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JUDGMENT
By an amended writ of summons,
the plaintiffs claim against the
defendants:
“(a)
Declaration of title against 1st
- 6th defendants to
all that piece or parcel of land
situate, lying and being at
Afuaman, Accra and bounded on
the north-west by Domeabra,
Denkyira and Ashalaja Lands
measuring 21,452 feet more or
less; on the south-west by Weija,
Joma and Domeabra Lands
measuring 16,866 feet more or
less and on the north-east by
Ashalaja, Manhean, Ablekuma and
Weija Lands measuring 22,438
feet more or less containing an
approximate area of 4222.81
acres comprising 3 areas as
follows:
AREA” A”
comprising 1460.01 acres
denoting the present Afuaman
Village including areas
encroached upon by the family
members of 1st
defendants
AREA”B”
comprising 2029.97 acres
denoting the areas which are
usually flooded as a result of
the construction of the Weija
Dam on the River Densu.
AREA”C”
comprising 732.83 acres which is
the area left unflooded on the
Eastern side of the River Densu.
(b) An order for recovery
of possession from 1st-6th
defendants or their grantees the
portions of Area “A” which they
have encroached upon.
(c)
Damages for trespass against 1st
– 6th defendants.
(d)
Perpetual injunction against 1st
– 6th defendants.
(e)
An order directing 7th
and 8th defendants to
delete areas “A” and “C” from
the land covered by Executives
Instruments 130 of 1977.
(f)
An order directing 8th
defendant to pay just and
adequate compensation for area
“B”
(g)
An order directing 9th
defendant to register and plot
in 1st plaintiff’s
family name area “A” and “C”.
(h)
Or in the alternative to relief
(e), that 7, 8 and 9 defendants
be ordered to acquire land equal
to the measurement of land
described as “Area
A” and “Area C” in
relief (a) and to resettle
plaintiffs and their families
thereon.”
After the service on the
defendants of the writ with its
accompanying statement of claim,
the defendants entered
appearance and later caused
statements of defence to be
filed on their behalf.
The 1st defendant
also counterclaimed against the
plaintiffs and the 2nd
to 9th defendants as
follows:
‘1. A Declaration
of title to ALL THAT PIECE OR
PARCEL of land situate, lying
and being at Joma in the Ga
Rural District of the Greater
Accra Region of the Republic of
Ghana bounded on the North by
Afuaman land and Ablekuma Stool
land, on the South by the Weija
Water Works, on the South East
by Gbawe Stool lands, on the
South-West by Densu River and on
the North West by the Nsaki
River comprising an approximate
area of 1632 Acres.
2: An order for
recovery of possession.
3.
Damages for Trespass.
4. Perpetual
Injunction restraining the
plaintiffs and the 2nd
to 9th Defendants and
their issues, agents, privies
and all claiming through them
from entering, intermeddling,
disposing off or dealing in any
way whatsoever with the said
land’.
The 2nd to the 6th
defendants also counterclaimed
against the plaintiffs for:
-
‘Declaration of title to all
that tract of land situate,
lying and being at JOMA and
bounded on the North by
Afuaman and measuring there
7000 feet more or less, on
the South by Weija Water
Works measuring there 10235
feet more or less, on the
East by Ablekuma measuring
there 7350 more or less on
the South-East By Gbawe
Kodfo measuring there 7100
feet more or less, on the
West by Densu River
measuring there 4400 feet
more or less on the
North-West by the Nsaki
River and measuring there
7550 feet more or less and
containing an approximate
area of 1632 acres more or
less.
-
Recovery of possession
thereon.
-
Damages for trespass
-
Further or other relief as
in the circumstances may be
just including in particular
perpetual injunction to
restrain the plaintiffs
whether themselves, their
servants, agents workmen,
assigns whomsoever or
otherwise howsoever from
interfering with the 2nd-
6th Defendants
ownership, occupation and
possession of the land
thereto’.
At the close of pleadings, the
following issues set out in the
application for directions were
adopted for trial:
‘(a) Whether
or not the disputed land forms
part and parcel of 1st
plaintiff’s family land.
(b) Whether or
not all the disputed land forms
part of the compulsorily
acquired for 8th
defendant under E.I 130 of 1977.
(c) Whether
or not all claimants including
1st defendant’s
family were paid compensation in
respect of their lands which
formed part of the said
acquisition.
(d) Whether or
not 1st to 6th
defendants family were resettled
at Weija since all their land
fell into the area of
acquisition.
(e) Whether or
not 1st plaintiff’s
family are entitled to a release
of the portion of their land
that is area “a” and “C” which
has never been flooded since the
construction of the Weija Dam.
(f) Whether
or not 7th to 9th
defendants have ever taken any
step to resettle 1st
plaintiff’s family from the
Afuaman village.
(g) Whether or
not 1st plaintiff’s
family are entitled to adequate
and just compensation in respect
of the portion of their land
that is area “B” which is
normally flooded by the Dam.
(h) Whether or not
2nd to 6th
defendants are entitled to their
counterclaim.
(i)
Any other issues arising from
the pleadings’.
Two other issues, additional to
the issues on the application
for directions, were also
adopted for trial. These are:
‘Whether or not the Honourable
Court has the jurisdiction to
order and direct the Attorney
General to delete and expunge
areas A and C from E.I. 130 of
1977 and
Whether or not by plaintiffs’
admission of the instrument of
acquisition of their land the
said plaintiffs have and can in
law seek a declaration of title
to the land in question’.
Before evidence could be taken
the 7th defendant
applied for the 1st
additional issue to be set down
for trial by legal argument and
after consideration by the
Court, the relief for “an
order directing the 7th
and the 8th
defendants to delete areas A and
C” from the land covered by
E.I. 130 of 1977 was struck out
from the reliefs indorsed on the
writ of summons. See the ruling
of the Court dated the 12th
day of June 2009.
At the trial, the 3rd
plaintiff gave evidence on his
own behalf and on behalf of all
the plaintiffs. One person was
called as a witness for the
plaintiff after which the
plaintiffs announced the closure
of their case. The 1st
defendant gave evidence on
behalf of the 1st to
the 6th defendants
after which two witnesses were
called to testify in support of
the case of the 1st
to the 6th
defendants before their case was
closed.
The 1st relief sought
by the plaintiffs is a
declaration of title to the land
in dispute whose boundaries are
set out in the endorsement.
Indeed, the 1st
defendant also made a
counterclaim for a declaration
of title to land described in
his counterclaim. Likewise, the
2nd to the 6th
defendants also filed a
counterclaim for a declaration
of title to land described in
their counterclaim. On the 23rd
day of May 2011, the 1st
defendant filed a notice of
discontinuance of his
counterclaim and truly during
the evidence in chief no
evidence was given by the 1st
defendant in proof of the
counterclaim. Accordingly, the
counterclaim filed by the 1st
defendant is hereby struck out.
In respect of the declaration of
title sought by the plaintiffs
herein, the plaintiffs have
pleaded at paragraphs 5 and 6 of
their statement of claim that:
‘5. 1st
Plaintiff says that by an
Executive Instrument 130 of
1977, a vast area of land was
compulsorily acquired for the 8th
defendant for the Weija Dam
Project which acquisition also
covered 1st
plaintiff‘s family land
described in the writ of
summons.
6. 1st
Plaintiff says that the said
acquisition also covered the
Afuaman village which has been
described in the writ of summons
as Area “A” ‘
In an answer to a question under
cross examination, the 3rd
plaintiff stated that “my lord
the reason was that I have made
it clear in this court that the
entire Afuaman land falls within
the E.I. 130 including the
Afuaman Township itself…”
The defendants have also
testified to the effect that the
whole of their ancestral land –
Joma land was acquired under
Executive Instrument, E.I. 130
of 1977.
In the light of the pleadings
and the evidence given by the
parties, the issue is whether or
not the plaintiffs as well as
the 2nd to the 6th
defendants can seek a
declaration of title to the land
in issue or to their respective
ancestral lands.
The effect of a compulsory
acquisition by the Government
has been succinctly stated In
MEMUNA MOUDY and others vs.
ANTWI [2003 – 2004] SCGLR 967,
where the Supreme Court held
that:
“Land compulsorily
acquired by government under the
Public Lands Ordinance, Cap 134
(1951 Rev), vests automatically
in the government upon a
publication in the gazette, and
further that by virtue of
section 11 of the Ordinance, the
acquisition operates to bar and
destroy “all other estates,
rights, titles, remainders,
reversions, limitations, trusts
and interests whatsoever of and
in the lands” acquired. And
under section 12(2), a
certificate of title issued by
the court in respect of the
acquired land confers upon the
holder “an absolute title and
indefeasible right to the lands
free from all adverse or
competing rights, titles,
interests, trusts, claims and
demands whatsoever”. The
rights, estates, limitations,
etc are those existing in the
land at the date of the
acquisition, i.e. at the date of
the publication of the gazette.
Those are the interests which
are forever barred or destroyed”.
In the light of the authority
therefore the Court holds that
neither the plaintiffs nor the 2nd
to the 6th defendants
can seek the relief of
declaration of title in respect
of their lands which they admit,
have been compulsorily acquired
by the government under
Executive Instrument No. 130 of
1977. Consequently the claim
for a declaration of title
endorsed by the plaintiffs on
their writ of summons as well as
the counterclaim for a
declaration of title endorsed by
the 2nd to the 6th
defendants are accordingly
dismissed. The Court will also
dismissed claim (g) endorsed by
the plaintiff in which the
plaintiffs seek “an order
directing the 9th
defendant to register and plot
in 1st plaintiff’s
family name areas ‘A’ and ‘C’.
According to the plaintiffs
after the construction of the
Weija dam on the Densu River,
the water overflowed and divided
their land into 3 parts which
the plaintiffs have labeled
areas ‘A’, ‘B’ and ‘C’. Area
‘A’ according to the plaintiffs
is where the Afuaman village is
situate. The river has taken
the entire portion of area ‘B’
whiles the plaintiffs farm on
area ‘C’.
The reason the plaintiffs have
sued the 1st to 6th
defendants is that “the people
of Joma have encroached on
portions of area ‘A’ ”.
According to the plaintiffs
although their land was acquired
under E.I. 130 of 1977, the
people of Afuaman were not
resettled unlike the people of
Joma who were resettled by the
Government after the Densu river
had flooded their land upon the
completion of the dam. Thus,
the plaintiffs’ contention is
that they continued to remain in
possession of the land in spite
of the acquisition by the
Government under E.I. 130 of
1977. Hence, the complaint of
the plaintiffs is that the
people of Joma are committing
trespass on their land. In
other words the people of Joma
are violating their possessory
right.
A person’s right to protect his
possessory right has been
recognized in a number of
decisions. Thus is the case of
YORKWA
VS. DUAH
[1993-1994] 1 GLR 217 CA. the
court held that:
“It was a settled principle that
a person in possession and
occupation was entitled to the
protection of the law against
the whole world except the true
owner or someone who could prove
a better title”.
Before this court the 1st
to 6th defendants
admitted that the whole of their
land, the Joma land, was
acquired under E.I. 130 of
1977. The 1st to 6th
defendants have again admitted
that after the acquisition of
their land, they were resettled
at Weija and in Suit No. L
592/97 they sued the Lands
Commission and others and
succeeded in recovering
compensation for their land
acquired by the Government of
Ghana under E.I. 130 of 1977.
Practically therefore, the 1st
to 6th defendants and
all those claiming through them
ceased to have any legitimate
claim to the land acquired by
the Government. They had
neither a possessory right nor
any other interest in their
ancestral lands since they were
moved out of the land and
resettled somewhere else.
The plaintiffs have complained
that the 1st to 6th
defendants have come unto the
plaintiffs’ land and that the 1st
to 6th defendants are
selling the land to people for
building purposes and they are
also destroying lands belonging
to grantees of Nii Afua and also
harassing them.
In their defence, the 1st
defendant has averred that the
land in dispute is different
from the land which was the
subject of dispute in Suit No. L
592/97. Under cross examination
however, the 1st
defendant retracted this
averment when he answered and
said that the land in dispute is
not different from the land
which was the subject matter of
Suit no. L 592/97. Again the 1st
defendant admitted under cross
examination that the whole of
Joma land which used to belong
to his family and which was
acquired under E.I. 130 of 1977
measures 1502.23 acres. Indeed,
the High Court in Suit No. L
592/97 made a positive finding
of fact that the portion or
parcel of land belonging to the
1st defendant’s
family which was acquired under
E.I. 130 of 1977 measures in
extent of 1502.33 acres. The
Court therefore ordered
compensation to be paid to the 1st
defendant’s family in respect of
1502.33 acres of land.
The plaintiffs’ claim is that
their land which was acquired
measures about 4222.81 acres.
During the proceedings a
Surveyor was appointed to draw a
composite plan and superimposed
the respective site plans of the
parties thereon. The Surveyor
tendered the results of the
works undertaken by him and this
was received as exhibits CE1 and
CE2. It seems from exhibit CE2,
the composite plan that the land
shown by the 1st
defendant to the Surveyor is far
greater and indeed encompasses
the whole of the plaintiffs’
land.
Given that the plaintiffs’ land
measures about 4222.81 acres, it
implies that the land claim by
the 1st to 6th
defendants is far greater than
4222.81 acres.
The vast extent of the land
shown by 1st
defendant’s family to the
Surveyor seems to contradict the
very basis of the 1st
to 6th defendants’
case in view of their admission
that their family land acquired
by the Government and which was
found by the High Court in Suit
No. L 592/97 to be so, measures
up to 1502.33 acres. And since
the 1st to the 6th
defendants have admitted that it
is the totality of their land
which was acquired by the
Government after which they have
been resettled at Weija the
question that naturally comes to
mind is that where from that
excess land which they are now
trying to lay claim to? I hold
that the 1st to 6th
defendants have no land which
they can now describe as their
ancestral home given that the
whole of their land have been
acquired and they have been paid
compensation and resettled at a
place completely different from
the Joma lands.
The plaintiffs on the other hand
remained in possession of their
land despite the acquisition by
the Government and as pointed
out already, they have every
right to defend their possession
of the land. The conduct of the
1st to 6th
defendants in coming back to the
land and purporting to deal with
it either by sale or disposition
or otherwise constitutes
trespass to the plaintiffs’
possessory right of the land.
The Court will therefore enter
judgment for the plaintiffs
against the 1st to 6th
defendants and make an order in
favour of the plaintiffs to
recover possession of their land
taken over by the 1st
to 6th defendants and
also award general damages of GH₵20,000
against the 1st to 6th
defendants in favour of the
plaintiffs and finally restrain
the 1st to 6th
defendants together with their
grantees and others claiming
through them from interfering
with the right of possession of
the plaintiffs to the land in
dispute.
In respect of the claim for
compensation against the 8th
defendants, the Court wishes to
point out that the fact that the
whole of the land of the
plaintiffs had been acquired
under E.I. 130 of 1977 is not
disputed by any of the parties.
The Court is of the view that
the payment of compensation for
the compulsory acquisition of
one’s land or property is a
natural and a constitutional
right which cannot be taken
away. Hence, I hold that the
plaintiffs’ family is entitled
to be paid compensation for the
acquisition of their land under
E.I. 130 of 1977. The
difficulty in awarding a
specific sum to be paid as
compensation is due to the
absence of evidence to that
effect.
The Court will therefore order
the Land Valuation Board to
value the plaintiffs’ family
land acquired under E.I. 130 of
1977. This valuation shall be
carried out within four (4)
months from the date of this
judgment.
Consequently whatever sum is
arrived at by the Land Valuation
Board as the value of the
plaintiffs’ land is hereby
awarded the plaintiffs as
compensation for their land
acquired by the Government of
Ghana under Executive Instrument
130 of 1977.
The sum shall be paid by the
Government of Ghana represented
herein by the Attorney General
and the Ghana Water Company
Limited to the plaintiffs herein
as compensation for the
acquisition of the plaintiffs’
land.
Costs of GH₵20,000 the
plaintiffs against the 7th
and the 8th
defendants together and costs of
GH₵5,000 to the plaintiffs
against the 1st to
the 6th defendants
together
(SIGNED)
JUSTICE S. K. A. ASIEDU
JUSTICE OF THE HIGH COURT
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