traditional Council of 20th
January 1988. Her evidence under
cross examination was that from
colonial times there has been
kept a Chief’s list which
indicates the particular family
quarter a chief hails from but
could not tell the position with
respect to Danchira.
34. With respect to the
evidence of ‘PW4’ one Nii Armah
Juabeng he testified that he is
a ‘Wulomo’ of Juabeng and lives
at Danchira. His testimony was
that the Nii Djan - Bi - Amu
Weku or family is part of
Juabeng. The witness testified
that there are several ‘gods’
located on the Danchira lands
and that it is the Djan - Bi Amu
family which oversees the
performance of rituals for the
gods. The witness denied knowing
the 1st Defendant but
he identified the other
Defendants in court. He
testified that Danchira is made
up of several quarters all of
which are smaller units of a
larger Djan - Bi Amu family of
which the 2nd to 5th
Defendants are not members. He
further testified that Danchira
was founded by Nii Amu but could
not tell when it was founded.
35. When ‘PW4’ was cross
examined by Defendants’ counsel
he admitted that he is also
known as Armah Gordon. He denied
the assertion by the Defendants
that Danchira’s traditional
offices are shared among 4
composite families. In the
course of cross – examination
however, ‘PW4’ admitted knowing
one Nii Tettey Okon Aryee whom
he said hails from Juabeng but
denied that the said person is
the ‘Dzasetse’ of Danchira. When
the witness was confronted with
photographs Exhibit ‘1’ and ‘2’
he denied that the ceremony
captured by Exhibit 2 was the
installation of Nii Tettey Okon
Aryee. Asked whether or not Nii
Lartei is the Danchira ‘Wulomo’
the witness denied same. When
the witness was confronted with
Exhibit ‘3’ a picture in which
the witness was pouring drink to
Nii Lartei at a traditional
ceremony the witness’s reaction
was that he could not remember
the said ceremony was in
connection with any customary
office in Danchira. The witness
denied a suggestion to him that
one Captain Lolo attempted to
make him a ‘Wulomo’ but he
admitted that upon a complaint
by Nii Lartei he and some others
were fined customarily by ‘Nai
Wulomo’ for an attempt to usurp
the office of Nii Lartei as
Danchira ‘Wulomo’. Significantly
the witness testified under
cross examination that he knew
the father of the 4th
and 5th Defendants
who was granted lands by the
elders of Juabeng for the
establishment of ‘Ocloo’ farms.
36. In my view, it is
clear from the pleadings that
the Plaintiff and Co – Plaintiff
stated no facts at all about the
traditional history of the Co –
Plaintiff’s claim to the subject
matter. From the evidence except
in answers to questions under
cross – examination by
Defendants’ counsel, no such
traditional history was made
available by the Plaintiffs and
their witnesses, save the
denials and the general averment
contained in paragraphs 8 of the
reply to statement of defence
and Defence to counterclaim
filed on behalf of the Co –
Plaintiff on 15/4/2008.
37. It is therefore safe
to assume that the case of the
Plaintiff and Co – Plaintiff
rested on the traditional
evidence of recitals contained
in Exhibit ‘G’ the Statutory
Declaration as well as the Co –
Plaintiff’s answers in cross –
examination referring to the
fact that it was his ancestor
Kwame Amu who planted ‘Weweti’
trees and made grants of several
lands including Danchira to
grantees, a situation I have
earlier said is insufficient in
the absence of recent acts of
possession or accepted facts to
substantive the claim to
ownership of the subject matter.
38. Indeed in paragraph 15
of the said reply to statement
of Defence and Defence to
counterclaim it was averred by
the Co – Plaintiff as follows:
“15. Paragraph 18 of the
Statement of Defence is denied
in its entirety and in reply Co
– Plaintiff will put Defendant
to (suit) strict proof of the
allegations made therein”.
In Defendants’ paragraph 18 it
had been averred as follows:
(“18). The Defendants state
that the said Statutory
Declaration is tainted with
fraud”.
PARTICULARS
(i). That
the said Statutory Declaration
executed by John Ayiku Mensah
on 2nd February 1976
on behalf of Djan - Bi Amu
family contained a
list of successors and
forerunners who did
not have any blood relation with
and certainly did not belong
to Djan - Bi Amu
family at all but rather
constituted the ancestors of
Amanfo family of Danchira (i.e.
one of the four (4)
composite families of Danchira).
(ii). “That
the Heading of the site plan
attached to the
Statutory Declaration
states:
“Djan – Bi Amu
family lands situate at Danchira
– West of Weija -Accra.
Meaning that the
land referred to is not the
entire Danchira
lands but was situate within
Danchira lands whereas the
actual site plan of
the land fraudulently declared
comprises the whole
of entire Danchira lands”.
(iii). That the boundaries
indicated on the site plan are
very different from
those statutorily declared on
the indenture”.
39.
It is this averment of the
Defendants containing the
allegation of fraud that Co
– Plaintiff’s paragraph 15 of
“Reply to Statement of Defence
and Defence to counterclaim was
intended to traverse.
40. While I find nothing
of value to attach to the
evidence of ‘PW3’ and ‘PW4’ in
terms of the pleadings of the
Plaintiff and Co – Plaintiff as
well as in the determination of
the issues set down in this
suit, I also donot think that
the Defendants discharged their
burden of producing evidence to
substantiate the allegations
contained in paragraphs
18(i),(ii),(iii) of the Amended
Statement of Defence same having
been denied by the Co –
Plaintiff.
41. There is a degree of
proof required when crime is
alleged in a civil action. In
HILODJIE & ANOR VRS. GEORGE
(2005 – 2006) SCGLR 974 Wood JSC
(as she then was) held at page
990 that:
“In civil litigation, the rules
of evidence require a rather
higher degree of proof, i.e.
proof beyond reasonable doubt
whenever a crime, which is
directly in issue to the main
dispute is alleged”.
From my examination of the
evidence adduced by the
Defendants, I donot think the
Defendants have discharged their
burden of proving the allegation
of fraud with respect to the
Statutory Declaration Exhibit
‘G’ and its contents.
42. Having so found, what
is the probative value and legal
effect of Exhibit ‘G’ the
Statutory Declaration which is a
crucial material for the case of
the Plaintiff and Co –
Plaintiff?
In the case of ADJETEY AGBOSU &
ORS. VRS. KOTEY & ORS. also
referred to as In RE: ASHALLEY
BOTWE LANDS (2003 – 2004) SCGLR
420 WOOD JSC (as she the was)
said of Statutory Declarations
in Holding 7 as follows:
“Generally Statutory
Declarations per se, were self
serving and of no probative
value, where the facts as in the
instant case had been challenged
or disputed. In any event, a
Statutory Declaration was not a
registered document under the
Land Registry Act 1962 (Act 122)
nor was it a deed of conveyance
purporting to create nor convey
an interest in land. DONKOR VRS.
ALHASSAN (1987 – 88) 2 GLR 253
CA and AMUZU VRS. OKLIKAH (1998
– 99) SCGLR 141 cited ……………..”
Under section 2 of the Statutory
Declaration Act 1971 (Act 389) a
person wishing to depose of any
fact for any purpose may do so
by means of statutory
declaration, provided it does
not relate to any proceedings,
application or other matter
commenced in any court or
referable thereto or where under
the provisions of any enactment
an affidavit is authorized to be
sworn”.
43. What this means is
that a Statutory Declaration by
its very nature is a self
serving document which cannot by
itself form the basis of
probative evidence in a legal
proceeding especially where the
truth of the contents are
challenged. What the Plaintiff
and Co – Plaintiff in particular
needed to do was to have adduced
oral evidence to support and
substantiate the recitals in the
Statutory Declaration Exhibit
‘G’. In that respect, the
Plaintiff and Co – Plaintiff
failed and Exhibit ‘G’ not being
a document which has created or
conveyed an interest in land, I
am unable to construe the
recitals therein as evidence of
traditional history of the
subject matter put forth by the
Plaintiff and Co – Plaintiff in
support of their case. It leaves
the case of the Plaintiff and Co
– Plaintiff weak, unreliable and
unconvincing having already
found that the evidence of ‘PW3’
and ‘PW4’ added no value at all
in substantiating the claims of
the Plaintiff and Co – Plaintiff
as established by their
pleadings and evidence.
44. I shall now proceed to
consider the Defendants’ case in
terms of the defence they have
put up to the Plaintiffs’ claims
and the counterclaim set up
against the Plaintiff. The
position of the Defendants has
been very appropriately captured
in the words of BROBBEY JSC in
the case of In RE ASHALLEY BOTWE
LANDS (supra). There he said:
“The effect of sections 11(1)
and 14 and similar sections in
the Evidence Decree 1975 may be
described as follows: A litigant
who is a Defendant in a civil
case does not need to prove
anything. The Plaintiff who took
the Defendant to court has to
prove what he claims he is
entitled to from the Defendant.
At the same time, if the court
has to make a determination of a
fact or of an issue, and that
determination depends on the
evaluation of facts and evidence
the Defendant must realize that
the determination cannot be made
on nothing. If the Defendant
desires a determination to be
made in his favour, then he has
a duty to help his own course or
case by adducing before the
court such facts or evidence
that will induce the
determination to be made in his
favour…………..”
45. Let us examine the
evidence adduced by and for the
Defendants in this suit. I shall
first examine and evaluate the
evidence adduced through ‘DW1’,
‘DW2’, ‘DW3’, ‘DW4’ and ‘DW5’
all of whom are said to be
farmers and grantees of the land
from the Defendants ancestors
and have continued to atone
tenant through payment of
customary rent to the respective
family heads claiming through,
for or on behalf of the 1st
Defendant’s composite Family.
The totality of the evidence of
the witnesses established a case
of recent possession and recent
acts in support of the defence
and counterclaim of the
Defendants. All the witnesses
denied knowledge of the
Plaintiffs Djan - Bi Amu family
as owners or overlords of the
subject matter. While ‘DW1’s
evidence is that his late father
acquired the land on which he
cultivates cassava, pineapple
groundnut and sugar from one
Koblah Bosomfo Sawerpramano in
1947 and has continued to
acknowledge the ownership of the
land in Koblah Bosomfo and his
descendants. ‘DW2’ testified
that his father had acquired the
parcel which he still possesses
in 1936 from his grantors whom
he claims comprise families from
Asere quarters of Accra. He
further testified that he pays
customary allegiance and rent to
one Osofo Tawiah and during the
Homowo festival he donates
fowls, beans and maize to his
grantor. He denied knowledge of
the Djan Bi – Amu family.
46. ‘DW3’ testified that
his brother brought him to
Danchira a year before the 1966
military coup. His testimony is
that he cultivates 12 acres
which he acquired from one
Nanatse and has never heard of
Djan - Bi Amu. With respect to
‘DW4’ he testified that he
acquired his parcel in 1972 and
has paid customary rent at the
chief’s palace since then. ‘DW5’
testified that his village known
as Akorlie Kope was named after
his father who obtained a grant
from one Ayite Boafo some time
before 1947. The witness also
denied any knowledge of the Djan
Bi Amu family.
47. After examining the
evidence of ‘DW1’ to ‘DW5’, I am
of the view that sufficient acts
of possession and recent acts
have been established,
consistent with the principles
set out in the evaluation of
traditional evidence where there
are rival versions.
48. Though as I have
earlier observed no substantial
rival evidence of traditional
history has been put forth by
the Plaintiff, it is also
significant to mention that
nowhere in the cross examination
of the Defendants’ witnesses did
Plaintiffs’ counsel succeed in
contradicting their evidence or
discrediting the said witnesses.
In my view, the evidence of the
said witnesses with respect to
their possessory rights and of
their grantors they have
acknowledged, since the years of
the acquisition of their
respective parcels of land, is
more probably true as no other
contradicting evidence of
possession has been placed
before me either by the
Plaintiffs and their witnesses
nor was the evidence of
possession by Defendants’
grantees been discredited
through cross examination.
49. THE EVIDENCE OF
‘DW6’ ‘DW7’, ‘DW8’, ‘DW9’ AND
‘DW10’.
The evidence of ‘DW6’ the
representative of the Chief of
Afuaman who are boundary owners
with Danchira corroborated the
assertion of the Defendants with
respect to the fact that
Danchira lands are owned by four
composite families. His
testimony is that he remembers
Kubeshishi, Amanfo and
Sawerpramano as the families who
perform custom but could not
remember the last of them. He
further testified that the
people of Danchira have informed
them about the chief of Danchira
whom he referred to as Nii
Ayekai presumably 1st
Defendant herein. Under cross
examination by Plaintiffs’
counsel, he denied that the
customary rites performed by the
families was a recent
development adding that it
started about 23 years ago.
50. ‘DW7’ is one Owusu
Kwarteng Ackom who testified
that one E. A. Ackom had
acquired a parcel of land at
Danchira between 1977 and 1978
for a period of 99 years and has
been in possession since then
cultivating mango. When counsel
for the Plaintiff put it to him
that Danchira lands belong to
Nii Djan - Bi Amu family the
witness denied same and no
further examination was pursued
either to discredit the witness
or to impeach the evidence of
possession and acquisition from
the then chief of Danchira who
from the evidence is not a
descendant of Nii Djan - Bi Amu
family but of the 1st
Defendant’s composite family.
51. The evidence of ‘DW8’
is that he has lived on a parcel
of Danchira lands for 30 years
and has been paying customary
rent to one Akoshiatse after
whose death he now pays to one
Nii George and Kwesi Bonsu to be
forwarded to the grantor
families. He admitted in
evidence that he knows Nii
Ayekai the 1st
Defendant. Under cross
examination by Plaintiffs’
counsel ‘DW8’ denied knowing
Armah Gordon ‘PW4’ but was
emphatic that his original
grantor was Akoshiatse. When it
was suggested to the witness
that the persons he had referred
to in his evidence - in - chief
were not the true owners of the
land his answer was that he
could not testify to that but
added that he had never heard of
the name Nii Djan – Bi Amu.
52. Once again as in the
case of all the other witnesses
whose evidence I have summarized
above, Plaintiffs’ counsel could
neither discredit their evidence
nor the credibility of the
witnesses. Nor was he through
cross examination able to put
across Plaintiffs’ case in a
manner that this court will be
persuaded into believing that
the Plaintiffs’ version of the
facts of ownership and
possession as could be deduced
from the evidence is more
probably true than that of the
Defendants.
53. The evidence of ‘DW9’
is not materially different from
the evidence of ‘DW6’ Asafoatse
Amartey of Afuaman. As was the
evidence of ‘DW6’ aforesaid,
‘DW9’ is the acting Chief of
Ngleshie Amanfro. He testified
that Ngleshie Amanfro shares
boundaries with Danchira. He
denied knowledge of the Nii Djan
- Bi Amu family but confirmed
that he knows Amanfo, Juabeng
Kuseshishi and Sawerpramano as
the families who own Danchira
lands adding that the Chief of
Danchira hails from one of the
families aforementioned. Under
cross examination, ‘DW9’
testified that as acting chief
of Ngleshie Amanfro they have
held several meetings with the 1st
Defendant on boundary
demarcation issues. He denied
any knowledge of Nii Djan - Bi
Amu family in relation to
Danchira lands and stated that
he had never met members of the
Nii Djan – Bi Amu family for the
19 years he had been chief of
Ngleshie Amanfro.
54. The evidence of the
witness from the Public Records
and Achives Administration
Department was simply to prove
that from historical records
Danchira had been under Asere
quarter of the Defendants’ claim
and not Otublohum of the
Plaintiffs’ claim.
55. I shall now deal with
the evidence adduced through the
principal parties on the
Defendants’ side i.e. the
evidence of 1st
Defendants Attorney and that of
4th Defendant. The 1st
Defendant’s Attorney’s evidence
contained incidents of
traditional history of about
300years when the ancestral
settlers representing the four
composite families referred to
in the Amended Statement of
Defence settled on the subject
matter as hunters and farmers.
The witness testified on acts of
possession from living memory
and of recent acts including the
various ‘gods’ and shrines on
the land for whom annual rituals
are performed by the Danchira
Wolomo Numo Lartei whose office
and functions had been
established through the evidence
elicited during the cross
examination of Armah Gordon.
‘PW4’.
56. In further testimony
the witness testified that he
had never known the Co –
Plaintiff until the proceedings
in the instant suit denying that
Danchira was founded by one
Kwame Amu the Co – Plaintiff’s
ancestor. He admitted knowing
‘PW4’ but denied the claim by
‘PW4 of being a Wulomo
reiterating that Danchira is not
under the Otublohum Stool but
Asere Stool.
57. Under cross
examination by Plaintiffs’
counsel the witness confirmed
that 4th and 5th
Defendants were lessees of the 1st
Defendant’s family and denied
that the 1st
Defendant’s families are
settlers on the subject matter.
58. During further cross
examination of 1st
Defendant’s attorney the
following evidence was elicited.
“Q. From time immemorial
you and your forbears have
recognized the Djan – Bi Amu
family as owners of the land?
A. It is not
so.
Q. You have been paying
customary rent to the Nii Djan –
Bi Amu family till recently.
A. It is not
so.
Q. It is only in the
1980’s that you stopped paying
and asserted your claim?
A. It is not
rue”.
59. Now, when the
plaintiffs’ counsel confronted
the 1st Defendant’s
attorney with questions
suggesting the conduct of the 1st
Defendants’ families in the
past, it is not sufficient for
counsel to have accepted the
answer denying the suggestions
which required facts and
evidence to substantiate. If it
is true the 1st
Defendants families have in the
past acknowledged the position
of the Djan - Bi Amu family as
their overlords and had paid
customary rent to them: What was
paid? who paid? how much was
paid? or the value thereof? and
who was the recipient? For the
cross examination of the witness
to have any probative effect,
Plaintiffs’ counsel ought to
have put across the Co –
Plaintiffs knowledge of the
facts and evidence which would
have been within the peculiar
knowledge of the Co – Plaintiff
his client. Having failed to do
so as in the case of all the
other witnesses for the
Defendants the evidence of the 1st
Defendants attorney stood
undiscredited and same being
consistent with the pleadings,
it is in my view more preferable
and more probably true in
establishing a case in defence
to Plaintiffs’ claim and partly
in proof of the counterclaim set
up.
60. THE EVIDENCE OF 4TH
DEFENDANT TOGBE OKRU (OCLOO)
The 4th Defendant
testified that he is the
proprietor of Ocloo Farms which
is a commercial organization
with emphasis in farming. The 4th
Defendants testimony is that the
farm was set up by his late
father having obtained a lease
from Nii Ayite Boafo, Odartey
Lamptey and Oko Teiko. The
document covering the grant was
tendered in evidence as Exhibit
‘7’. The evidence was that upon
the death of the original
grantee i.e. 4th and
5th Defendants’
father the land comprising a
total 640 acres was divided into
two partly, for crop farming and
for animal husbandry.
61. There is
uncontradicted evidence that the
4th and 5th
Defendants have been in
uninterrupted possession until
the acts of the Plaintiff
company whose Managing
Director it was alleged reported
‘DW4’ to the police claiming
ownership of about half of the
area in the possession and use
of 4th and
5th
Defendants as farmers. The 4th
Defendant tendered
certificates of awards he
had won during Farmers Day
celebrations Exhibits
8, 9 and 10.
62. During cross
examination, counsel for the
Plaintiffs did not contest the
witness’s assertion that he and
his father had been in
possession since their grant in
1974 but put it to the witness
that the rightful persons to
grant any portion of the subject
matter is the Nii Djan - Bi
family of Otublohum which the 4th
Defendant denied asserting
rather vehemently that he knows
his grantors. He further
answered under cross examination
that he has lived at Danchira
where the subject matter is
situate, for about 52 years and
knows only the four families
which compositely constitute the
grantors of the farmland.
63. In his written
submission learned counsel for
the Plaintiffs has drawn my
attention to the fact that the 1st
Defendants claims to have
granted land to several people
is not supported by a single
document. With all due respect
to Plaintiffs’ counsel, that
point has been totally
misconceived. There is
overwhelming evidence from
‘DW1’, ‘DW2’, ‘DW3’, ‘DW4’ and
‘DW5’ that they are customary
grantees of farmland from 1st
Defendant’s family as customary
grantors. In the case of BOATENG
VRS. DWINFOUR (1979) GLR 360 it
was held that customary tenancy
relates to only farmlands as is
the case with ‘DW1’ to ‘DW5’.
64. In BROWN VRS.
QUARSHIGAH (2003 – 2004) SCGLR
930 it was held by the Supreme
Court in Holding (2) that
“Customary law knew no writing
and therefore a customary law
grant could not be registered”
What this means is that the
absence of documentation
notwithstanding, the customary
grants made by the 1st
Defendant’s respective families
to tenant farmers are valid and
cognizable by law and cannot be
impeached on the ground only
that the transactions were not
documented.
65. I have earlier in this
judgment set out the principles
developed through case law
guiding the evaluation of
traditional evidence especially
where there are two competing
versions. As I have found
already, the pleadings of
Plaintiff and in particular the
Co – Plaintiff contain no facts
on which traditional evidence
could be led save the historical
recitals contained in Exhibit
‘G’ the Statutory Declaration of
Co – Plaintiff’s forbearer one
John Ayiku Mensah and answers to
questions under cross –
examination by the Co –
Plaintiff, which I had found to
be insufficient and unconvincing
to establish a case based on
reliable traditional evidence.
66. I find however that
the traditional evidence adduced
through the 1st
Defendant’s attorney is not only
consistent with their pleadings
but stood unchallenged and
undiscredited by cross
examination.
67. In my view therefore,
the evidence of facts in recent
years and recent facts adduced
by the Defendants is
corroborated by the acts of
undisputed possession by ‘DW1’,
‘DW2’, ‘DW3’, ‘DW4’, ‘DW5’ and
the 4th and 5th
Defendants all of whom are
grantees of 1st
Defendant whose possession had
never been challenged by the Co
– Plaintiff’s family for a
period of at least more than 20
years in the least of
situations.
68. In HILODJIE & ANOR.
VRS. GEORGE (supra) the
principle was inter alia stated
as follows:
“The clearly discernible
principle is that in case of
this nature the most
satisfactory contemporary facts
that a court should look out for
are undisturbed overt acts of
ownership or possession
exercised over the disputed
subject matter”.
69. It is on the strength
of the authorities as applied to
the totality of evidence adduced
by the Plaintiff and Co –
Plaintiff that I found the
evidence as weak, unconvincing
and unreliable. Having already
found that the evidence adduced
by the Defendants is not only
consistent with their pleadings
and principles of law on the
subject, but same stood
unimpeached and their witnesses
undiscredited, I shall resolve
issue (i) set down for
determination in the Plaintiff’s
application for directions in
favour of the Defendants and
hold that the Plaintiff cannot
be a true beneficial owner of
the piece or parcel of land
described in the writ not having
obtained his grant from the 1st
Defendant’s composite families.
70. In consequence, while
issue two of the application for
directions became completely
inconsistent with the pleadings
and the issues arising by the
reference to “principal members
of the stool” in its
formulation, I will for the
avoidance of doubt hold that
from the evidence adduced at the
trial, neither Nii Teiko Okine
nor any members of his family
have the power to grant any
portion of the subject matter to
the Plaintiff or any other
person.
71. Having found that the
grant made to the 4th
and 5th Defendants
were made by the rightful owners
and they having been in
uninterrupted possession of
their portion of the subject
matter, I hold that the 4th
and 5th Defendants or
any other person claiming
through the 1st
Defendant’s composite families
are not liable for trespass as
alleged.
72. As established by the
evidence, I hold that Danchira
lands are owned by the four
composite families of
Sawerpramano, Kubeshishie,
Amanfo and Juabeng.
73. Consequent upon the
above findings I hold that the
Plaintiff’s entire claim fails
and same is accordingly
dismissed.
74. Let me now deal with
the Defendants’ counterclaim.
The law is trite that in a
counterclaim the Defendant
assumes the position of a
Plaintiff in proof of the
counterclaim and no lesser
standard is required of the
Defendant than the standard of
proof in civil cases as if the
Defendant were a Plaintiff.
75. The Defendants have
set up a counterclaim for
declaration of title in terms of
relief (1) endorsed in the
counterclaim. The area of the
land for which a declaration is
sought has been described only
by the endorsement of the relief
in the counterclaim but no site
plan had been tendered during
the trial in support of the
Defendants’ claim for
declaration of title to enable
the court grant the relief in
exact term taking into
consideration the rights and
interests of boundary owners.
Since a declaration in favour of
the Defendant as prayed will
operate as a judgment against
the whole world, it will be
prejudicial to the interest of
third parties to grant the
Defendants such declaratory
relief based only the
description of Danchira Lands
adduced from the evidence of the
1st Defendants
attorney. For want of
appropriate description and
positive identification of the
parcel described in the
counterclaim by failure to
tender a properly oriented plan
drawn to scale therefore, I
shall refuse to grant relief (1)
of the Defendants counterclaim.
76. My refusal to grant in
favour of the Defendants a
declaratory relief is
supported by a number of decided
cases. In the Nigerian case of
IKEBIFE IBENEWEKA VRS.
PETER EGBUNA (1964) 1WLR 219 at
224 – 225 Viscount
Radcliffe stressed the
discretionary character of an
action for declaration as
follows:
“The general theme of
judicial observations has been
to the effect that
declarations are not lightly to
be granted. The power should be
exercised ‘sparingly’ with
‘great care and jealousy’ with
‘extreme caution’, with the
utmost caution’. These are
indeed counsel of moderation,
even though, as Lord Dunedin
once observed, such expressions
afford little guidance for
particular cases.
Nevertheless, anxious warnings
of this character appear to
their Lordships to be not so
much enunciations of legal
principle as administrative
cautions issued by eminent and
prudent judges to their possibly
more reckless successors. After
all, it is doubtful if there is
more of principle involved than
the undoubted truth that the
power to grant a declaration
should be exercised with a
proper sense of responsibility
and a full realization that
judicial pronouncements ought
not be issued unless there are
circumstances that call for
their making”.
The principles in the local
cases of ANANE VRS. DONKOR
(1965) 1 GLR 188 NYIKPLOKPOR VRS.
AGBEDOTOR (1987 – 88) 1 GLR 18.
PARKER QUAYSON VRS. KWEI DORNU
ANANGFIO & ORS. unreported
decision of the Court of Appeal
dated 19th March 2008
are hereby applied in the
refusal to grant a declaration
of title in favour of the
Defendants.
77. Having found that
Plaintiff’s interest in the
subject was not duly granted by
the Co – Plaintiff not having
been granted by the 1st
Defendant’s composite families
of four, I shall grant relief
(2) of the counterclaim for
recovery of possession from the
Plaintiff and Co – Plaintiff of
any portion of Danchira lands,
their possession being merely
trespassory and not recognized
by law.
78. The Defendants have
endorsed a claim for specific
damages for destroyed food
crops. There are no particulars
of such damage, containing the
types of crops destroyed nor the
quantum of loss suffered by the
4th and 5th
Defendants who from the evidence
are farmers or for that matter
of any other Defendant. The
court cannot award specific
damages in the absence of
particularization and evidence
adduced supporting same.
79. Be that as it may
however, in the reply to amended
statement of defence filed by
the Plaintiff on 15th
April 2008 the Plaintiff averred
as follows:
“(5). Plaintiff will in
reply to paragraphs 11 and 12 of
the statement of defence say
that some one year ago the 4th
and 5th Defendants
who were tenant farmers were
called and informed by the head
of family not to replant the
portion of land given to the
Plaintiff with food crops after
harvesting what they had planted
and they agreed. So when the
Plaintiff went unto the land he
found remnants of plants he
cleared the area for his
development”.
80. The formulation of this
averment by Plaintiff’s counsel
is clearly inelegant because it
is argumentative and amounts to
pleading evidence and equates
Plaintiff as if it is the same
as its Managing Director Mr. F.
K. Asare.
81. In the course of cross
examination by Defendants’
counsel Plaintiff’s
Managing Director was asked
“Q. You stated that
when you went into the land you
found remnants of plants and
cleared them?
A. Yes”.
82. As has been
established by the evidence the
4th and 5th
Defendants are not mere
peasant farmers but farmers of
substantial resource and
reputation who have
been acknowledged by the
Ministry of Food and
Agriculture during Farmers’ Day
celebrations as established by
Exhibits 8, 9 and 10. It is
also now clear from the evidence
that 4th and 5th
Defendants are not
grantees of the Plaintiff’s
grantors but grantees of the
1st Defendant’s
composite family and they
have been in uninterrupted
possession per
Exhibit ‘7’ since 1974.
83. Based on the
Plaintiff’s own admission of
clearing some plants
whether remnant or not and
having done so on the erroneous
position that the 4th
and 5th Defendants
are grantees of the Co –
Plaintiff a position
which is false and could have
been easily verified, I shall
award the sum of GH¢10,000.00
in favour of the 4th
and 5th
Defendants against the
Plaintiff for the damage
and loss occasioned by the
Plaintiff’s
clearance of their plants
same having been found to be an
act of trespass.
84. Finally the Defendants
not having led any evidence to
establish their quantum of loss
whether resulting from trespass
or other civil wrong by the
Plaintiffs but claim general
damages, I shall follow the
principle in the case of DELMAS
AGENCY GHANA LTD. VRS. FOOD
DISTRIBUTORS INTERNATIONAL LTD.
(2007 – 2008) SCGLR 748 on the
award of general damages where
the Supreme Court held in
Holding (2) and said.
“General Damages is such as the
law will presume to be the
natural and probable consequence
of the Defendant’s act. It
arises by inference of the law
and therefore need not be proved
by evidence. The law implies
general damage in every
infringement of an absolute
right. The catch is that only
nominal damages are awarded”.
85.
On the strength of this
authority I shall award in
favour of the 4th and
5th Defendants
general damages of GH¢3,000
against the Plaintiff.
86. Further, I hereby grant
an order of perpetual injunction
restraining the Plaintiff
and the Co – Plaintiff whether
by themselves,
agents, workmen, privies
howsoever described and by
whomsoever from
entering upon the subject
matter of this suit or by
conducting themselves in any
manner inconsistent with
the interest of the Defendants
in the subject
matter.
By Court: I shall now hear
counsel on costs.
Defendants’ Counsel: I shall ask
for costs of GH¢20,000.00.
Plaintiffs’ Counsel:
I shall offer GH¢5,000.00.
By Court:
Costs of GH¢15,000.00 is hereby
awarded in favour
of all the Defendants against
the Plaintiff and Co
–
Plaintiff.
(SGD.)
ALHAJI I. O. TANKO AMADU
JUSTICE OF THE HIGH COURT
1. COUNSEL FOR
PLAINTIFFS – DANIEL OPARE ASIEDU
2. COUNSEL FOR
DEFENDANTS – NII AKWEI BRUCE –
THOMPSON
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