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JUDGMENT
BY COURT:
The Plaintiffs by their writ of
summons filed on 14th
December, 2006 which was
subsequently amended on 28th
November, 2007 claimed the
following reliefs, which have
been quoted verbatim.
I.
Declaration of title and
recovery of possession.
II.
An Order for ratification of the
Land Register by removing the
Plaintiff’s freehold estate from
it.
III.
Perpetual Injunction,
restraining the Defendant by
himself, his servants, agents
workmen and privies from
interfering with the land the
subject matter of this action or
dealing with any part thereof in
whatsoever manner.
IV.
An amount of ¢450 million being
the cost of the destroyed wire
mesh, and wooden post fence, two
fish ponds and stock of fish and
fingerlings.
V.
General Damages for trespass and
cost.
The amended statement of claim
that accompanied the writ of
summons described the Plaintiffs
as the Administrators of the
Estate of the late Nene Okle
Amponsah VII known in private
life as Alexander Adormson.
That the said Alexander Adormson
who died on 28th
December, 2001 was the sole
proprietor of NALEX FARM. That
on 19th April 1982,
the late Alexander Adormson
acquired two parcels of land in
the name of NALEX FARM. The two
parcels of land were described
in schedules ‘A’ and ‘B’ in an
indenture that was issued to him
and was registered at Land
Registry as No. 2585/1982. The
statement of claim went further
that two fish ponds were
constructed on the land, but
sometime in 2005, the Defendant
trespassed unto the land and
destroyed the fish pond, and the
stocks of fish and fingerlings.
The Defendant denied that he had
destroyed any fish pond and
stocks of fish, and
counterclaimed for Declaration
of title to the parcel of land
with land title certificate No.
TD1494 issued on the 24th
January, 2006.
On 17th April, 2008,
the Original issues filed by the
Plaintiffs on 28th
February, 2008 were set down as
the issues for trial as the
additional issues were stuck
out.
The issues set down for
determination are as follows:
a)
Whether or not the land in
dispute belongs to the estate of
the late Nene Okle Amponsah IV
also known as Alexander
Adormson.
b)
Whether or not there was a
fenced fish pond stocked with
fish on the land in dispute.
c)
Whether or not the Defendant
trespassed on to the land in
dispute and destroyed the fish
pond with its stock of fish and
the fence.
d)
Whether or not the Defendant at
all material times knew that the
land in dispute belonged to
Alexander Adormnson (deceased)
who until his death was the sole
owner of NALEX FARMS.
e)
Whether or not the Defendants
purported grantor Z.K. Asare,
who witnessed the execution of
the instrument granting the land
in dispute to NALEX FARM by
appending his signature thereto
could subsequently make a valid
grant of the same land to the
Defendant.
f)
Whether or not the Defendant
fraudulently obtained Land Title
certificate in respect of the
land in dispute.
g)
Whether or not the Plaintiffs
are entitled to their claim.
h)
Whether or not the Defendant is
entitled to his claim.
As all the parties claimed to
have Deeds covering the lands
that they claimed, the Regional
Director of the Survey and
Mapping Division, Lands
Commission Accra, was appointed
to prepare a composite plan of
the land in dispute, which he
did.
From the composite plan, it was
clear that the land covered by
the Plaintiffs title document is
different from the land claimed
by the Defendant and covered by
the Defendants title document.
The Plaintiffs claim that when
the land was given to their
father, he constructed two fish
ponds on it. The defendant also
say that there was no fish pond
on the land, at the time that he
acquired the land from the
family, but that it was weedy
and waterlogged.
For easy resolution of the
issues raised in this case,
issues ‘a’ and ‘e’ will be
resolved first. From the
composite plan, the land granted
to the Plaintiffs father in
exhibit ‘A’ is not the land
being claimed by the plaintiffs
on the ground. The plaintiffs
admitted this, during the
pendency of this suit, and
quickly prepared exhibit ‘D’ to
say that there was a mistake in
the preparation of exhibit ‘A’.
Exhibit ‘A’ was prepared by the
Lenordje Apatekyi Family of
Dodowa New Town, and stated
specifically that the land
granted to NALEX FARMS is more
particularly described in the
schedule and in the plan
attached hereto and shown edged
pink.
The Statutory Declaration, which
purported to correct the alleged
mistake in the plan, was not
sworn to by the Lenordje
Apatekyi family, but by the
Administrators of the estate of
Emmanuel Adormson. The date
that the statutory declaration
was sworn is not stated, but the
Second Plaintiff whilst under
cross-examination gave evidence
that it was made in 2006.
However, the evidence in chief
of the 2nd Plaintiff
on the preparation of statutory
Declaration reveals that it
could have been made only in
2008 but not 2006. She said
before the statutory declaration
was made, a surveyor came to
survey the land, made the right
markings, and produced a new
site plan. The licensed
surveyor made the new site plan
on 19th May, 2008, at
a time that the land covered by
the site plan in exhibit ‘D’ had
been given to the Defendant by
the appropriate family and at a
time that legal proceedings were
pending in court over the
ownership of that very land. If
the Plaintiffs root of title is
exhibit ‘A’ and exhibit ‘A’ has
been shown not to cover the land
in dispute, then the Plaintiffs
cannot unilaterally declare that
the land covered by exhibit ‘A’
should have been the land
covered by the site plan in
exhibit ‘S’. The reason being
as follows:
a)
The land in exhibit ‘A’ was
given by the Lenordje
Apetekyi-family of Dodowa to
Nalex farm, which he accepted
and was not changed before the
death of Alexander Adormson the
brother and father of the
plaintiffs, and the sole
proprietor of Nalex Farm.
b)
At the time that it was made
there was a pending litigation.
c)
The family that gave the land to
Nalex Farm had never said it
made a mistake in the
description of the given land
The Supreme Court has also held
in the case of In Re: Ashalley
Botwe lands, Adjetey Agbosu and
others vrs. Kotey and others
(2003-04) SCGLR 420 that
‘Generally statutory
declarations per se were
self-serving and so of no
probative value, where the facts
as in the instance case, had
been challenged or disputed. It
is also not a registered
document under the Land Registry
Act, 1962 (Act 122) nor was it a
deed or conveyance of an
interest in land.
Georgina Wood JSC as she then
was, added that under section 2
of the statutory Declaration
Act, 1971, (Act 389) a person
wishing to depose of any facts
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.
I therefore reject exhibit ‘D’
and hold that the land in
exhibit ‘A’ given to Nalex Farm,
which is the root of the
plaintiffs claim is the land
edged Green on exhibit CW1 ‘A’.
The plaintiffs have however led
evidence that the deceased, had
two fish ponds on the land that
he acquired from his family.
Since the evidence of the
surveyor shows that where the
fish ponds were constructed was
not within the land that was
gifted by the family to Nalex
Farm, and the plaintiffs have
also admitted same, I hold that
the land on which the fish ponds
were constructed was not the
land that was gifted to Nalex
Farm, as covered by Exhibit ‘A’.
The plaintiffs were also not
able to lead evidence that the
fish farming on the land in
dispute continued after the
death of Alexander Adormson, the
sole proprietor of Nalex Farm.
The evidence on record shows
that Alexander Adormson died on
28th December, 2001.
Exhibit ‘A’ which is the
certificate of Merit given to
Nene Okle Amponsa for fish
farming is dated 5th
December, 1986. No evidence was
lead by the plaintiff that after
the 1986 award, the Deceased
continued with his fish farming
till his death on 28th
December, 2001. Mr. Kwame Tettey
Korley Agbal, Chief Executive of
the area from October, 2001 to
June, 2005, said he heard that
the place was once used as a
fish pond but had been abandoned
and had become bushy and
waterlogged.
The import of D.W.1’s evidence
is that at the time that he was
District Chief Executive, the
land was not being used as a
fish farm.
D.W. 2, who is the District Town
Planning Officer also tendered
exhibit 4A whose date he gave as
22nd March, 2005. It
was stated in exhibit 4A
paragraph 3 that “We wish to
emphasize that the land in
question is well known to all,
in particular the District
Assembly, as water logged piece,
having been used for a fish pond
by the owners for years, but
abandoned. The site as far as
we know has been over grown with
swamp flora and posed an
environmental hazard. During
rainy seasons, running water
from the higher grounds stagnate
there presenting very unsightly
scene. No one could build there
without carrying out expensive
reclamation….”
D.W. 3 Sherlor Sondje, who is a
member of Odoi kwaku and Yaa
Doe’s family gave evidence that
the land was given to Nene Okle
Amponsah to rear fish. That he
did the fish farming for
sometime, and stopped about 15
years ago. The place then
became bushy so it was sold to
the Defendant. The evidence of
D.W.3 that the fish faming was
stopped about 15 years ago was
not challenged during cross-
examination.
According to D.W.3, the land was
for the family and they gave it
to Alexander Adormson for a fish
pond. After its abandonment,
the family sold it to
Defendant. Exhibit I, according
to P.W. 2 bears his signature
and that of Nene Okle Amponsah.
The Defendant also gave evidence
that Nene Okle Ampnsah, the late
chief sold an adjourning land to
him. He however told him that
the land in dispute does not
belong to him. After his death
the family came to him and he
bought the land from them.
Since the land in exhibit ‘A’
does not cover the land in
dispute and the fish farming on
the land had been abandoned, the
grant of the land to the
Defendant by the owners is
proper.
I therefore hold that the land
in dispute does not form part of
the estate of the late Nene Okle
Amponsa IV, and that Z. K. Asare
and others had the right to
grant the land to the Defendant.
Having accepted the evidence of
the Defense that the fish
farming had been abandoned about
15 years ago, I hold that at the
time that the Defendant entered
the land, there was no fish pond
on the land and therefore, no
trespass had been committed.
In sum, I dismiss the
plaintiffs’ claim and enter
Judgment for the Defendant on
his counter- claim as follows:
a.
The Defendant is declared title
to the land in dispute; covered
by Land Title Certificate No.
TC1494.
b.
The plaintiffs, their agents,
servants, privies etc are
perpetually restrained from
interfering with or disturbing
the peaceful ownership,
possession and use of the
Defendant’s land as described in
Land Title Certificate Number TD
1494 issued on 24th
January 2006.
The defendants’ claim for
damages for trespass is
dismissed as unproved.
The Defendant is awarded cost of
GH¢4,000.00.
(SGD.)MR. JUSTICE S.H. OCRAN
Justice of the High Court
Counsel: Mr. Anthony
Desewu for Plaintiff.
Mr.
Justine Amenuvor for
Defendant.
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