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Land - Ownership and Possession
- Deletion of defendant's
registration - Perpetual
injunction.- Whether or not the
1st defendant and his family are
licensees on plaintiff's family
land - Whether or not the
land in dispute is the absolute
property of Nana Obeng Kwabena
Family
HEADNOTES
This case takes its roots from
an earlier case filed in the
High Court, Accra, Suit No.
2539/91 intituled Nana Asiamah
Aboagye v 1.Nana Addo Dankwa
III, 2. The Attorney-General.
The plaintiff in that case
claimed on behalf of four
families for ownership and
possession of a parcel of land
at Larteh adjoining the
Okuapeman Secondary School. He
contended that the land was the
ancestral land of the four
families but unknown to them the
predecessor of Nana Addo Dankwa
III, Akropong Omanhene Nana
Kwame Fori, purported to grant
it out in the 1960s for the
building of Okuapeman Secondary
School without their consent.
Their case was that the school
occupied only a portion of the
land and they did not know their
whole land had been taken until
their activities on the land
were challenged by subjects of
the Akropong Stool and a search
at Lands Commission revealled
that the land had indeed been
given out, hence the suit. The
families were; Okyeame Kwame
Asiem, Nana Obeng Kwabena,
Wontumi and Akyeampong Families
all of Larteh-Ahenease. The High
Court gave judgment on 27th
September, 2002 in favour of the
plaintiff. At the trial,
plaintiff tendered a plan of the
land on which the boundaries of
land belonging to each of the
four families as well as
Okuapeman Secondary School were
delineated. The total land of
the families came to
approximately 369 acres while
the land of Okuapeman Secondary
School was approximately 37.60
acres. It appears that after
the judgment there was no appeal
so there was peace until 27th
February, 2008 when plaintiff
herein took out a writ of
summons from the High Court,
Koforidua against the 1st
defendant and some
"Developers/Trespassers"
claiming that the entire 369
acres of land at Larteh adjudged
by the High Court, Accra in Suit
No. 2539/91 is the exclusive
property of the Nana Obeng
Family of which he was Head.
Nana Obeng Family is one of the
four families that were adjudged
to be owners of the land in the
earlier suit. He sued the 1st
defendant, who is the head of
Okyeame Kwame Asiam family,
another of the four families in
the earlier case, and the one
who was given a power of
attorney to represent the four
families in that case. The
grounds for the new suit were
that after the judgment 1st
defendant had the land
registered in only his name at
the Lands Commission, Koforidua
and made grants of parts of it
to developers without
plaintiff's authorisation. As to
the interest of the other three
families that were involved in
the first case, plaintiff stated
in his statement of claim that
they were licensees of his
family but it was his family
that had exclusive ownership of
the land
HELD :-
In fact, upon close scrutiny of
the pleadings we are of the
opinion that this case should
have been resolved by ADR from
the moment 1st defendant amended
his pleadings and contended that
the land was for all four
families which is consistent
with the documents which were
not disputed. Having held that
the land belongs to all four
families, we do not see any use
in considering each of the other
grounds of appeal. Based on our
conclusion, we would proceed to
dismiss plaintiff's reliefs (a),
(b), (d) and (e). However, since
the registration of the 369
acres in defendant's name
creates the impression that the
entire land belongs to him, we
grant plaintiff's relief (c) and
order the Lands Commission,
Koforidua to delete from their
records in respect of the land
subject matter of this case the
registration of defendant's name
and that of any grants made by
him. For the avoidance of doubt,
we declare that the land is
owned by the four families and
each family's land is as
delineated on the land plan,
Exhibit "6". Consequently, the
appeal is allowed in part.
STATUTES REFERRED TO IN JUDGMENT
High Court (Civil Procedure)
Rules, 2004 (C.I.47)
CASES REFERRED TO IN JUDGMENT
Adjeibi-Kojo v Bonsie [1957] WLR
1223.
Agyei Osae v Adjeifio [2007 –
2008] SCGLR 499
.BOOKS REFERRED TO IN
JUDGMENT
DELIVERING THE LEADING JUDGMENT
PWAMANG, JSC:-
COUNSEL
JOSEPH ACHEAMPONG FOR THE
DEFENDANT/APPELLANT/APPELLANT.
MATTHEW OTENG FOR THE
PLAINTIFF/RESPONDENT/RESPONDENT.
PWAMANG, JSC:-
This case takes its roots from
an earlier case filed in the
High Court, Accra, Suit No.
2539/91 intituled Nana Asiamah
Aboagye v 1.Nana Addo Dankwa
III, 2. The Attorney-General.
The plaintiff in that case
claimed on behalf of four
families for ownership and
possession of a parcel of land
at Larteh adjoining the
Okuapeman Secondary School. He
contended that the land was the
ancestral land of the four
families but unknown to them the
predecessor of Nana Addo Dankwa
III, Akropong Omanhene Nana
Kwame Fori, purported to grant
it out in the 1960s for the
building of Okuapeman Secondary
School without their consent.
Their case was that the school
occupied only a portion of the
land and they did not know their
whole land had been taken until
their activities on the land
were challenged by subjects of
the Akropong Stool and a search
at Lands Commission revealled
that the land had indeed been
given out, hence the suit. The
families were; Okyeame Kwame
Asiem, Nana Obeng Kwabena,
Wontumi and Akyeampong Families
all of Larteh-Ahenease. The High
Court gave judgment on 27th
September, 2002 in favour of the
plaintiff. At the trial,
plaintiff tendered a plan of the
land on which the boundaries of
land belonging to each of the
four families as well as
Okuapeman Secondary School were
delineated. The total land of
the families came to
approximately 369 acres while
the land of Okuapeman Secondary
School was approximately 37.60
acres.
It appears that after the
judgment there was no appeal so
there was peace until 27th
February, 2008 when plaintiff
herein took out a writ of
summons from the High Court,
Koforidua against the 1st
defendant and some
"Developers/Trespassers"
claiming that the entire 369
acres of land at Larteh adjudged
by the High Court, Accra in Suit
No. 2539/91 is the exclusive
property of the Nana Obeng
Family of which he was Head.
Nana Obeng Family is one of the
four families that were adjudged
to be owners of the land in the
earlier suit. He sued the 1st
defendant, who is the head of
Okyeame Kwame Asiam family,
another of the four families in
the earlier case, and the one
who was given a power of
attorney to represent the four
families in that case. The
grounds for the new suit were
that after the judgment 1st
defendant had the land
registered in only his name at
the Lands Commission, Koforidua
and made grants of parts of it
to developers without
plaintiff's authorisation. As to
the interest of the other three
families that were involved in
the first case, plaintiff stated
in his statement of claim that
they were licensees of his
family but it was his family
that had exclusive ownership of
the land. A summary of the
reliefs plaintiff endorsed on
his writ of summons is as
follows; (a) declaration of
title, (b) recovery of
possession, (c) deletion of 1st
defendant's registration, (d)
general damages for trespass,
and (e) perpetual injunction.
The so called
"Developers/Trespassers" did not
participate in the case and only
1st defendant sought leave to
enter appearance and filed
defence on 29/12/08. On the
substance of plaintiff's claim,
defendant denied that they the
other families were licensees
but admitted registering the
land in his name. In one
breadth, defendant pleaded that
he registered the land to ward
off trespassers and in another,
he stated that when he was given
the power of attorney to
represent the families in the
first case, they all agreed that
if he succeeded in claiming back
the land he should take over the
whole land since he was to use
his own resources to fight the
case in court. However, pursuant
to leave of the court, defendant
through his new lawyer, Sir
Asante-Ansong, filed an amended
defence on 3/4/09. This defence
was further amended by the leave
of the court on 17/4/12. In the
amended defences defendant
maintained his denial of the
claim by plaintiff that the
other families were licensees
and at paragraph 17 he further
pleaded as follows;
"17. The first defendant will
contend at the trial that the
land that was the subject matter
of the suit intituled Nana
Asiamah Aboagye Vrs. Nana Addo
Dankwa III & Anor Suit No.
2539/91 was owned by the
families whose heads of family
executed the Power of Attorney
and the plaintiff's family...."
In view of the state of the
pleadings we consider issues (e)
and (f) set out in plaintiff's
application for directions as
the central issues the
determination of which would
lead to a resolution of the
merits of the case. They are as
follows;
(e) whether or not the 1st
defendant and his family are
licensees on plaintiff's family
land.
(f) whether or not the land in
dispute is the absolute property
of Nana Obeng Kwabena Family.
At the trial the plaintiff
narrated traditional history of
how his ancestor was the first
person to discover the land
before inviting the ancestors of
the other families to join him
hence his ancestor was the
original owner of the entire
land. He called a witness, PW1
who said the other families have
only usufructuary interest in
the land. Usufructuary interest
in land is a substantial
interest higher than a license
that plaintiff himself talked
of. The 1st defendant's
testimony showed that his
family's portion of the land was
acquired by his family and not
given to it by plaintiff's
family. More important, he
stated in several parts of his
evidence that the land belongs
to the four families and in
support he tendered the power of
attorney he was given to
initiate the first case, the
judgment in that case and the
land plan with delineations of
each family's part of the 369
acres that was tendered in the
first case.
Before proceeding, we wish to
comment that having regard to
issue (e) the court should have
pursuant to Order 4 Rule 5(2)(b)
of the High Court (Civil
Procedure) Rules, 2004 (C.I.47),
suo moto ordered the
Wuntomi and Akyeampong families
to be joined to the action as
defendants and not
simplistically accepted
plaintiff's say so that he spoke
to them but they refused to join
in the suit. In any case, their
absence notwithstanding, the
question whether they were
owners of their respective lands
or licensees was subsumed under
issue (e) set down as an issue
for determination and the trial
judge had to resolve that issue
having regard to the totality of
the evidence before the court,
both documentary and oral.
In resolving the above issues
the trial judge in his judgment
said he was applying the
principle in Adjeibi-Kojo v
Bonsie [1957] WLR 1223. The
principle in that case is
applicable where a court is
faced with conflicting
traditional evidence and there
is little to choose between the
stories of the parties. In such
situation, the law is that the
court is required to evaluate
the conflicting traditional
evidence against undisputed
evidence of events and acts of
ownership in living memory
adduced before the court and opt
for the version of the
traditional evidence that is
consistent with the undisputed
evidence. According to the
trial judge, an application of
this principle led him to the
conclusion that the other
families are licensees and that
plaintiff's family is the
absolute owner of the entire 369
acres. The Court of Appeal
affirmed this finding and being
dissatisfied the defendant
further appealed to this court.
Under Ground 16 of the grounds
of appeal, the defendant has
argued before us in his
statement of case that, in the
application of the
Adjeibi-Kojo v Bonsie
principle, both the High Court
and the Court of Appeal ought to
have considered the traditional
evidence against the recent
events and acts of ownership as
proved by the power of attorney
that was used for the earlier
case, the judgment in that
earlier case and the plan
therein that were all tendered
in the instant case. Those
documents that are not disputed
show unequivocally that the
other three families are owners
of their respective lands and
not licensees and that
plaintiff's family owns only 106
acres and not the entire 369
acres. We are in agreement with
defendant on this ground of
appeal. This is what is stated
in the Power of attorney
tendered as Exhibit "4";
"WHEREAS since time immemorial
certain parcels or pieces of
land situate and being around
the Okuapeman Secondary School
site have been vested in the
under mentioned families of
Larteh-Ahenease
AND WHEREAS by native custom the
rights in the said lands have
become vested in us as HEADS OF
FAMILIES
NOW BY THIS POWER OF ATTORNEY we
YAW OTWE, Head of the WONTUMI
FAMILY, OTUEI DWAMENA, Head of
AKEAMPONG FAMILY, all of the
ADABRI clan of Larteh-Ahenease,
MOSES KWAKU APAU-BEKOE, Head of
Nana Obeng Kwabena Family of the
AKEREMEDE clan also of
Larteh-Abenease hereby APPOINT
NANA ASIAMA ABOAGYE, Head of the
OKYEAME KWAME ASIAM FAMILY of
the AKEREDE clan of
Larteh-Abenease our ATTORNEY to
act on our behalf in all matters
connected with the said parcel
of land inclusive of the area
encompasing the Okuapeman
Secondary School..."
This power of attorney was
prepared by lawyer Ohene Obeng
of Larteh who interpreted and
explained it to the donors
including plaintiff's head of
family at the time before they
executed it. In the judgment in
Suit No 2359/9, the four
families were stated to be
allodial owners of the land.
Therefore, by these documents
the lands were vested in the
various families with the same
vested interest so plaintiff's
testimony to the contrary ought
not to have been preferred to
the case of defendant that they
are all owners of their
respective parts of the land and
not licensees. Furthermore, the
settled principle of the law of
evidence is that where oral
evidence conflicts with
documentary evidence which is
authentic, then the documentary
evidence ought to be preferred
over and above the oral
evidence. See Agyei Osae v
Adjeifio [2007 – 2008] SCGLR 499.
Where a second appellate court,
such as we are, comes to the
conclusion that a finding in a
judgment appealed from is
inconsistent with undisputed
documentary evidence on the
record of the court, the
appellate court is mandated to
set that finding aside unless
there are compelling reasons to
the contrary. We find no reasons
in this case that would hold our
hand from setting aside this
finding and same is hereby set
aside. In its place, we state
that the 369 acres of land
subject matter of this case
belongs to the four families in
the proportions indicated in the
plan used in the earlier case
and tendered in this case as
Exhibit "6". The plaintiff based
his action on Suit No 2359/91 so
he is deemed to have adopted the
proceedings and judgment of that
case. He cannot approbate and
reprobate at the same time. In
the circumstances, Ground 16 of
the grounds of appeal succeeds.
We notice from defendant's
evidence that though he stated
that the other families
authorised him to take over the
land, he could not prove same.
In any case, he did not claim
exclusive ownership of the 369
acres but said in several parts
of his evidence that the land
belonged to all the families and
that he registered the whole
land to protect it against
trespassers. Defendant in his
amended defence even left out
his counter claim for injury to
his reputation. Furthermore,
defendant challenged plaintiff's
status as head of his family
but, in our view, plaintiff
adduced sufficient evidence to
prove that he was indeed the
head of Nana Obeng Kwabena
Family.
In fact, upon close scrutiny of
the pleadings we are of the
opinion that this case should
have been resolved by ADR from
the moment 1st defendant amended
his pleadings and contended that
the land was for all four
families which is consistent
with the documents which were
not disputed.
Having held that the land
belongs to all four families, we
do not see any use in
considering each of the other
grounds of appeal. Based on our
conclusion, we would proceed to
dismiss plaintiff's reliefs (a),
(b), (d) and (e). However, since
the registration of the 369
acres in defendant's name
creates the impression that the
entire land belongs to him, we
grant plaintiff's relief (c) and
order the Lands Commission,
Koforidua to delete from their
records in respect of the land
subject matter of this case the
registration of defendant's name
and that of any grants made by
him. For the avoidance of doubt,
we declare that the land is
owned by the four families and
each family's land is as
delineated on the land plan,
Exhibit "6". Consequently, the
appeal is allowed in part.
G. PWAMANG
(JUSTICE OF THE SUPREME COURT)
ADINYIRA (MRS), JSC:-
I agree with the conclusion and
reasoning of my brother Pwamang,
JSC.
S. O. A. ADINYIRA
(MRS)
(JUSTICE OF THE SUPREME COURT)
YEBOAH, JSC:-
I agree with the conclusion and
reasoning of my brother Pwamang,
JSC.
ANIN YEBOAH
(JUSTICE OF THE SUPREME COURT)
BAFFOE-BONNIE, JSC:-
I agree with the conclusion and
reasoning of my brother Pwamang,
JSC.
P. BAFFOE-BONNIE
(JUSTICE OF THE SUPREME COURT)
APPAU, JSC:-
I agree with the conclusion and
reasoning of my brother Pwamang,
JSC.
Y. APPAU
(JUSTICE OF THE SUPREME COURT)
COUNSEL
JOSEPH ACHEAMPONG FOR THE
DEFENDANT/APPELLANT/APPELLANT.
MATTHEW OTENG FOR THE
PLAINTIFF/RESPONDENT/RESPONDENT.
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