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J U D G M
E N T
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Plaintiff, who claims to be the
head of Forzie family of
Terkpanya old Ningo, on his own
behalf and on behalf of the said
family instituted the instant
action claiming declaration of
title, perpetual injunction and
general damages against 1st
and 3rd defendants as
well as declaration that a
vesting assent dated 24th
February 2005 executed in favour
of 1st defendant be
pronounced null and void and of
no effect and also prayed for an
order cancelling the said
vesting assent. There is yet
another relief against 3rd
defendant to the effect that a
lease document executed by 3rd
defendant dated 10th
October 2004 be declared null
and void and a further order
directed at 2nd
defendant (Lands Commission) to
expunge the plotting and the
registration of the lease
document from their records.
Plaintiff averred that his
forefathers are the beneficial
and legal owners of a large
tract of land at Terkpanya which
land is bounded by the Tema
Aflao motorway on the North, the
Prampram Traditional Lands
(site for proposed road on the
West); by the TA River on the
South-East by the Dangbe Lagoon;
on the East and by the Lakpleku
Osabunya family lands.
He claimed his
forefathers acquired the land
through settlement over 300
years ago and have since been in
possession by rearing of cattle
and farming food crops and have
also constructed a big dam which
serves as a source of water for
the inhabitants of old Ningo and
its surrounding villages till
date.
In addition,
plaintiff averred that, the
Forzie family has established 40
settlements or sub-villages some
of which were named as Akahie,
Namoe, & Mglame and Kpobino.
Plaintiff averred
further that the Forzie family
has spent a lot of money in
terms of maintaining and
developing structures on the
land including 33 bedroom houses
on portions of the land as well
as fortifying structures around
eight (8) shrines in the
village.
Plaintiff averred
that a vesting assent dated 24th
February 2005 which is numbered
V 4018 and registered as AR
3036/2005 made in favour of 3rd
defendant affected a portion of
his family land and that none of
his predecessors or any member
of his family has granted any
portion of the land to any
person or group of persons for
the latter to execute any
vesting assent in favour of 1st
defendant.
Plaintiff averred
that another document, a lease
dated 10th October
2004 plotted as No. V5380 and
registered as No. AR No.
7898/2005 executed by 3rd
defendant affected a portion of
the family land and that neither
his predecessors, himself nor
any member of Forzie family has
ever executed any lease
agreement or any document to the
3rd defendant.
It is on these
premises that plaintiff has
sought declaration of title,
perpetual injunction, damages
for trespass against 1st
and 3rd defendants
and
has also prayed for cancellation
of the vesting assent and the
lease document.
1st
defendant who claims to be the
chief of Dawhenya and also the
head and lawful representative
of the Arden and Darpoh family
of Dawhenya denied plaintiff’s
claims.
1st defendant averred
that that portion of the
disputed land which falls before
mile post 30, as determined by
the Jackson Proceedings and
Report of
1956, lies within Prampram Lands
and that the plaintiff being a
native of Ningo cannot lay claim
to any portion of Prampram
Lands, and that following the
publication of the Jackson
report, boundary pillars were
erected along the Prampram-Ningo
boundary along mile 30, and the
pillars have remained in
existence up to date. 1st
defendant averred that
plaintiff’s family has never
challenged the Jackson Report
and the boundary pillars erected
along the mile post 30.
1st
defendant then pleaded estoppel
by conduct and estoppel by
laches and acquiescience,
contending that plaintiff is
estopped from denying that the
portion of the disputed land
which falls before mile post 30
are within Prampram Lands and
cannot be claimed by a Ningo
native.
1st
defendant averred that the Arden
and Darpoh family who emerged
from Olowe-Charwenya clan who
first settled on a vacant land
they christened Ososhie village
acquired the disputed land many
years ago.
As a result of
growth of the people, 1st
defendant averred, the Ososhie
village expanded in size to
encompass the area near the
Dawhenya stream where one of the
ancestors called Nii Kwablah
Arden first erected a house for
one of his wives by name Maa
Esmay to sell Kenkey to
travelling traders who plied the
route on foot.
Thereafter the Arden
and Darpoh family continued in
undisturbed and unchallenged
possession and occupation of the
said land and through
farming and cattle rearing
activities expanded their land
to such areas as Kokoome-Kpo,
Bulaaso, Gmaku-dor, Santo-dor,
Taa-dor and Ladoku.
1st
defendant contended that
plaintiff’s family has no land
in the area before mile post 30
and that plaintiff‘s family has
no proprietory title or interest
whatsoever in the disputed land
or any part thereof, contending
further that the area plaintiff
described as Terkpanya lies far
away in Ningo a
substantial distance away from
mile post 30, i.e, the
Prampram-Ningo border.
1st
defendant vouched for the
propriety of the Vesting Assent
as having come from the Arden
and Darpoh family who are
beneficial owners of the land
under reference herein.
1st defendant
emphasized that the disputed
land which lies before mile post
30 is the bona fide and
legitimate property of Arden and
Darpoh family, whose ancestors
acquired same by settlement many
years ago and have since
exercised overt acts of
ownership thereon without let or
hindrance.
In pursuance of their ownership,
1st defendant
averred that the family has made
various grants to many persons
and institutions including
Western Ally Company Ltd, one
Emmanuel Armah and Central
University College.
The aforesaid grant to the
Central University College was
effected in collaboration with
the 3rd defendant.
1st defendant alluded
to judicial
proceedings/decisions wherein
the fact of the Arden and Darpoh
family’s ownership of the
disputed land lying before mile
post 30 was pronounced upon
and/or acknowledged.
In the premises, 1st
defendant, in his capacity as
head and/or lawful
representative of the Arden and
Darpoh family counterclaimed for
declaration of title to all that
tract of land known as Arden and
Darpoh family land bounded on
the North by the Tema-Aflao
motor road, on the
East by Ningo-Prampram boundary
from pillar BIS EP/14/55/26
(mile 30), on the South by Numo
Awuley Kwao family (miotso), on
the west by Arden
and Darpoh family land; damages
for trespass and perpetual
injunction.
3rd defendant also
denied plaintiff’s claims. It
was stated that 3rd
defendant is the head and lawful
representative of Awuley Kwao
family of Miotso in Prampram and
that the entire land between
Central University college at
mile 27 leading eastwards up to
mile 30 belongs to Awuley Kwao
family and neither plaintiff nor
1st defendant owns
any land there.
3rd defendant averred
that by the Jackson Report, land
belonging to Prampram ends at
mile 30 and the area of Ningo
commences after mile 30.
It was further stated by 3rd
defendant that the Jackson
report which was
published in the Gazette
Extraordinary (No. 52) of 3rd
August, 1956 the land falls
within the range of mile 22 to
mile 30, being the boundary
between Prampram and Ningo
lands, contending that natives
of Ningo cannot therefore claim
land within the perimeter of
mile 22 to mile 30.
3rd defendant averred
further that the Awuley Kwao
family has granted over seven
hundred acres of land within the
vesting assent area of Kwaku
Darpoh I as it’s family land to
one Tony Alhassan Adams for
which reason the 1st
defendant had by a letter dated
11th April, 2006
written to the regional Lands
Officer to plot same
notwithstanding the 1st
defendant’s registered vesting
assent.
At the close of pleadings the
following issues were set down
as the issues for trial. They
were:-
(i)
Whether or not plaintiff’s
ancestral family settled on the
disputed land well over 300
years ago.
(ii)
Whether or not 1st
defendant’s family, that is the
Arden and Darpoh family acquird
the disputed land by settlement
many years ago.
(iii)
Whether or not the plaintiff is
entitled to his claim.
(iv)
Whether or not the 1st
defendant is entitled to his
counterclaim.
(v)
Whether or not the Jackson
Report as published in the
Gazette in 1956 affected
plaintiff’s family’s occupation
of the disputed land.
(vi)
Whether or not the plaintiff’s
family shares common boundary
with Prampram beyond mile 30 or
at the site earmarked for the
construction of the National
Olympic Stadium.
(vii)
Whether or not the Two vesting
assents prepared by 1st
and 3rd defendants
are void and should be expunged
from the record of the 2nd
defendant.
It may be observed that,
essentially the consideration of
issues (i),
(iii), (v) and (vi) relates to
the determination of the
plaintiff’s claim, to wit,
whether or not the plaintiff has
any title to the disputed land,
whilst the consideration of
issues (ii) and (iv) would
relate to the determination of 1st
defendant’s claim, namely,
whether or not the 1st
defendant is entitled to his
counterclaim, thus leaving
issue (vii), namely whether or
not the 2nd defendant
are liable to be expunged for
being null and void.
By way of
preliminary remark, it must be
noted that 2nd
defendant (Lands Commission) did
not participate in this case,
quite apart from entering
appearance. Perhaps, as has been
their trademark in cases of this
nature whereby they are being
called to cancel and expunge
title deeds, they can but wait
to abide the outcome and the
direction of the court.
In the case of
GHANA MUSLIMS RE PRESENTATIVE
COUNCIL VS. SALIFU (1975) 2 GLR
246 the Court of Appeal in
holding 3 of the report posited
that “In a representative action
it was necessary, both in the
writ and in all subsequent
pleadings, to state clearly that
the parties were suing or were
being sued in their
representative capacity, on
behalf of the members of
a defined class. The
representative capacity should
also be stated in the title of
both the writ and the statement
of claim and not merely in the
endorsement of the writ on the
body of the pleadings”. Relying
on this holding coupled with the
provision in Order 2 Rule 4 (1)
(a) of the High Court (Civil
Procedure) Rules, 2004 (C. 1.
47), learned lawyer for 1st
defendant submitted that
plaintiff’s case is deserving of
dismissal in limine in that the
plaintiff failed to comply with
the law pertaining to
representative action, having
failed to disclose the
representative capacity on the
endorsement on the writ and the
statement of claim.
On the face of the
endorsement on the writ
plaintiff actually failed to
indicate the representative
capacity which failure is sinful
of the laid down law but in the
statement of claim filed on 14th
February 2007, the same cannot
be said. That is to say ,
paragraph 1 of the statement of
claim clearly stated that
plaintiff was suing as the head
of the Forzie family of
Terkpenya Old Ningo on behalf of
himself and on behalf of the
said family. In my view
paragraph one of the statement
of claim effectively cured the
defect on the endorsement. At
any rate the evidence adduced in
court clearly showed the
representative capacity by which
the action was instituted.
Therefore, it will not be
apposite to dismiss the
plaintiff’s case in limine as
contended by learned lawyer for
1st defendant in his
address.
Let us consider
plaintiff’s case. In the
pleadings, plaintiff alluded to
various acts of possession and
ownership that required proof.
For instance, plaintiff averred
that they have about 8 shrines
on the disputed land, about 40
settlements or sub-villages,
some of which were specifically
named, 33 bedroom houses not
forgetting the averment that
members of their family have
been farming and rearing cattle
on the land. It therefore beats
my
understanding for plaintiff to
have conducted the case in the
manner I find. That is to say,
besides the rather curt evidence
of PW1, Nene Tomotei
Zuta V who said plaintiff is his
cousin and that the disputed
land belongs to the Tei Kwabla
Forzie family, plaintiff did not
consider it even necessary let
alone calling even a single
person on any of those
settlements, houses or shrines
to give evidence in support in
the face of the challenge
inherent in the cases of 1st
and 3rd defendants.
What surprises me the more is
the fact that plaintiff had
asked for a declaratory relief
and he was required to prove his
case, though on the
preponderance of the
probabilities but assumed a
rather onerous burden of
convincing the court that he
deserves being decreed the owner
of the land
That is to say that
proof on the balance of
probabilities is flexible in its
application. In particular, the
more serious the allegation or
the more serious the
consequences if the allegation
was proved, the stronger the
evidence had to be before a
court would find the allegation
proved on the balance of the
probabilities. In my view this
position of the law is what is
crytallised in Sections 11 (4),
12 and 14 of the Evidence
Decree, 1975
(Act 323).
In this case,
plaintiff prayed for declaration
of title; if plaintiff proved
his case, it would have serious
consequences for the 1st
and 3rd defendants
and their privies and in fact
such a declaration will reign
against everybody on this earth
except a person or an entity
that can prove superior or
better title. Such a claim is
therefore not proved lightly.
Plaintiff was therefore required
to put on record any conceivable
permissible evidence that could
convince the court to declare
him the owner of the disputed
land. It is therefore
mind-boggling to concede that
plaintiff failed to pay heed to
the salutary advice offered by
Ollennu in the case of
MAJOLAGBE VS. LARBI
AND OTHERS (1959) GLR 190,
to wit, where corroborative
evidence must exist, the court
expects a party who makes an
averment (which the other side
denies) to call such
corroborative evidence in
support of his own. Plaintiff
had alleged that his family
members and/or farmers who are
on the disputed land at their
instance are on the land farming
and rearing cattle but he failed
to call even a single farmer or
cattle owner to testify to
corroborate his case, especially
when such allegations have been
denied.
In my humble view, plaintiff
neglected to adduce sufficient
cogent evidence pertaining to
overt acts of ownership of the
land he is claiming. This is
fatal to his claim. Plaintiff
who goes to court to claim
declaration of title relying on
traditional evidence, as
pertained in this case, must
ensure that he puts on record
acts of possession and ownership
as a significant step to
convincing the court on the
preponderance of the
probabilities that he deserves
to be decreed the owner of the
disputed land.
The plaintiff in
this case miserably failed to
discharge the onus of proof on
him.
On the contrary,
there exist certain events on
record that expose the falsity
of the claim of plaintiff to the
extent that plaintiff wanted the
court to believe that their land
ends at mile 27.
The most noticeable
event that comes to mind is the
Boundary Settlement Commission
into Shai-Ningo-Prampram Lands
conducted by Jackson (one time
High Court Judge of the land) on
or about the year 1954.
It is quite evident on record
that Tekpenya is in Ningo and
plaintiff hails from Ningo. Yet,
plaintiff is laying claim to
land, vast portions of which, if
not all, fall within Prampram.
At any rate, the borders of
Prampram and Ningo have been
conclusively determined by
Commissioner Jackson whose
Report received Gazette
notification in 1956 as per
Exhibit ‘2’ and Exhibit ‘3D2’
( The two are in
actual fact the same).
Besides, the composite plan
tendered into evidence as
Exhibit ‘2’ showed the boundary
between Ningo and Prampram at
mile 30. Indeed when the
surveyor was being
cross-examined he admitted that
Exhibit ‘1’
was consistent with the Jackson
Report as far as the boundary
between Prampram and Ningo is
concerned. The surveyor who had
been at the site agreed that the
boundary between the Ningos and
Pramprams is at mile 30.
At this point I may be permitted
to refer to what transpired at
the cross-examination:-
“Q. Now this survey plan
you referred to as a site plan
being incorporated in the
Jackson Report, the site plan
indicates
the boundaries
between prampram and Ningo
Lands.
A.
Yes that is correct.
Q. And that boundary is
captured in your report as mile
post 30.
A. Yes my Lord.
Q. And on the left side
of mile post 30 is Prampram
Land.
A. That is so.
Q. And on the right side
are Ningo Stool Land.
A. That is correct my
Lord.
Q. And it is true that
the plaintiff which is Ningo the
land that he showed you part of
it falls within the part
indicated in your report as
belonging to Prampram Stool
Land.
A. That is so my Lord”
It could be gleaned from this
intercourse that plaintiff’s
case is bound to crumble in that
plaintiff as Ningo cannot
purport to claim Prampram Land,
the boundary between the two
having been settled at pillar
marked G.C.S.L.B.S. ED. 14/55/26
(30 MILE STONE).
Plaintiff’s only witness
conceded that there is a
boundary between the people of
Ningo and the people of Prampram
but he said he disagreed with
the boundary as demarcated by
Commissioner Jackson. Indeed,
plaintiff himself also conceded
that there is a clear
distinction between Ningo Land
and Prampram Land and that the
two lands share common boundary.
I am not oblivious of the fact
that per their reply filed on 18th
April 2007 and in the evidence
plaintiff made strenuous efforts
to repudiate the validity of the
Jackson report. I am afraid it
is not permissible for plaintiff
to purport to attack the
validity of Exhibits ‘2’ and
‘3D2’ in the manner they went
about it. At any rate, are the
plaintiffs not estopped from now
challenging the validity and the
propriety of the Jackson Report,
this Report having been duly
gazetted in 1956 to the
knowledge of plaintiffs or of
which plaintiffs can be said to
have had constructive notice ?
I am of the view that if
plaintiff was dissatisfied with
the Report the proper step for
him to have taken was to have
instituted an action by way of a
writ or judicial review for
redress. He will not be
permitted in this proceedings to
express disagreement and expect
the court to throw away the
Jackson Report.
Apaloo J. A. in the case of
AMEODA VS. PORDIER (1967) GLR
479 at 483 had occasion to
comment on the personality and
the profile of Jackson with
respect to the report. He said
Mr. Jackson was, for a
considerable time, a judge of
the High Court of this country
and until recently, a land
boundary settlement
commissioner. He added that “Mr.
Jackson determined the
boundaries of the lands of Shai,
Ningo and Prampram”. He also
added that Jackson’s “findings”
were published in the Gazette
Extraordinary (No. 52) of 3
August 1956. This was what was
tendered herein as Exhibits ‘2’
and “3D2”.
From the foregoing, it is clear
that plaintiff’s case as I find
on record does not warrant that
he should be declared the owner
of the land in dispute. Indeed,
plaintiff is not entitled to any
of the reliefs sought.
Accordingly, plaintiff’s case
fails and same is dismissed.
1st defendant who
counterclaimed for declaration
of title, among other reliefs,
and has thus put himself a
position of plaintiff required
to prove his case in accordance
with Sections 11 (4), 12 and 14
of Act 323. Indeed in the case
of EFFISAH VS. ANSAH
(2005-2006) SCGLR 943,
the Supreme Court formulated the
principle of law thus:-
“The court have drifted away
from the Kodilinge
principle, namely that the
plaintiff must rely on the
strength of his own case and
not rely on the weakness of
the defendant’s case; and had
rather tilted towards the
need for proof on the balance
of probabilities in actions for
title to land as provided under
Section 11 (4) and (12) of the
Evidence Decree, NRCD 323”
1st defendant traced
the history of his family’s root
of title to the disputed land
and produced evidence to show
that since his family members
first settled on the disputed
land they have been in exclusive
and undisturbed possession and
occupation thereof till date. 1st
defendant in support of his case
called three witnesses who
essentially sought to
corroborate the claim of 1st
defendant.
An evaluation of the evidence
adduced by 1st
defendant as a whole attracts
the case of 1st
defendant towards success.
However this attraction, to a
very large extent is grossly
dulled in the face of the
composite plan produced and
tendered into court as
Exhibit’1’
It is evident that the parties
herein have their respective
lands. That is to say plaintiff
as a family of Ningo has its
family land but their suit
failed because of lack of cogent
evidence to prove their case
coupled with their claim
purporting to put their land
beyond mile 30 into the land of
Prampram. Between 1st
defendant and 3rd
defendant however, the main
issue had to do with the exact
boundary as between their
respective lands.
Even though both 1st
defendant and 3rd
defendant agreed that the
Prampram-Ningo boundary
converges at mile 30 and this
agreement is in accord with the
finding of the court, 3rd
defendant sharply disagreed with
the 1st defendant’s
contention regarding where the
boundary between them lies.
It is instructive however to
note that 3rd
defendant’s representative
speaking as a lawful attorney
emphatically stated that the
disputed area is called Meotwo.
Therefore, the fact that the
area where the Central
University College is located is
called Meotwo lands credence to
the claim of 3rd
defendant in contrast to the
claim of 1st
defendant.
In Exhibit ‘1’, mentioned a
while ago, the land as shown on
the site plan of 1st
defendant marked yellow
stretches beyond mile 30 and far
into the land belonging to the
Ningos. Even on the same
composite plan, the land shown
by 1st defendant
protruded into the land of the
plaintiff, beyond mile 30. This
certainly bristled at 1st
defendant’s case in no small
measure.
That is to say, 1st
defendant cannot claim land that
protrudes or otherwise overlaps
into the land of the Ningo if
Exhibit ‘1’ and Jackson Report
are anything to go by.
By 1st defendant’s
showing, their counter claim
initially related to 9,404.28
acres, the same size of land
plaintiff claimed. By an
amendment
1st defendant
shifted his claim to 2,616 acres
and this size of the land
claimed was further reduced to
2,434 acres. Quite clearly, 1st
defendant exhibited uncertainty
as to the size of the land he is
claiming. As the hearing of the
case proceeded, the 1st
defendant could not stand the
gaze of the incredulity of his
counterclaim and so he kept on
shifting the goal post to avoid
failure.
I cannot agree more
with learned lawyer for 3rd
defendant when he said “1st
defendant has been going forum
shopping for land. The moment he
sees any vacant land with no
activity thereon, he would do
all to grab it”.
It is no wonder therefore to
hear 3rd defendant’s
witness Nene Atsure Benta
saying; “the claim of the 1st
defendant i.e. counterclaim
relief I does not make sense
because he himself agreed that
part of the land given to the
Central University College
belonged to the Awuley Kwao
family
(3rd defendant) and
now if he is claiming such a
total area then he is saying
that the entire land on which
the University College is
situate belongs to him. 5,565
feet can approximately be over
one mile. This is why I am
saying that it will encompass
the whole of the Central
University. From the point of
Central University to mile 30
that stretch of land is owned by
3rd defendant”.
I am not oblivious
of the desperate corrective
measures 1st
defendant took in bringing to
the fore an alleged mistake made
by the surveyor. I am talking
about Exhibit ‘8’ and ‘8A which
sought to correct the fact that
the land being claimed by 1st
defendant protruded unto the
Ningo land. I have agonized over
this self–serving measure 1st
defendant took and the
conclusion I come to is that it
is an afterthought that deserves
no regard. Exhibit ‘1’ was
produced by an order of the
court whereby all parties
participated. It was formally
tendered into evidence and all
parties had the opportunity of
cross-examining the surveyor who
produced that work.
Therefore, when 1st
defendant noticed the so-called
mistake, what stopped him from
applying for the cancellation of
the whole composite plan for a
new one to be made. Exhibits ‘8’
and ‘8A’ would thereby have
featured in the new one. That is
to say, looking at Exhibit ‘1’,
the accredited composite plan
made by the court’s expert,
Exhibit ‘8A has no place in it
and so accepting Exhibit ‘8A and
giving it due weight will make
nonsense the evidential
significance of Exhibit ‘1’. 1st
defendant chose to unilaterally
do a plan purporting to correct
a perceived mistake. Although
the other parties surprisingly
did not resist the move, I think
that for evidential
purposes, what 1st
defendant did was self-serving
post facto rationalisation
measure and it cannot attract
any due consideration or regard
by the court.
This state of affair
negatively impacts on the
prospect of the counterclaim of
1st defendant
succeeding. Accordingly the
counterclaim of 1st
defendant fails and same is
dismissed.
In all the claims of 1st
defendant, it was evident that
they share common boundary with
3rd defendant. In my
view, it was incumbent upon
1st defendant who
counterclaimed to have described
this boundary with all
certainty. It appears to me that
some work like what Jackson did
is required to spell out the
exact boundary between 1st
defendant and 3rd
defendant. In this suit, I do
not think 1st
defendant/counterclaimant
succeeded in spelling out the
distinct and exact limits and
dimensions of the boundary
between their land and 3rd
defendant. Therefore their claim
to the land cannot be favourably
considered.
There is yet one
comment worthy of making
regarding the boundary between 1st
defendant and 3rd
defendant. To do this, I crave
indulgence to refer to the
picture painted by 1st
defendant’s second witness, Nene
Tetteh Kojo III in his evidence
in chief. He testified thus:-
“As far as I remember there was
a time that there was a boundary
dispute between people of
Dawhenya and Meotwo and I was
tasked with five others to
demarcate their boundaries for
them. This was about 2005. As
far as I know there was a time
the people of Meotwo (3rd
defendant) gave a piece
of land to Central University
college and the family of Arden
and Darpoh (1st
defendant) complained that part
of the land fell into the land
the people of Meotwo gave the
University.
As a result there was a dispute
before the Prampram traditional
Council. It was in connection
with this that I and five others
were delegated to demarcate the
disputed boundary. The five
others with whom I did the
demarcation were Nene Atueri
Benta III, Mankrado of
Prampram, Nene Tetteh Eyuni II,
chief of Lable (Lower Prampram),
Nene Martey Kpone gbabla I of
Mateheko, Numo Lartey Eyum of
Abekuma and Numo E. T. Kpadey of
Yeodushie”
The witness then went ahead to
mention how the demarcation
was done and both 1st
defendant and 3rd
defendant agreed to the
demarcation done.
In cross-examination however,
the witness answered these
questions thus:-
“Q. I am suggesting to you
that out of the entirety of the
land it was only14
acres which belonged to the
Arden
and Darpoh family
which had overlapped unto the
land
granted to the
Central University College by 3rd
defendant.
A.
I can accept that with an
explanation. When we got to the
point of the demarcation we
asked the surveyors the extent
of the land being disputed
and they said it was about 28.6
acres and they agreed to
divide it into two. So I
cannot
challenge if only 14 acres of
the Arden and Darpoh land
overlapped.
Q. I suggest to you that
the Arden and Darpoh family has
no
land beyond the
boundary up to the Central
University
College up to Mile 30.
A.
I cannot say anything about
that. What you have suggested
is correct”
Going by the foregoing, I think
that 1st defendant is
estopped from contending that it
is entitled to more than the 14
acre land carved out from
the land granted to the Central
University which land the
Central University paid for.
It appears from the evidence as
a whole and Exhibit ‘3D6’ in
particular that 3rd
defendant exercised overt
ownership right over the land at
Meotwo by making grants thereof
to one Tony Alhassan Adams in
particular. It is worthy of note
that the grants made to the said
Tony Alhassan Adams have the
fiat of 1st defendant
per Exhibit ‘3D6’.
In my view by Exhibit ‘3D6 1st
defendant “no objection”
position caused 3rd
defendant to believe that they
have the right as owners of the
land to grant and having granted
the land based on that belief, 1st
defendant cannot now be heard to
purport to detract from that
stand. I am hereby echoing the
equitable principle of estoppel
by statement or conduct. This
principle is codified in Section
26 of NRCD 323. See the case of
MECHANICAL LLOYD ASSEMBLY
PLANT LTD. VS. NARTEY (1984-86)
1 GLR 412 CA.
In any event, does Exhibit ‘3D6’
not cast doubt on the claim of
the
1st defendant? How
can 1st defendant who
claims to own the land
voluntarily write Exhibit ‘3D6
giving his blessing to the grant
of the land made in favour of
Tony Alhassan Adams by 3rd
defendant without so much as any
consideration. At least we are
not told whether any
consideration passed as a reason
for the issuing of Exhibit ‘3D6’
by 1st defendant.
1st
defendant attempted to do damage
control regarding the harm
Exhibit ‘3D6’ did to his case by
Exhibit “1D11” also written by
Nene Kwaku Darpoh dated 11th
May 2006. The question to ask is
if really the land belonged to
Nene Kwaku Darpoh or his family,
why has he sat down all these
years without instituting an
action to protest against the
said grants of the land made in
favour of Tony Alhassan Adams?
Even in this case where a clear
opportunity availed the 1st
defendant he made no such case.
In the end both
plaintiff and 1st
defendant’s cases fail and same
are dismissed. Learned lawyer
for 3rd defendant
invited me to apply the case of
HANNA ASSI VS. GIHOC
REFRIGERATION AND HOUSEHOLD
APPLIANCES NO. 2 (2007-2008)
SCGLR 16 and enter judgment
for 3rd defendant. It
seems to me that that case is
distinguishable from the facts
of this case. That case is not
applicable to the peculiar facts
of this case.
Having dismissed plaintiff’s
case and 1st
defendant’s counterclaim,
I will award 3rd
defendant cost of GH¢10,000
against plaintiff and GH¢7,000
against 1st
defendant. As between plaintiff
and 1st defendant
I make no order as to costs.
Each of them to bear his own
costs.
(SGD) ANTHONY
OPPONG J.
JUSTICE OF THE HIGH COURT
LAWYERS:
D. K. SOKPOR ESQ; FOR PLAINTIFF.
YAW ASARE DARKO FOR 1ST
DEFENDANT.
GEORGE HEWARD MILLS FOR 3RD
DEFENDANT.
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