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JUDGMENT:
In a writ of summons
and statement of claim filed on
8th May, 2006,
plaintiff alleged that, he is
the biological child and the
Administrator of the estate of
Ofori Appiah, who died on 3rd
May, 2004, and that the suit has
been brought in his capacity as
an Administrator.
He also averred as
follows:
“The plaintiff’s late father was
the true owner of the
land in dispute and plaintiff’s
father’s title to the land
is
evidenced by an indenture dated
the 26th July,
1985 stamped as AC 5485/85 and
registered at
Deeds Registry as
Land Registry No. 32000/551/85
and a search at the Deeds
Registry reveals that the
land belongs to plaintiff’s late
father.”
Plaintiff also made
allegations of acts of
possession and control it
exercised over the land as in
paragraphs 3, 4, and 5 of the
plaint.
He averred that his late father
took possession of the land,
then leased it to a church, and
subsequently ejected the church,
and deposited building materials
on the plot in a bid to develop
a structure on it, but was
unable to do so before he died.
Furthermore, the averments
of plaintiff is to the
effect that, he commenced work
on the plot, and requested the
defendant who is a fitter to
vacate the plot, but he refused,
and that the latter claimed he
had been put on the land by one
Sarah Odametey, a successor of
Emmanuel Quao Odametey.
In paragraphs 7 and
8, plaintiff averred that, there
was a boundary dispute on or
about 1996, between his father
and one Emmanuel Quao Odametey
and that the Chief Registrar of
Lands commissioned, the Survey
Department to carry out a survey
and to produce a composite plan,
and that the report produced
showed that Emmanuel Quao
Odametey had shifted his land or
site 50feet away from the edge
of the road and by that he had
entered plaintiff’s father’s
land.
In addition,
plaintiff made other averments
as he joined issue with the
defence, in a reply to
co-defendant’s defence and
counter-claim, filed on 26th
October, 2006. As well as an
amended reply filed on 30th
March, 2010.
He denied that, the Land Title
Adjudication Committee entered
judgment in favour of Emmanuel
Quao Odametey as alleged.
He denied that Emmanuel Quao
Odametey had ever been in
possession of the disputed land,
and never built a dwelling house
on it as alleged.
In conclusion, he denied
allegations of fraud made
against him and the father’s
estate, and averred that, he has
a perfect root of title to the
land; therefore the conveyances
pleaded by co-defendant are not
valid.
In paragraph: 6,
plaintiff averred as follows:
“Plaintiff says further that the
Land Title Registry cannot and
will not effect any registration
with respect to title to the
land in favour of co-defendant’s
nor co-defendant’s grantor as
they do not have title to the
land in dispute”.
On the other hand, the facts on
which the case of the defence is
based, is as found in the
defence filed on 30th
May, 2006 and the statement of
defence filed on behalf of the
co-defendant on 27th
July 2006, after the latter
applied and joined the suit.
The defendant denied every
material averment made by the
plaintiff, including capacity to
commence the action, and as well
as the allegation that the
disputed land belonged to
plaintiff’s deceased father.
In paragraph 4, the
defendant averred that Madam
Sarah Odametey put him on the
land and that she was the
rightful owner and had exercised
rights of ownership and control
over it.
The defendant denied
paragraph 7 and 8 of the
statement of claim, which were
to the effect that, the Land
Title Adjudication Committee,
made findings in favour of
plaintiff.
It was averred that on 17th
December, 1998, the Land Title
Adjudication Committee Tribunal,
rather entered judgment in
favour of Emmanuel Quao Odametey
and against Nana Ofori Appiah,
the father of plaintiff.
The defendants gave an
indication of a defence of
estoppel per res judicata, as
part of their defence.
Similarly, the facts
as per the co-defendant’s
averments showed that she has
denied the capacity and
authority plaintiff of to
commence this suit. She also
denied that plaintiff’s father
ever owned the disputed land,
and exercised the power of
possession over it.
Instead, co-defendant laid claim
to the disputed land and averred
that she is the lawful owner of
it.
In paragraphs 5 and
6, the co-defendant did not only
deny plaintiff’s claim as in his
paragraph 7 and 8, but, she also
traced the root of her title and
averred that a dispute that
arose between her father,
Emmanuel Quao Odametey and
plaintiff’s father had been
resolved in her father’s favour
by the Land Title Adjudication
Committee, she pleaded estoppel
as seen in paragraph 7 of the
defence.
Furthermore, in
paragraphs 9 and 10 of the
defence, co-defendant averred
that she is entitled to the
disputed land by virtue of the
customary gift made to her and
her sister, Mrs. Rose Nteshie
Brown by their father, Emmanuel
Quo Odametey.
And that her father got the land
by reason of a grant made to him
by the James Town Stool, through
its acting occupant, Nii Kojo
Ababio IV on the 16th
June, 1929, as evidenced by a
certificate of grant in her
possession.
Co-defendant,
further averred that, her father
took possession of the land
after the grant, built a
dwelling house on it and placed
her nephew Tawiah Odametey in
it. And that Akwei Bonsu Brown
was substituted for her father,
when he died, when proceedings
at the Land Title Adjudication
Committee, had not terminated.
She alleged she has continued
the process of registration of
the land and that it is still
receiving consideration.
In addition, she
made the averments to the effect
that, an Indenture dated 26th
July 1985, entered in the Deed
Registry record as number
32000/551/85, and registered as
Land Registry number 7338/1986,
executed between one Magnus
George Odametey and Ofori Appiah
was borne out of fraud.
Similarly, she alleged, the Deed
of Gift dated 30th
September, 1955, and registered
as number DR/45/1956, executed
between, one Winfred Edmund
Odametey and Magnus George
Odametey was tainted with fraud.
The particulars of
fraud were stated, and a
counter-claim for a declaration
that co-defendant is the lawful
owner of the disputed land, by
virtue of a customary gift, made
to her, by her late father,
Emmanuel Quao Odametey.
She also claimed a right to an
order of perpetual injunction,
and an order for the
cancellation of the fraudulent
lease granted aforementioned.
Below are the
reliefs endorsed on plaintiff’s
writ of summons:
(1)
Declaration of title to all that
piece or parcel of land lying
and being at Korle-Gonno, Accra,
and bounded on the North – West
by vendor’s land measuring
70feet more or less, on the
North – East by vendor’s land
measuring 90feet more or less,
on the South –East by Harper
Road, measuring 70feet more or
less and covering an approximate
area of 0.14 acre.
(2)
Damages for trespass to the land
in dispute.
(3)
An order to eject the defendant
from the said land.
(4)
Costs.
The triables issues
adopted and accepted, when
Application for Direction was
taken are these:
(1)
Whether or not the land, the
subject matter of dispute
belongs to plaintiff’s father.
(2)
Whether or not the defendant is
a trespasser.
(3)
Whether there is a valid Land
Title Adjudication Committee
Tribunal’s judgment that
operates as estoppel against
plaintiff
(4)
Whether the plaintiff is
entitled to the reliefs indorsed
on the writ of summons.
There are three additional
issues, they are:
(1)
Whether or not the plaintiff is
the Administrator of the Estate
of Nana Ofori Appiah.
(2)
Whether or not the land the
subject matter of this dispute
belongs to the defendant’s
grantor Madam Sarah Odametey.
and (3) Whether or not
the plaintiff is effectively
estopped by the
judgment and the records from
relitigating this
matter.
This court will
proceed to allocate the burden
of proof on issues: 1, 2, and 4
on the Direction to the
plaintiff. As well as issue: 1
of the Additional issues.
These issues involve,
declaration of title, damages
for trespass, and ejectment.
Plaintiff has alleged that as a
child of Nana Ofori Appiah
[deceased], and as the
Administrator of his estate,
land which is part of the estate
must be declared in his favour,
he is obligated to adduce
sufficient evidence in order to
merit the reliefs stated above.
The defence has to
establish issue: 3, on the
Direction, which is the same as
issue 3 of the Additional
issues. These two issues are
about whether or not plaintiff
is estopped by the judgment of
the Land Title Adjudication
Committee, made in favour of
co-defendant’s father.
The defence must prove issue 2
of the Additional issues, namely
whether the land which is
subject matter of the suit,
belongs to co-defendant, Madam
Sarah Odametey, the grantor of
the defendant.
The testimony of
plaintiff on the triable issues
showed that, Nana Ofori Appiah
deceased was his father, and
that he had obtained, Letters of
Administration in respect of his
estate, he tendered EXHIBIT “A”,
in support of that assertion.
The exhibit, is Letters of
Administration granted to, Kwesi
Ofori Appiah/plaintiff by the
District Court, Community
Centre, Accra, on 26th
October, 2004, in respect of
Nana Ofori Appiah’s estates.
The above is evidence of the
representative capacity of an
administrator of the estate of
his deceased father, led by
plaintiff.
Next, the testimony
of plaintiff touched on the
acquisition and possession of
the disputed land. His evidence
on the above is to the effect
that, his father bought a piece
of land from the Adotey family.
He gave the location of the land
as, Korle – Gonno, Accra. And
that, the deceased placed/or
permitted a church to occupy the
land.
Plaintiff asserted he has
personal knowledge of the acts
of possession, because, he had
visited the land several times
with his father.
Plaintiff tendered
EXHIBIT “B” in support of the
assertion that his father
purchased the land. The exhibit
is dated 25th July
1985, and Magnus George Odametey
of Accra is the vendor, and
Ofori Appiah of Accra, was
described as the purchaser. The
recital showed the root of
title, and it is one Winfred
Odametey of Accra, as donor, who
gave the land as a gift to
Magnus George Odametey, on 30th
September, 1955, and stamp No.
AC 4372/55 is shown on the face
of the document, as well as
registration No. DR 45/1956.
The consideration given has also
been stated as well as the
dimension, and location of the
land.
EXHIBIT “B” showed that, the
land is located at Korle-Gonno,
Accra and bounded on the North –
West by vendor’s land, measuring
70feet, North – East by vendor’s
land measuring 90feet, South –
West by Harper Road measuring
70feet, on the South – West by
vendor’s land measuring 90feet
and covering 0.14 acre.
The plan of the land, which is
part of the indenture, showed
the description and identity,
stated above. It has been duly
executed by the vendor and the
purchaser, with Alhaji Yusif
Odametey and, K Agyiri Quain as
witnesses for the vendor. And
Frank Yeboah witnessed for
plaintiff’s father the
purchaser. There is an oath of
proof annexed as part of the
document.
The copy of the
indenture was admitted in
evidence, as plaintiff asserted
that the original had been lost
in a fire disaster in their
home.
Evidence of acts of
possession took the form of the
assertion that a church was
permitted to operate on the land
and when, deceased was ready to
develop the land he asked the
church to cease their operation,
and when they left, he deposited
materials such as cement blocks
and sand on the land. Plaintiff
asserted the cement blocks were
arranged in the form of a wall
around the land.
Plaintiff also
testified to the effect that,
there were acts of interference,
when somebody shifted the block
from the original boundary, and
that his late father made
enquires at the Lands Commission
and the report he got revealed
or showed that, the acts were
unlawful.
Plaintiff offered EXHIBIT “C”
and “C1” in support. The first
of the two showed that a team of
surveyors visited the site at
Korle-Gonno, with both parties
and they were made to show their
boundaries. The exhibit showed
that by superimposition of the
various plans, Mr. E.Q. Odametey
had shifted his site plan 50feet
away from the edge of the road
and had moved into Mr. Ofori
Appiah’s land. This is an
observation from the team that
conducted the site inspection,
and drew EXHIBIT “C1”, which is
the composite plan.
A close scrutiny of
the composite plan shows that,
the land as per the site-plan of
plaintiff’s father (i.e. in
Green), and the site-plan of
Emmanuel Quao Odametey, the
father of co-defendant [i.e.
shown in violet colour], both
commenced at the edge of the
same block, but overlapped at a
point. And what they showed the
survey team, overlapped at point
“A” to “DD”, and point “B” to
“CC” which has been described as
the disputed area.
It follows that,
plaintiff’s father’s land did
not correspond on the ground, in
exact dimensions with what is on
his site-plan. And the same is
the case of the defence as well.
Besides, the
evidence that touched on the
dimensions and the identity of
plaintiff’s land as reviewed
above, plaintiff tendered
EXHIBIT “D”, which is a search
report from the Land
Commission. The search revealed
that:
(1) The site is not State
land. It however affects:
(a) Gift dated 30th
September, 1985 from W. E.
Odametey To: M. G.
Odametey
(b) Conveyance dated 27th
July, 1985
FROM: M. George Odametey
TO: Ofori Appiah
This search report, which is an
independent piece of evidence
from a State Institution, that
registers and keeps records of
instruments affecting land, has
confirmed the assertions
plaintiff made, and the
conveyance in the form of
EXHIBIT “B” which he had
tendered in evidence.
In addition,
plaintiff denied the averment to
the effect that there was a
valid and final determination of
the dispute that arose between
his late father, and
co-defendant’s father, he also
denied the fact that his father
was adjudged the loser.
He asserted the adjudication had
not been completed, before his
father died. He denied that,
the defendants’ exercised acts
of possession over the land, and
that no dwelling house was built
on it as alleged, and that it
was only the fitter, who had
used his father’s blocks to make
a structure, which structure he
occupied. He asserted he had
deposited materials on the land
but defendants have obstructed
him, when, he tried to develop
it.
John Essel was
called by Plaintiff, (as PW1)
his testimony showed that he
knew Plaintiff’s father, and
that, he had taken him to the
land on three different
occasions.
He gave the time he got to know
the deceased father of plaintiff
as the 1980s, when he was
working with the Railway
Corporation and that he knows
plaintiff too. His evidence is
that, the land is located at
Korle- Gonno, and that he saw a
wooden structure on it,
belonging to a church – ‘Kanewo’
– a Pentecostal church. The
evidence showed that, he saw
cement blocks and sand also on
the land.
His account also showed that, on
the second visit to the land
with the late Nana Ofori Appiah,
he informed the church of his
intention to develop the land
and on their third visit the
church structure (wooden church
building] had been demolished.
He concluded, whilst the
deceased was still mobilizing to
develop the land he died in
Takoradi, on a trip there.
Thus the identity of
the land in terms of its
location, acts of possession and
control – that is, the authority
to the church to operate, and
the removal of the church, and
materials deposited on it, are
what PW1 offered in support of
plaintiff’s case.
Plaintiff whiles
under cross-examination could
not remember, the year and the
person from whom his father
acquired the land. He could not
even remember the year his
father died and he forgot also
when he got the Letters of
Administration to administer his
estate.
But he maintained as
a child, he had been visiting
the land in the company of his
father, and that it was his
father who for eight years
permitted the church to operate
on the land.
Again, he maintained
the assertion that, the hearing
before the Adjudication
Committee, did not end before
his father died, because he was
sick and could not attend most
of the sittings of the
committee.
In the
cross-examination of plaintiff
the following line of defences
have been identified.
Firstly, the defence has denied
that plaintiff’s father had ever
been in possession and never
exercised possessory right and
control by putting licensee or
others on it, and never received
rent in respect of the disputed
land.
Secondly, it was suggested,
plaintiff never visited the land
as alleged, and by that the
Court was invited to hold
inferentially that, he never had
personal knowledge of the
assertions he has made in that
regard.
The means by which
the defendants got the land was
put to the plaintiff, it was
stated, Abraham Adotey, the
defendant was put on the land by
co-defendant, Sarah Odametey,
who was granted this land by her
father. It was also alleged in
1986, there was a dispute over
boundaries between plaintiff’s
father and co-defendant’s father
these are the questions put to
plaintiff and his answers:
Q. In 1986, there was a
dispute over boundaries with
your father and co-defendant and
it ended at the Title Registry.
A. I do not remember.
Q. But you said there was
a dispute between your father
and co-defendant’s father.
A. It was the shifting of
the blocks that led to that, but
that was not the dispute that
ended at the Land Title
Adjudication Committee.
The fact that, plaintiff’s
father lost the case at the
committee hearing was put to
him, but as noted, he denied
this.
Thus title which has
its roots in what co-defendant’s
father had, and what, the Land
Title Adjudication decided in
his favour, is what the defence
has put forward
Turning to
cross-examination of PW1 – John
Kwaku Essel, he was tested on
WHEN – i.e., TIME and from whom
the acquisition of the land was
made – i.e., source of
plaintiff’s title, and the
dimensions of the disputed land.
The answer, he offered showed
that it is his assertion that,
he knew plaintiff’s father for
20 – 25 years before his death,
and knew the plaintiff for 5
years. That he first visited
the land with the deceased in
1990s and visited the third time
in 2001, February he asserted,
the land plaintiff is claiming
is one plot.
On the other hand
Abraham Adotey, the defendant
asserted that, co-defendant –
Sarah Odametey gave him
authority to operate his
mechanic shop on the land in 1st
September, 2002. He denied
knowing, Nana Ofori-Appiah, but
stated he saw blocks that may be
5,000.00 or so on the land, as
well as sand, which has been
eroded.
He asserted there was no church
on the land when, he entered in
2002, but admitted meeting
plaintiff in 2004.
The defendant gave
explanations, when confronted
with the case for plaintiff. He
stated he didn’t know how
plaintiff’s father dealt with
the land, before he entered it.
And that he cannot tell whether
a church had operated on the
land before.
On his encounter
with plaintiff, he stated, he
came, and showed him a
photograph of an old man, in
mouthstach claiming that was his
father and owner of the disputed
land, but he did not believe his
claim to the land, because it
was co-defendant, who gave him
permission to enter and operate
the shop there.
Plaintiff’s case was
put to him directly, when he was
cross-examined to the effect
that the land was bought by
plaintiff’s father who had it
registered, but the defendant
stated he cannot tell whether
the assertions are true or not.
The co-defendant in
a bid to establish title to the
disputed land, asserted her
father got the land from Nii
Kojo Ababio IV – James Town
Mantse, in 1929, and that the
grant has been recorded on a
receipt, she explained that,
those days documents as
indenture are unknown.
She gave her father’s name as
Emmanuel Quarcoopome Odametey,
but was also called Emmanuel
Quao Odametey.
Furthermore, she
asserted, she first saw the
certificate, in 1991, when
someone trespassed on the land
and processes were being
prepared to institute action
against the trespasser.
Co-defendant named Nana Ofori
Appiah as the trespasser. She
testified to the effect that,
her father had built a temporary
structure on the plot.
In continuation she stated:
“When my father got the land, he
made a temporary structure on
the first plot, and gave the
structure to his nephew Tawiah
Odametey to stay in. In respect
of the other two plots, he
deposited sand and stones and
blocks with a view to fence it.
But he was unable to build the
wall until he died.”
In addition, co-defendant,
described the location of the
land, as being situated at
Kitson-Mills road – Accra, Korle
Gonno, and that, the land is
three plots in all.
The other assertion
made, are steps allegedly taken,
by co-defendant’s father to
protect the land.
The record showed that, the
dispute with the trespasser and
others who laid claim to the
land, went before, the Title
Adjudication Committee, and she
got involved in it, at a later
stage. She asserted, Nana
Ofori-Appiah’s attendance at the
hearing was not regular, but he
had legal representation, but
lost the case.
EXHIBIT ‘1’ the
proceedings and record at the
Adjudication Committee showed
the following:
1.
That there was a dispute between
Emmanuel Quao Odametey and Ofori
Appiah, who were described as
claimants, and a case/matter
under, the Land Title
Registration Law, 1986, [PNDCL
152] fell for determination.
2.
The complaint about this dispute
was lodged on 15th
May, 1992 by co-defendant’s
father and on 22nd
October, 1992 Ofori Appiah, also
lodged his complaint. And
reference for adjudication was
made on 5th May,
1994.
3.
EXHIBIT ‘1’ also showed that on
12th September, 1995
Dr. A. Q. A Archampong, who
represented co-defendant’s
father, filed, his claim before
the adjudication committee.
In it the root of title and the
character of the disputed land
were stated thus:
(a) Emmanuel Quao Odametey
is a Ga and a subject of James
Town (Ngleshie) Stool, that in
1907, following the Bubonic
plague that ravaged Accra,
killing people, the colonial
Government encouraged young
virile men to move out and
establish suburbs, hence the
three Quarters: NGLESHIE ALATA,
SEMPE and AKUNMAJAY; settled at
Korle-Gonno, Korle-Bu and
Abossey Okai, respectively.
The claim showed that, the
composite James Town Stool
issued to everyone, who has been
so settled as described above is
a Certificate of Grant. Nii
Kojo Ababio IV was mentioned, as
the chief.
Then paragraph 9, of the claim
reads:
“In this regard, precisely on
the 16th day of June
1929, the James Town Stool with
the advice and consent of the
sub-chiefs, councilors, elders,
Asafoatsemei and Linguists
formally granted EMMANUEL QUAO
ODAMETEY, the 1st
claimant herein the land the
subject-matter of this Juridical
Enquiry, and issued him with the
certificate of grant now
produced in evidence, a
photocopy of which has been
filed and is on the docket.”
4.
EXH ‘1’ has a schedule, and in
it Dr. A. Q. A. Archampong,
stated the identity of
co-defendant’s fathers land as
this:
“The plot of land is situate at
Korle-Gonno, Ababio’s new
settlement, measuring 100feet by
94feet [as per the plan
attached] for Building and
Dwelling purpose only and not
otherwise.”
5.
Still on EXH ‘1’, on 17th
December, 1998, the Land Title
Adjudication Committee, gave
judgment, per its chairman, Mr.
R. I. Quansah, it reads:
“There is no doubt that the
first claimant is a beneficiary
of some land described in the
statement of case. The second
claimant who has refused to be
present but represented by a
lawyer has for a very long time
not shown any interest in the
said suit. Relying on the
evidence of the first claimant
as stands on record without any
challenge, we recommend that the
first claimant be registered as
the owner of all that piece and
parcel of land particularly
described in the statement of
case.”
I must add that, the
statement of claim filed by Nana
Ofori Appiah, the father of
plaintiff in his case, is the
same as the claim in this suit.
The statement of claim referred
to supra, is part of Exhibit
‘1’, before this Court. As
regards the statement of defence
the co-defendant-vis-à-vis, the
statement of claim his father
filed on 12th
September, 1995, this will be a
subject of detail analyses,
after, the rest of her evidence
and that of her witnesses have
been outlined.
The above, is
evidence of root of title dating
back to almost what is known in
legal parlance as, TIME
IMMEMORIAL, it showed a source
of title which is a customary
law grant made by the James Town
Ngleshie stool in1929. The size
or dimension and location have
been made bare.
In addition,
co-defendant, tendered EXHIBIT
‘2’ in support of her, assertion
that, she had capacity and
authority to prosecute this
defence on behalf of her late
father’s estate.
Her evidence is also to the
effect that, the Land Title
Registry requested an indenture,
in support of the 1929 grant
before, they could deal or
process the title registration.
And that they went back to the
James Town Stool, and EXHIBIT
‘3’ was made as a result. This
exhibit is dated 1st
January, 2001, and on the face
of the record, made between, the
lessor-stool, and Emmanuel Quao
Odametey who had been described
as the LESSEE. It is for a term
of 99 years. Oblempon Nii Kojo
Ababio V has signed and Nii
Ngleshie Addy I – Adontehene
signed as witness.
And also, the name of Emmanuel
Quao Odametey, as the other
party is there, it is
represented that, he also signed
or executed the document in the
presence of witnesses; and the
name Sarah Odametey, who
certainly is the co-defendant
also appeared as one of these
witnesses.
In the accompanying site-plan,
dimensions of the land have been
stated.
It does appear, those
dimensions, are not the same as
what was stated in the
indenture, and the 1995 claim
referred to supra.
Counsel for
Plaintiff cross-examined
Co-defendant on how Exhibit ‘3’
was made, the examination
touched on identity of the land
co-defendant is claiming. The
examination focused on the case
dealt with by the Land Title
Adjudication Committee in terms
of parties and the nature of
co-defendant’s father’s claims,
he placed before the committee.
It could be gleaned that,
plaintiff confronted
co-defendant with his claim, in
an attempt to discredit her, and
to show that he has a better
title to the land that he is
claiming. The details, shall be
reviewed, after looking at
co-defendant’s answers to these
questions.
The record showed
that co-defendant stated her
father died on 17th
September, 1996, and the Land
Title Adjudication Committee,
disposed the case off in 1998.
She then disclosed that, the
signature on EXHIBIT ‘3’ – the
Indenture is not her father’s
signature, this was after she
was grilled on the fact that she
got the exhibit – i.e. EXHIBIT
‘3’, made by representing
wrongly to the James Town Stool,
the information on the grant
contained in it. She
was challenged on how somebody
who died in 1996, could sign an
indenture in 2001, as shown on
the face of EXHIBIT ‘3’.
Furthermore, the
record showed that, it is
co-defendant’s case that, the
location of her father’s land is
a place inhabited by indigenous
Ga’s only, this is an attempt to
show that plaintiff could not
own land there.
In addition
co-defendant, asserted that the
entire land, she is claiming is
135feet x 105feet, and is made
up of three plots in all, and
that parts of this land belonged
to her sisters; and that, the
plots of land were given to them
by their father.
In continuation, co-defendant,
further asserted, her father had
three plots, out of which one
was given to Mr. Tawiah her
brother, one to her sister and
the last one to her good self,
and on Tawiah’s plot, the
deceased built a house on it,
with galvanized material.
The co-defendant
answered series of questions
asked of her on the nature of
the claim and proceedings, and
ruling at the Adjudication
Committee, to show that she was
at the hearing, but there is
evidence on the record which
showed that, she had alleged
earlier on that, she had
participated in the hearing at a
later stage.
She accused
plaintiff of stealing her
father’s land, and therefore,
has no land in the area; and
that the dispute she has with,
plaintiff is not a boundary
dispute as being suggested by
the plaintiff and his counsel.
And yet another
material assertion she made is
that, plaintiff did not buy the
land from the rightful people,
she acknowledged the fact that
plaintiff had registered his
land, but she attributed that to
the attempt by plaintiff to
appropriate his father’s land.
Counsel for
plaintiff, challenged
co-defendant on her claim that,
EXHIBIT ‘3’ has been made, and
constitute a valid document that
evidenced conveyance of the
interest (leasehold) to her
father, by stating that, a dead
person cannot be a party to such
a transaction, because in
January 2001, her father, by her
own account was long dead.
It is because of this challenge
which took the form of series of
questions that Co-defendant
admitted his father, did not
sign Exhibit ‘3’
The conduct of co-defendant as
seen above, is not only a
contradiction, but amount to
illegality, which she tried to
foist on this court, and the
Land Title Registry. The
document as a result is
intrinsically flawed, and void
for all purposes if conveyance,
and has no legal effect.
Secondly, EXHIBIT
“1” tendered by co-defendant was
tested, it was rightly said that
it contained information on the
fact that the 1929
receipt/document is in respect
of one plot only.
Even though, co-defendant, has
denied this, that is exactly the
case; EXHIBIT “1” is about land
which is 100feet x 94feet, it is
not plaintiff’s land which has
the dimension cited above, the
claim filed by Dr. Archampong
for co-defendant’s father in
1995, contained averments
to the effect that the dimension
of the plot was 100feet x
94feet. This court has made a
number of observations on
EXHIBIT “1”, earlier in this
judgment, and what I have found
on the evidence is the same as
those earlier observations, on
what EXHIBIT “1” represents.
It follows without
saying that EXHIBIT “3” is some
kind of self betraying
falsehood, concocted in 2001, to
over reach plaintiff, and
encompass his father’s land into
adjoining plot(s).
Thirdly, on the
nature of the claim which was
the subject matter before the
Land Title Adjudication
Committee.
It is plaintiff’s claim that,
the dispute was about boundaries
only and not title. These
questions and answers illustrate
the issue as raised with the
co-defendant.
Q: The so called case you
spoke about, is it the
Adjudication
Committee hearing/case.
A: Yes, but we went to
court at Cocoa – Affairs, and
there it ended.
Q: What you are referring
to was a Land Title
Adjudication
hearing, it was about the
determination
of boundaries.
A: Yes.
On 26th November,
2010, when the cross-examination
was conducted, co-defendant as
seen in the record tried in vain
to deny the fact that plaintiff
made available his site-plan, to
a survey team, that, the Land
Title Adjudication Committee,
mandated to draw a
composite-plan, to facilitate
the resolution of the dispute.
Co-defendant’s
answer in respect of the nature
of dispute, whilst under
cross-examination, on the same
day does not portray her as a
credible witness. She was asked
this question on the issue:
Q: I put it to you that
in your father’s lifetime, the
dispute he had with Ofori Appiah
was boundary
dispute only.
And co-defendant
answered as follows:
A: Not correct, the
dispute was over title.
Q: Your father accepted
the fact that Ofori Appiah has
land there.
A: Ofori Appiah has no
land there, if that was the
case,
my father would have told me…
Q: In 1985 – Ofori Appiah
registered his title deed that
is (11) eleven years before your
father died.
A: He stole the land and
quickly registered it….
Plaintiff’s counsel
denied that plaintiff’s father
stole the land significantly,
co-defendant in one breath
agreed the dispute is about
boundaries, and in the same
breath disagreed.
Co-defendant, denied dates on
which her father and plaintiff’s
father lodged their respective
complaints or lodged their
documents for registration, as
seen in EXHIBIT “1”, which is
her own document.
It was on 15th May
1992, that her father lodged his
document, and it was 22nd
October, 1992, that plaintiff’s
father also lodged his. These
dates are apparent on the face
of EXHIBIT “1”, which is
co-defendant’s documentary
evidence, but she sought to deny
these.
This is another blatant
contradiction seen in
co-defendant’s case.
In the number of observations, I
made an EXHIBIT “1”, when I
reviewed, co-defendant’s
evidence-in-chief, I have found
the facts as they were put to
co-defendant, her denials are
not true, I hold accordingly.
In this trial, the
question of title has arisen,
and in the allocation of the
burden of persuasion this has
been stated.
However, whether it is TITLE or
BOUNDARY which is in dispute,
will be determined shortly, upon
the analyses of the testimony
of, FRANK WONTUMI, the court
witness, who testified on 12th
June, 2008.
The work of the
court witness, who is an officer
from the Survey Department –
Greater Accra Region (now Survey
Division of the Land
Commission), was carried out
with the best technology, namely
the Global Positioning System,
he drew a composite plan based
on two separate site-plans
submitted by the parties.
Plaintiff’s site-plan are AC
5485 and No. 7338/1986, as in
his registered document, is what
the submitted. The defence,
submitted, an unregistered
site-plan.
Both parties
cross-examined the court
witness, his testimony and work
has not been discredited. The
points designated PL1, PL2, PL3
and PL4 gave the dimension and
identity of plaintiff’s land,
this has not been controverted.
Similarly, DF1 and DF2, gave the
dimension and identity of
defendant’s land, with PL1 and
PL4 of plaintiff’s land, falling
on or being what defendant has
also shown. This is how he
explained it.
Q: Are you suggesting the
defendant showed you only
two points.
A: No, they showed more
that two, but the other edge is
the PL1 and PL4, shown by
plaintiff, so to avoid confusion
DF3 and DF4 was not written
there, they showed similar
points as it were.
Q: You are saying in
respect of physical pointing
defendant showed her land and
that of plaintiff too.
A: Yes.
Q: But from even this,
the boundaries she showed are
different from boundaries shown
by her own
site-
plan.
A: Yes.
In other words co-defendant had
shown land which is different
from her site-plan.
The examination as
reproduced above, is what
counsel for plaintiff did, the
examination of him by defence
counsel did not show anything
different, he was neither
discredited nor controverted on
the work he did.
However, he pointed out
discrepancies on what was shown
physically and what the
site-plans on both side
revealed.
EXHIBIT “CW1” – the
composite plan, is materially
different from, EXHIBIT “C” and
it accompanying site-plan, which
is also a composite-plan,
produced by then Director of
Survey on or about 7th
March 1996.
The testimony of DW1
– James Amo Odametey, was told
with a lot of passion the old
man appeared to be truthful, but
his evidence suffers from the
same contradictions and
conflicts found in respect of
co-defendant’s evidence.
His testimony contains, nothing
that can change, what the
Government surveyor found.
The findings made to
the effect that, plaintiff had
his land and co-defendant also
had hers with some overlapping,
is upheld.
On the aggregate of evidence,
and findings made already, this
suit before this court is about
boundary dispute and not about
title to land.
Thus, land which was
100feet x 94feet in 1929, has
been properly drawn and
represented on the ground in the
composite plan, drawn by the
Survey Department in 1996. At
the time an overlap was found.
But in 2007 as per points
designated DF4 and DF2 and PL1
and PL4, co-defendant, had laid
claim virtually to the whole of
plaintiff’s land, this is the
reason why EXHIBIT “C” is
different from EXHIBIT “CW1”.
In the whole of her
pleadings co-defendant did not
indicate the dimensions of her
land even in the counter-claim.
However, it is apparent, her
testimony and claims in this
court [as reflected in EXHIBIT
“CW1” the court witness
evidence] is a contradiction in
terms.
The claim to 135feet x 105feet
or three plots is in conflict
with what is in EXHIBIT “1”,
which is co-defendant’s own
evidence too.
Following from the
above, it must be stated that a
party cannot at a trial set up a
case inconsistent with his
pleadings.
And a trial court is enjoined to
take into consideration
inconsistent evidence, from
pleadings, cross-examination and
evidence –in – chief, as has
been held in the case:
APPIAH VRS. AKER TRADING CO.
(1972)1 GLR 28
However, co-defendant has
established her right to a
customary grant, as evidenced in
EXHIBIT “1” dated 1929, from the
James Town stool.
In respect of that land,
co-defendant’s has title, title
which connotes a right to
property and this right is
considered with reference either
to the manner in which the
interest has been acquired or as
to its capacity of being
effectively transferred. Title
to land may take the form of
possession or document(s).
In this case the
Land Registry Act, Act 122, Land
Title Registration Law (1986)
PNDCL 152 and the Conveyancing
Decree, NRCD 175, are
applicable.
It is noted, a good title as
defined in section 23(5) of the
Land Registration Law, 1986
[PNDCL 152], is one founded on
documentary evidence. But in
Ghana a customary grant, has
long been recognised to confer
good title, if the grant is
valid according to that
customary law and the grantee
has been in effective possession
of the land for a period of
thirty years – section 36 (1) of
the Conveyancing Decree, 1973
[NRCD 75], refers.
Section 46 (1) (f)
of PNDCL 152 also makes
exception for valid customary
law grants. The section
provides, that a registered
title may be defeated by fraud
and that it is also subject to
overriding interest such as
rights acquired by customary
law.
The section cited above is
definitely a codification of
case law as found in many cases,
notable among them is ANYIDOHO
VRS. MARKHAM (1905) Ren. 318 FC
where it was held a customary
transfer of land was unaffected
by registration of any
subsequent documentary
conveyance. Because an
effective customary conveyance
divest the grantor of any
further right or interest in the
land.
Besides,
co-defendant has raised a
defence of estoppel, this is a
defence which is maintainable,
where a final judgment had been
given, in an action, a court
will have no jurisdiction and it
will not permit the same parties
to re-open, the same, subject
matter of the litigation in
respect of the previous action
unless so empowered by statute.
However, where the validity of
a previous judgment was put in
issue, either on the ground of
fraud or lack of jurisdiction,
the previous judgment could not
be a bar to subsequent
proceedings, BISSAH VRS. GYAMPOH
II (1964) GLR 381 SCT and
ASSAMPONG VRS. AMOAKU (1932) 1
WACA, 192, refer.
In 17TH December,
1998, judgment of the
Adjudication Committee, the
details which have been quoted
supra, showed that
co-defendant’s father has
established title to the parcel
of land he was claiming. And
reference was made to the land
as described in the statement of
claim, annexed thereto.
The salient parts of it has been
cited supra, but suffice it to
state that, the subject matter
plot was described as situated
at Korle – Gonno, Ababio’s – New
settlement, measuring 100feet by
94feet.
The plaintiff’s
father was sufficiently
represented at the hearing [by
lawyer Nyamekye Baah] and is
bound by the decision of the
Adjudication Committee;
therefore the under-listed
characteristic of a defence of
estoppel have been established:
(1)
That the judgment dealt with the
cause of action and the relevant
issue, before it
(2)
That the judgment was final.
(3)
The judgment came from a court
of competent jurisdiction. (i.e.
judicial body)
(4)
The parties in the previous
litigation are virtually, the
same as in the current
litigation, they are privies
because both plaintiff and
Co-defendant are administrator
of their fathers’ estates.
Consequently, it is
100feet x 94feet, which is the
dimension of the land that
Co-defendant is entitled too,
and not three plots as she is
claiming in this suit.
On the other hand
plaintiff by his testimony and
the aggregate of evidence, and
documents EXHIBIT “B”,
especially, has not only
established a right to the land
he is claiming, but has rebutted
and defeated the claim of
Co-defendant, in respect of
three plots that she is
claiming.
However, there is a caveat, at
any point that plaintiff’s land
overlapped, Co-defendant’s
customary law grant of 1929 it
is the customary grant that will
override the subsequent grant
plaintiff’s father got,
notwithstanding the fact the he
might have registered his
grant.
I refer to the case:
BROWN
VRS. QUARSHIGAH (2003/4) SCGLR
930.
Holding 3 of that case, in part,
is relevant to the issue. The
court held:
“And a customary law transfer of
land could not be
defeated by registration of any
subsequent
conflicting documentary
conveyance.”
The following
findings have been made:
(1)
The defence has failed to
establish fraud against
plaintiff.
(2)
But has established the defence
of estoppel per res judicata,
against plaintiff in respect of
one plot measuring 100feet x
94feet, as per the judgment of
the Land Title Adjudication
Committee.
(3)
The co-defendant has also
established her right to a
customary law grant made to her
father in respect of James Town
stool land, granted in 1929, as
in EXHIBIT “1”. But she failed
to establish that she exercised
possessory right and control
over three plots or a larger
piece of land than what has been
found.
(4)
Plaintiff has established his
capacity as a successor of his
deceased father, and the
administrator of his estate.
(5)
He has successfully rebutted the
averments of fraud and
assertions of appropriation of
the land he is claiming as in
the endorsement on the writ of
summons.
(6)
On the preponderance of the
probabilities, plaintiff has
discharged the burden of proof
on him in respect of issues: 1,
2, and 4 in the Direction and
issue 1, in the Additional
issues.
BY COURT:
(1)
This court enters judgment in
favour of plaintiff for
declaration of title to the
disputed land, with a proviso
that, the dimension of the land
at the point PL3 to PL2, shall
be amended and plotted to
reflect the decision of this
court.
(2)
Plaintiff is entitled to general
damages for trespass, he has
been prevented from entering his
land unjustifiably by defendant
and Co-defendant who sought to
claim land larger than they are
entitled to. I assess general
damages in the sum of GH¢
2,000.00 in favour of plaintiff.
(3)
This court enters judgment in
favour of Co-defendant for the
land measuring 100feet x 94feet,
granted to her father Emmanuel
Quao Odametey in 1929, as found
by the court.
(4)
This court orders that, both
parties be restrained from going
beyond land that has been
declared in their favour. And
co-defendant, defendant and all
persons claiming through her,
shall vacate all that portion of
the disputed land that they have
laid adverse claims to forthwith
pending the plotting and
redemarcation of the adjoining
boundaries.
(5)
Furthermore, it is ordered that
when the redemarcation is
concluded, the Lands Commission
shall amend its records in line
with the decision of this court,
upon application to it by the
parties.
(6)
There is no order as to cost.
(SGD.)N. M. C. ABODAKPI
JUSTICE OF THE HIGH COURT
ALBERT ADARRE FOR PLAINTIFF –
PRESENT
FIONA ADJEI FOR DEFENDANTS -
PRESENT
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