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J U D G M E
N T
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Plaintiff commenced this action
against 1st defendant
only initially. He essentially
alleged that 1st
defendant had trespassed unto
his land which was covered by
Land Title Certificate. When 1st
defendant entered appearance and
filed a defence, it was alleged
in that defence that one Robert
Nkansah Agyapong was the owner
of the land in dispute and that
he (1st defendant)
was a mere caretaker of the land
at the instance of the said
Robert Nkansah Agyapong.
Consequently, Robert Nkansah
Agyapong was joined to the
action as
2nd defendant.
Upon the joinder, the writ of
summons was, in accordance with
procedure, amended to reflect
him as 2nd defendant.
The reliefs endorsed on this
amended writ of summons read:-
“1. An
injunction restraining the
defendants,
their agents,
servants or anybody howsoever
from entering
or doing anything on plaintiff’s
land referred
to as all that piece of land
extent
of 0.24
hectare (0.60) more or less
being parcel
No. 530 block
16 Section 116 situate at
La-Bawaleshie
in the Greater
Accra Region of the Republic of
Ghana aforesaid as
delineated on Registry Map
No. 001/116/1992 in the
Land Title Registry
Victoriabory – Accra;
2. An order
for ejectment of defendants,
demolition or
removal of
all structures made by
defendants
on
plaintiff’s land;
3.
Damages for trespass
4.
Any other or further
reliefs”
The basis of
plaintiff claim as gleaned from
the statement of claim is
that he purchased the land in
dispute and has applied for and
obtained Land Title Certificate
over the land. He entered into
possession and defendants, from
nowhere, are violating his
possessory rights over the land
hence the institution of the
action.
It may be observed that
plaintiff did not seek for
declaration of his title
to the land. He essentially
sought for an order of
injunction and damages for
trespass. Defendants denied this
claim and 2nd
defendant in particular who
actually contested the claim of
plaintiff in this action
asserted ownership to the land
in dispute, contending that he
has legitimately acquired the
disputed parcel of land from
Numo Nmashie family of Teshie.
It can therefore not
be over emphasised that the
stance taken by 2nd
defendant in the light of the
claim of plaintiff, as a matter
of law, put the titile of
plaintiff in issue.
Ollennu in the case of
MAJOLAGBE Vs. LARBI & Ors.
(1959) GLR 190 at 193 stated the
law that “where a plaintiff sues
not only in trespass but also
for an injunction, and his claim
is denied, (such as in this
case), the legal position is
that he has put his title in
issue; he cannot succeed unless
he is able to establish his
title”
The question to pose
therefore is whether or not
plaintiff has adduced sufficient
and cogent evidence as to be
entitled to be declared the
owner of the land in dispute.
Put differently, which of the
parties, plaintiff or 2nd
defendant, has better title to
the disputed land?
It is on record that
plaintiff acquired the land in
1996 from the Osae family of
Teshie and 2nd
defendant acquired the land in
1997 from the Numo Nmashie
family of Teshie.
The simple legal
point worthy of making is that
granted that both parties
acquired the land from the same
grantor, 2nd
defendant’s acquisition would
have been regarded as late in
time and therefore could not
take precedence over the
acquisition of plaintiff on
equitable principles.
But as indicated,
plaintiff acquired his land from
the Osae family and 2nd
defendant acquired his land
from the Numo Nmashie family,
that is, both parties had their
respective grant from different
grantors.
What is striking and
unknown to both parties is that
in 1996 and 1997 when the
parties purportedly acquired
their respective land, the land,
which is in dispute now which
forms part of a larger tract of
land had been compulsorily
acquired by the state, that is,
Government of Ghana (GOG) in
1978.
This state of affair
explains why either party could
not register his land because
the fact of the land being state
land was not oblivious To Lands
Commission hence the
unwillingness or refusal of
Lands Commission
to register the land.
Indeed since 1999, 2nd
defendant had made several
requests to Lands Commission for
the registration of his land.
However, all the requests were
turned down with the reason that
the land or site being requested
for registration by 2nd
defendant was state land.
For instance, in
2000, the Lands Commission wrote
to 2nd defendant that
the land “falls within
Government land …… in the light
of the above, this office cannot
proceed with the registration
until the instrument is
published”
In February 2003, a
search conducted by 2nd
defendant also showed that the
land was state land. (See
Exhibit ‘4’). And in June 2003,
the Lands Commission wrote yet
again to inform 2nd
defendant that “the Commission
is not in a position to grant
the subject parcel of land as it
is affected by a state
acquisition dated 7th
February 1978 for Scientific
Instrument Centre”
Attempts of
plaintiff to register the land
was similarly treated by the
lands commission.
As stated earlier the
land in dispute was compulsorily
acquired by the state per
Executive Instrument 8 of 1987
(that is, State Lands
Accra-Nungua Otinshie site for
Scientific Instrumentation
Centre (Amendment) Instrument,
1978).
It was not until
2004, that per another Executive
Instrument No. 17
(that is, State Lands
Accra-Nungua Otinshie site for
Scientific Instrumentation
Centre) Instrument, 2004 which
amended E. I. 8 a portion of the
land inclusive of the land in
dispute was released.
The pertinent
question to pose in this case is
to whom or in whose favour was
the release made?
It is instructive to
observe that this question was
asked and answered when learned
lawyer for 2nd
defendant was cross-examining
plaintiff. On
3rd March 2010, among
other questions, the learned
lawyer for 2nd
defendant in cross-examination
asked the question:-
“Q. Which family was given
back the land?”
and the answer was: “A. Dr. Osae
and family”
It cannot therefore
be over emphasized the
Government released the
land to plaintiff’s grantor as
against 2nd
defendant’s grantor.
Plaintiff narrated
the historical background of the
land saying that the land
originally belonged to the Osae
family and somewhere along the
line, the Government
compulsorily acquired it for
some scientific and other
projects. Later in time, the
Osae family petitioned for a
portion of the land that had
been compulsorily acquired,
contending that the extent of
the land the Government acquired
was too huge in size. The
Government had a good ear to the
plea of the Osae family. It
ceded a portion of the land to
the Osae family.
Learned lawyer for 2nd
defendant had a contrary
historical background of the
land. He wanted the court to
believe that Government
originally owned the land and
it, later on, released a portion
of the land to the Osae family.
This finding is
gleaned from the following
questions and answers in
cross-examination:-
“Q. I am
saying that you couldn’t have
registered the land because
the land was
occupied by the state. You
indicated that yes it is
for the state
and the state gave it back to
the family, is that not so?
A.
Not for the state. It was
originally for the family and
the state
acquired it for something and
later the family went in to say
that
well you acquired the land and
it is still bare, we want part
of it.
Then the state gave the family
back some of the land. So the
family
sold it.
Q. I am putting it to you
that that cannot be.
A. That is it.
Q. It is the state that
owned it and returned it to the
family.
A. That is not true”
On the
totality of the evidence in
general and E. I.’8’ in
particular, I tend
to find that the narration of
plaintiff is more probably the
case than the narration the
learned lawyer for 2nd
defendant wanted me to believe.
Plaintiff was able to
show that the release of the
land to the Osae family by
Government was predicated on a
judgment of the Supreme Court
tendered into evidence as
Exhibit ‘C’.
In that case the
Osae family sued Numo Nortey
Adjeifio and others and obtained
judgment. There was an appeal
against the judgment and the
appeal succeeded. Then the Osae
family appealed to the Supreme
Court and succeeded in part. The
Supreme Court held that since
Otinshie village was in
existence before the creation of
the quarters of Nungua which
included Numo Nmashie family of
Teshie, and that the ancestor of
Osae family exercised his
inherent rights over the
Otinshie village, the Osae
family acquired absolute or
allodial title to the land as
described in the judgment.
The evidence showed
that it is on the strength of
this Supreme Court judgment that
the Lands Commission recognised
the Osae family as owners of the
land which consisted of the land
in dispute in this case.
It is against this
background that the land
commission consequently
registered the land in favour of
plaintiff and refused to
register same for 2nd
defendant since he did not
acquire his from the righful
owners.
Indeed plaintiff
said it all when in an answer to
a question in cross-examination
he said: A……. we all made the
attempt to register but we
couldn’t because it was state
land. The land was later
released to the real owners
(my grantors) by the Government.
That was why he could not
register but I was able to
register”.
The next pertinent
issue to determine is who first
entered into possession of the
land in dispute. Was it
plaintiff or 2nd
defendant?
Plaintiff testified
that when he acquired the land,
he went into possession by
constructing a foundation and
erecting a fence wall.
Hear plaintiff: “I
walled it (the land ). Later I
was informed by somebody
I employed to work on the land
that another person had come on
to the land and had started
destroying the foundation I
did”.
That ‘somebody’
mentioned in plaintiff’s
evidence was PW1, Stephen
Arthur, a mason whom plaintiff
employed to work on the land.
PW1’s testimony is in material
particular very corroborative of
the testimony of plaintiff. His
testimony was about the state of
the land when plaintiff acquired
it. He emphasised that the land
was bare, nothing by way of
development was on the land.
According to PW1: “ they dug
foundation on the land and we
started with the concrete works,
block works and the fence wall
on the land”.
I do not therefore
believe 2nd defendant
who wanted the court to believe
that when he went unto the land,
same was bare and nothing had
been done on the land. Indeed, 2nd
defendant’s admission on record
that when he entered the land
there was what he called “a
dwarf wall” belie his contention
that there was nothing on the
land.
In the circumstance I
am satisfied that plaintiff was
the first person to enter into
possession of the land and
constructed a foundation on the
land but this foundation was
destroyed by 2nd
defendant. Not only that, after
destroying the foundation 2nd
defendant defied all caution and
built on the land, although
he had had sufficient notice, in
the form of protestations, as to
his being on the land.
I conclude by stating
without any shadow of doubt that
plaintiff’s title to
the disputed land is superior to
that of 2nd defendant
if he even has any title
at all.
By an order of this court,
2nd defendant either
by himself, his agents, servants
or anybody howsoever described
are hereby restrained from doing
any thing further on plaintiff’s
land described as per the
endorsement on
the writ of summons.
I also order not
only the ejectment of 2nd
defendant, his agents, servants
from the land but I also order
demolition and removal of any
structure made by 2nd
defendant on plaintiff’s land at
2nd defendant’s
expense.
For damages for
trespass, since plaintiff did
not adduce any evidence as to
any special damage I will award
plaintiff nominal damages of GH¢5,000.00
to compensate for the
destruction of the foundation
and the fence wall.
Plaintiff is awarded
cost of GH¢7,000.00.
(SGD) ANTHONY OPPONG J.
JUSTICE OF THE HIGH
COURT.
LAWYERS:
ROBERT YARTEY ESQ; FOR
PLAINTIFF.
C. A. CHAMBERS, ESQ;
FOR 2ND DEFENDANT.
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