|
JUDGMENT:
The Plaintiff by his writ of
Summons issued on 16th
June, 2006, claimed the
following.
1.
Recovery of possession of all
that piece and parcel of land
lying and situate at Achimota,
Accra bounded on the North West
by the Onorminorkor-Adang-Korle
We family land, measuring 1500
feet more or less, on the
South-East by the
Onorminorkor-Adang-Kole-We
family land measuring 1500 feet
more or less, on the North-East
by the Accra-Nsawam Road,
measuring 1500 feet more or less
and on the South-West by the
Onorminorkor –Adang-Kole-We
family land and comprising an
area of 51.653 acre and
registered in the Deeds
Registry ‘A’ as No. 880/1946.
2.
Damages for Trespass.
3.
Perpetual Injunction restraining
the defendant, their servants,
agents and assigns from
interfering with the said land.
The Statement of Claim that
accompanied the writ stated that
the Plaintiff was the head and
lawful representative of the
family of Emmanuel Joshua
Aryeetey (deceased) who owned
the land. The statement of
claim did not however state how
Emmanuel Joshua Aryeetey came by
the land. The Statement of
Claim stated further that the
defendant, without the consent
of the Plaintiff entered upon
the land and took possession.
Paragraph 6 of the Statement of
Claim stated further that “the
land had not been used for the
purpose for which the Defendant
took possession thereof.
In the Defendants Statement of
Defence, almost all the stated
facts in the Statement of Claim
were denied. The Defendant
however stated that the land on
which it is operating was
acquired by virtue of a
compulsory Government
acquisition. The Defendant
stated further that if the
Plaintiff had not been paid
compensation, then the Defendant
cannot be held responsible but
the Government being the
acquiring authority.
In the Plaintiffs reply to the
statement of Defence, the
plaintiff challenged the
Defendant on its claim that the
Government acquired the land for
the Defendant. At the close of
the pleadings the following
issues were set down for
resolution.
a)
Whether or not the Plaintiff is
the head and lawful
representative of the family of
Emmanuel Joshua Aryeetey
(deceased)
b)
Whether Emmanuel Joshua Aryeety
(deceased) was the owner of the
land in issue
c)
Whether or not the Defendant is
the beneficial owner of the land
in issue pursuant to a
compulsory government
acquisition.
d)
Whether or not any compensation
was paid to the Plaintiff
pursuant to any Government
acquisition of the land in
issue.
e)
Whether or not the Plaintiff is
entitled to his claim
f)
Any other issues raised by the
pleadings.
On issue ‘a’, the Plaintiffs
Attorney Rev. Maxwell Aryeetey
Foster gave evidence that the
Plaintiff was the head of his
family and after his death;
Justice Nii Aryeetey was
appointed as the new head of
family and was substituted in
his place. The Defendant was
not able to challenge this
evidence, and also did not put
forward any person as the head
of the plaintiff’s family. I
therefore accept the plaintiffs
case that Clement Dodoo Aryeetey
was the head of family and that
after his death Justice Nii
Aryeetey became the new head of
family. The Plaintiff therefore
has capacity to mount this
action.
On issue ‘b’ the burden was on
the Plaintiff to establish the
fact that Emmanuel Joshua
Aryeetey (deceased) was the
owner of the land in issue.
What is the land in issue? Form
the evidence of the parties, the
land in issue is the land on
which the Defendant has
establish or built estate
houses. The Plaintiff did not
state his root of title in his
statement of claim as was held
in the case of Ogbarmey-Tetteh
(1993-94) 1 GLR 353, but he
tendered exhibit ‘B’ which is a
conveyance of the land from one
Tetteh Quarcoo the then head of
the Onorminorkor-Adang-Korle-We
family. This exhibit B was
registered under the land
Registry Ordinance, (Cap 133)
the then existing law Act 122
relied on by the plaintiff’s
counsel is therefore not the
applicable law.
Section 21 (1) of Cap 133
provided as follows: Every
instrument executed on or after
the 24th day of March
1883 [except a will and except a
Judge’s certificate signed
before the commencement of this
Ordinance] shall so far as
regards any land affected
thereby take effect as against
other instruments affecting the
same land from the date of its
registration…”. There is
evidence before the court that
exhibit ‘B’ has been registered,
and therefore the plaintiff and
members of his family can rely
on it as the root of their
claim. What the Plaintiff
failed to prove is the identity
of this land. No boundary owner
was called to testify.
As a result of the inability of
the Plaintiff to positively
indentify the land covered by
exhibit ‘B’ and considering the
evidence of the Defendant to the
effect that the area that they
have developed into estate
houses does not fall within the
Plaintiffs land, the Regional
Surveyor of the Survey and
Mapping Division of Lands
Commission, Accra was appointed
to prepare a composite plan of
the land in dispute.
He was to plot the plan attached
to exhibit ‘B’ in relation to
the land covered by E.I. 61 and
to show whether exhibit ‘B’
falls within the land covered by
E.I. 61. The surveyor was also
to visit the land in dispute,
and to indicate whether any
portion of the land developed by
the defendant falls within
exhibit ‘B’.
After the completion of the
work, the surveyor explained
when he tendered exhibit CW1
‘A’, that he could not plot or
superimpose the plan attached to
exhibit ‘B’ on CW1 ‘A’, and gave
various reasons why he could not
do that. He however drew the
land claimed by the plaintiff on
exhibit CW1 ‘A’ as shown by the
Plaintiff.
From defence counsels
cross-examination of CW1, it
came out that the land showed by
the plaintiff to the surveyor is
bigger than the land contained
in exhibit ‘B’. Whereas in
exhibit ‘B’ the land is said to
be a square with the dimension
being 1,500 feet square, the
land shown by the plaintiff to
the surveyor was a rectangle
with the following measurements
PL3 to PL2 being 3090 feet. PL3
to PL4 measuring 1740 feet, PL4
to PL1 measuring 3370 feet and
PL 1 to PL 2 measuring 1480
feet.
Since this size is bigger than
what is contained in exhibit ‘B’
and it was the Plaintiff who
showed the land that they
claimed to the surveyor, counsel
for the Defendant asked the
surveyor to demarcate the 1,500
feet square land from the
Northern part of the land as
shown to the surveyor by the
Plaintiff on exhibit CW 1 ‘A’.
When this was done, it became
clear that the Plaintiffs land
falls outside the developed
land. The surveyor said there
was no encroachment by the
Defendant, if the demarcation of
the 1,500 feet square land is
measured from the Northern part
of the land shown by the
Plaintiff on exhibit CW1 ‘A’.
Since the Plaintiffs root of
title is exhibit ‘B’ and exhibit
‘B’ gave plaintiff a smaller
land, the Plaintiffs cannot
claim any land which is bigger
than what is contained in the
said exhibit ‘B’. If the
demarcation of the 1,500 feet
square land is pushed to the
North-West, of the land shown to
the Surveyor by the Plaintiff,
the Plaintiffs land will be
completely separated from the
Government acquisition as
contained in EI 61 and as shown
on exhibit CW1 ‘A’.
In the case of Nyikplorkpo vrs.
Agbodotor (1987-88) 1 GLR 165
the Court of Appeal relied on
the cases of Gawu III vrs.
Ponoku (1960) GLR 101 and Anane
vrs. Donkor (1965) GLR 188 and
held that “to succeed in an
action for declaration of title
to land, recovery of possession
and for an injunction, the
Plaintiff must establish by
positive evidence the identity
and limits of the land which he
claimed.
Since the Plaintiff has failed
to establish the identity and
limits of the land he claims and
showed a bigger land to the
surveyor other than what is
contained in exhibit ‘B’ I hold
that Emmanuel Joshua Aryeetey
(deceased) was not the owner of
the land that has been developed
by the Defendant into estate
houses.
With this finding, the
resolution of the remaining
issues will not be necessary.
This is so because the Defendant
has no counter-claim, and once
the land is not for the
Plaintiff the issue of
compensation will not arise.
I will however wish to state
that even if EI 61 was not made
in favour of the Defendant, the
Plaintiff cannot complain. Once
the acquisition was made under
the State Lands Act 1962 (Act
125) the land became public
land. By the authority of
Memuna Moudy and others vrs.
Antwi (2003-04) SC GLR 967, once
land is compulsorily acquired by
government the land vests
automatically in the government
upon a publication in the
gazette, and the acquisition
operates to bar and destroy “all
other estates, rights, titles,
remainders reversion,
limitations, trusts, and
interests whatsoever of and in
the lands acquired.” Its
management is placed under Lands
commission. It is Lands
commission that can complain if
anybody enters that land without
the consent of the Government
and can institute action against
the Defendant if the Government
had not permitted the Defendant
to enter the land. I therefore
dismiss the Plaintiffs claims.
Counsel:
Mr. Robet K. Tay for Plaintiff.
Mr. John Aidoo for Defendant.
(SGD.)MR. JUSTICE S.H. OCRAN
(Justice of the
High Court)
|
