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_____________________________________________________________________
J U D G M
E N T
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Per an amended
writ of summons filed on 24th
January 2011, plaintiff claimed
from the defendant the under
mentioned reliefs:-
“1. Declaration of title
to land situate and lying at
Oblojo near Weija-Accra in the
Greater
Accra Region containing an
approximate area
of 1,52 acres more or less and
bounded on the
North West by Oblojo-Weija road
measuring
440 feet more or less on the
North East by lessor’s
land measuring 150 feet more or
less on the South
West by proposed road measuring
150 feet more or
less on the South East by
lessor’s land measuring
440 feet more or less;
2. Perpetual injunction
restraining the defendant, his
agents and assigns from
interfering with the said
land and
3. General damages for
trespass to the said land.
Plaintiff’s case
as pleaded was that she acquired
the land in dispute from William
Nii Kpakpa Quartey (to be
hereinafter called Quartey) in
1985. She claimed to have
assigned a portion of the
acquired land to two persons and
also developed a portion of the
land and the rest of the land
was shared among her children
some of whom started developing
same.
Plaintiff then made a case that
defendant has unlawfully entered
the land and shown every desire
of intensifying his trespassory
acts on the land by constructing
a building on the land, hence
the institution of the action.
Defendant denied the claim of
plaintiff. Although defendant
conceded that Quartey was the
original owner of the disputed
land, plaintiff obtained her
grant not from Quartey but from
one Francis Ogbarmey Ashong,
aka, Nii Armah Cobblah
(hereinafter called Ashong).
However, defendant stated that,
after the death of Ashong,
plaintiff took steps to
regularize the grant by getting
the true owner of the land,
Quartey to ratify that grant.
Defendant claims he obtained his
grant of the land from the
selfsame Quartey and the land,
the subject matter of his grant
is L-shaped and same is
documented. He indicated that
the land is depicted in a
document dated
14th December 1987,
stamped as AR/31140/91 as well
as the Right of Entry dated
21st June
1985.
Defendant averred further that
in the lifetime of Quartey,
there arose an occasion whereby
Quartey proclaimed in the
presence of plaintiff and others
that he gave the land to
defendant.
Defendant stated that plaintiff
demolished his store room/site
shed for no just cause,
contending that where
plaintiff’s land lies is
different from his and that
plaintiff had made full use of
her land and cannot claim his as
part of her land.
Claiming that he is
damnified by the demolition,
defendant counterclaimed for:-
“(a) A declaration of title
to the plot of land as
evidenced by indenture dated 14th
December 1987,
Right
of Entry dated 21st
June 1985,
(b) Damages for trespass,
(c) Special Damages for
demolition of store
room/site shed”
Besides the testimony of
plaintiff, she called two
witnesses and defendant also
testified and called three
witnesses.
Plaintiff testified that she
first bought the disputed land
from James Town Stool but later
learnt that the land actually
belonged to Quartey. She
therefore re-acquired the land
from Quartey who gave her
Exhibit ‘A’ dated 15th
February 1985. Plaintiff also
tendered Exhibit ‘A1’ “Right of
Entry” also dated 15th
February 1985.
Quite clearly, both Exhibits ‘A’
and ‘A1’ are dated 15th
February 1985. The fact that
these two documents bear the
same date raises eyebrow
especially if one considers that
in one of the documents, that is
Exhibit ‘A1’, it was stated
that: “ a deed of conveyance in
respect of the land sold to the
purchaser (plaintiff) is in
course of preparation for
execution for Mrs. Florence
Effah (plaintiff)”. This should
mean that Exhibit ‘A1’ was first
in time and same was executed on
15th February 1985.
In Exhibit ‘A1’ it was indicated
that Exhibit ‘A’ was being
prepared and yet when Exhibit
‘A’ was finally prepared and
executed, it was so done on the
same 15th February
1985. How incredulous!
It is significant to observe
that defendant also tendered
Exhibit ‘6’ which appeared to be
the same as Exhibit ‘A1’. I have
critically examined the two
documents and it appears to me
that Exhibit ‘A1’ is doctored to
throw dust into the eyes of the
court. It is stated in Exhibit
‘6’ that: “the approximate area
covered by the sale is five (5)
plots of land each measuring 100
x 70”. This statement in
quotation has been doctored
perhaps to overreach the justice
of the case.
What I see in Exhibit ‘A1’
reads:-
“The approximate area covered by
the sale is 1.52 acres of land
measuring
150’ x 440’ ”. It can be
observed that ‘1.52’ has been
doctored, “each” has been
cancelled and ‘150’x440’ has
also been doctored.
Having analyzed
Exhibit ‘A1’ and Exhibit ‘6’, I
find that the land sold to
plaintiff consisted of five (5)
plots.
In addition, I
find that it was Ashong who
executed both Exhibits ‘A1’ and
‘6’ granting right of entry to
the land in favour of plaintiff.
Defendant made a
fuss about the land not having
been granted to plaintiff by
Quarter, the original owner but
by Ashong, contending that it
made the grant of the land to
plaintiff fundamentally flawed.
By defendant’s own showing, this
so-called irregularity was
ratified by Quartey. (see
paragraph 5 of the statement of
defence filed on 30th
May 2000).
At any rate, a
close study of the evidence on
record as a whole and Exhibit
‘7’ dated 14th April
1980 in particular reveal that
Quartey delegated powers of
dealing in the land to Ashong
for a good reason or legally
speaking for a good
consideration.
For full effect I
crave indulgence to produce
verbatim the relevant extracts
from Exhibit ‘7’ as to the
reason why Quartey delegated
powers to “Ashong:-
“2. Through the untiring
efforts of the said
Francis Ogbarmey Ashong, he has
procured
for me legal
document stamped and registered
with the Lands Registry, Accra
as No. 577/1980
to validate my ownership.
3. The care and
management of the said tract of
land has been undertaken by
Francis Ogbarmey Ashong and that
to the time of the execution of
this agreement, Francis Ogbarmey
Ashong has expended his personal
money of thousands of cedis in
respect of the maintenance and
otherwise of the said tract of
land.
5. I have also
irrevocably agreed that Francis
Ogbarmey Ashong will be entitled
to a one-for the (1/4) share of
all monies accruing from the
sale of otherwise of that tract
of land….”
This shows that by virtue of the
instrumentality of Ashong in
protecting the interest of
Quartey in the land, Quartey
allowed Ashong to play an
integral part in the
administration of the land.
Therefore, it cannot be gainsaid
that in 1985 when Ashong
executed Exhibit ‘6’ or Exhibit
‘A’ in favour of plaintiff he
had the legitimacy and power to
do so on behalf of Quartey.
I just made the point a while
ago that the land, the subject
matter of the right of entry as
granted to plaintiff consisted
of five plots.
Plaintiff made a case that she
has given one plot of the land
to her son who has put up his
building on it. Another son of
plaintiff was also developing
another plot. Besides these two
sons of plaintiff, she has sold
four plots to police officers
who have developed them and are
staying in them. For its full
force and effect, I deem it
relevant to reproduce the
cross-examination of plaintiff:-
“Q. Do you have children?
A. Yes, I have children,
five of them.
Q. Are any of these
children connected to this land
in any way?
A. The senior one has put
up a building on his.
Q. Is that all?
A. And the forth one was
developing the land when this
case came on.
Q. Apart from your
children is anybody doing
anything on the land with your
consent.
A. Yes, in 1996, I sold
four plots to some CID men; they
are staying in their houses.
Q. They have completed
the houses and staying in them.
A. Yes, they completed
them in 1996”.
From this intercourse, one
wonders whether plaintiff has
not utilized his entire 1.52
acre land or the 5 plots of
land. This is because by 1996,
granted that the land plaintiff
acquired could be divided into 6
plots as against even the 5
plots as explicitly stated in
Exhibit ‘6’, plaintiff had used
up all the land. The question
then is what part of the
plaintiff’s land did defendant
enter to develop, when she
appears to have used up her
entire land?
In any event, the law requires
that a plaintiff who sues for
trespass is enjoined to prove
not only the identity of the
subject matter but also the
exact area and extent of the
trespass.
In this case plaintiff failed to
prove, with any degree of
certainty, that where defendant
has developed his house is part
of the land she acquired.
It is worthy of note that when
plaintiff went to Quartey to
enquire whether he had sold any
part of his land to defendant,
Quartey told plaintiff that he
had sold one plot of land to
defendant. The significant thing
Quartey added was that the land
he had sold to defendant was not
part of the land he had given to
plaintiff.
In cross-examination, plaintiff
Exhibited ignorance as to the
size of her land yet she claims
that defendant has trespassed on
her land. Even under the heat of
cross-examination, plaintiff
could not tell the court the
number of plots her children and
herself had developed. Her
reluctance to state the number
of plots being developed or
should I say plaintiff’s feigned
ignorance of the number of plots
being developed or developed was
a deliberate attempt to hide the
true state of affairs from the
court.
I cannot also be oblivious of
plaintiff’s testimony that
defendant’s building is on
Quartey Papafio’s land and that
the building is not on her land.
This emerged from re-examination
and I quote same hereunder:-
“Q. Look at the picture
(Exhibit ‘1A’); you see a
building; can you tell the court
the relationship between where
the building is situate and the
area in litigation before the
court (Exhibit ‘1A’shown to
plaintiff)
A. My Lord, the building
is on Quartey Papafio’s land.
Q. So it is not on your
land?
A. No. it is not on my
land”
Defendant was categorical that
he had developed his building on
the land in dispute and that is
where he lives. Exhibit ‘1A’ was
a photograph of defendant’s
building.
In effect plaintiff wanted the
court to believe that where
defendant has put up his
building is not on her land, and
I have every reason to believe
that plaintiff is right and
besides herself in corroborating
defendant’s case. Yet plaintiff
has sued defendant for trespass
unto her land and would not show
which part of her land defendant
trespassed upon. This renders
the suit mounted by plaintiff
nothing but vexatious.
In contradistinction, defendant
showed clearly that he obtained
the grant of the land from
Quartey who happened to be the
same grantor as plaintiff.
Exhibit’9’, a conveyance of the
plot of land given by Quartey to
defendant has as its integral
part of site plan which is the
same as Exhibit ‘5’. It is
significant to observe that
Quartey endorsed the site plan
which confirms that the subject
matter of the conveyance was
approved as the very land
granted to defendant.
Plaintiff wanted the court to
believe that the signature of
Quartey on the documents
tendered by defendant which are
supportive of his case is
forged. Forgery is quite a
serious allegation to make in
attacking the genuiness of a
document and as such it is
expected that proof of such
allegation must be strict. In
this case, plaintiff and her
witness (PW1) made no attempt to
proving that the signature of
Quartey on the Exhibits tendered
by defendant was forged.
At any rate I have critically
looked at the signature of
Quartey in all documents
Exhibited in this case including
even the documents plaintiff
relied on and I do not have any
cause to doubt the genuiness of
the signature of Quartey on
them.
On the preponderance of the
probabilities, I am satisfied
that defendant adduced cogent
and sufficient evidence to
establish that he deserves to be
decreed the owner of the land
delineated in Exhibit ‘5’ and as
evidenced by Exhibit ‘9’. In
effect defendant is entitled to
his counterclaim in respect of
the declaratory relief sought.
The evidence showed that the
interference on defendant’s land
was perpetuated by a son of
plaintiff. Indeed, it was the
son of plaintiff who demolished
the site shed defendant had
developed on the land.
Although defendant claimed for
special damages for the
demolition of the site shed, no
evidence was adduced as to how
much defendant expended in
putting up the said site shed;
neither did defendant tell the
court the cost of the site shed.
In any event, since the evidence
was that it was the son of
plaintiff who caused the
demolition to be done, defendant
cannot claim damages from
plaintiff. This is because,
plaintiff’s son should have been
sued or joined to this suit to
answer for his acts. Plaintiff
cannot be saddled with the
responsibility of paying
compensation in the nature of
damages for unlawful acts
perpetuated by her son who is of
full age and is suable.
In conclusion since a vital
document plaintiff relied on in
proof of her title appeared
doctored and tampered with
coupled with the uncertainties
as to whether she has not fully
used up the land she purportedly
acquired, the size of the land
she is claiming and importantly
her inability to prove trespass
by defendant, I will dismiss her
action.
I enter judgment for defendant
and declare him the owner of all
that piece of parcel of building
plot indicated in Exhibit ‘9’
and particularly depicted in
Exhibit ‘5’. His claim for
general and special damages is
however, for reasons stated
supra, dismissed. Defendant is
awarded costs of GH¢5,000.
(SGD)
ANTHONY OPPONG J
JUSTICE OF THE HIGH COURT.
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