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J U D G M E N T:
BY COURT:
By various interpleader summons
filed by the claimants against
the execution of the Judgement
of the High Court dated 15th
January 1998, presided over by
the late Nana Gyamena Tawiah in
favour of the Plaintiff, in Suit
No. L 725/95 entitled Rainsford
A. Adotey Vrs: Richard Odai,
the Plaintiff in that suit was
made the Plaintiff in this
interpleader suit and the
claimants made the Defendants,
under Order 44 Rule 13 (1) of
C.I. 47 since the dispute
between them could not be
settled summarily under order 44
Rule 12 (4).
On 20th May, 2009,
the Plaintiff filed his
statement of claim and traced
his root of title from Nii Odai
Ayiku IV Nungua Mantse by a
lease dated 15th
February, 1980. According to
the Plaintiff this lease could
not be traced so he swore to a
statutory Declaration and had
the said Statutory Declaration
plotted and Registered as LR
3495/94 and subsequently issued
with a land certificate No. TD
2565.
The Pleading stated further that
one Richard Odai without his
consent granted portions of his
land to unsuspecting members of
the public including some of the
Defendants. That the Defendants
then forcibly entered the lands
and commenced development works
on it. That several warning
notices were sent to them to
stop their trespass, but they
ignored it. He therefore sued
Richard Odai, and had Judgement
against him. The Plaintiff
pleaded further that this
Judgment against Richard Odai
affected his agents, grantees,
assigns and heirs.
After obtaining Judgment against
Richard Odai, he served a copy
of the Entry of Judgment on the
Defendants.
The Defendants filed a Defense
and denied the Plaintiff’s claim
that he was the owner of the
land that they were occupying.
They asserted that they were not
trespassers as claimed by the
Plaintiff. The Defendants
pleaded specifically that there
never existed a lease dated 15th
February 1980 made between Nii
Odai Ayiku IV and the
Plaintiff. The Defendants
pleaded further that the land
certificate was fraudulently
obtained and pleaded the
particulars of fraud. They said
the certificate should be
cancelled.
The pleading of the Defendants
stated that they never had their
plots from Richard Odai, but
rather from the Borteikwei
Family of Nungua. That as far
back as 1991 they started their
construction on the land, and
nobody challenged them. The
Defendants also pleaded estoppel
by larches and acquiescence.
On the Judgement and the
Recovery of possession, the
Defendants pleaded that it did
not include declaration of
title, and since they were in
occupation, the application for
recovery of possession should
have been served on them but
were not served. They also
pleaded that those who
negotiated with the Plaintiff
did so under duress and undue
influence, since the Plaintiff
was then holding a demolition
order.
When direction was to be taken,
the Court ordered that the
grantees of the parties be made
co-Plaintiff and co-Defendant.
After the order of joinder had
been drawn up and served, the
Co-Defendant entered appearance
and filed his defence, and
pleaded that his family was the
usufructuary owners of the land
by farming on it and put it
under their control. That they
later demarcated the land into
building plots and made grants
to developers. They took their
grantees to the Nungua stool for
documents as this is the
practice at Nungua.
Even though application for
directions were filed, the first
one by the Defendants and the
other by the Plaintiff, same was
not moved because of the Order
that the grantors of the parties
should be joined. Since the
suit has continued as if the
directions had been taken, the
issues set out in the two
applications for directions were
set down on 29th
June, 2011 as the issues between
the parties under the authority
of Ankumah vrs. City Investment
Co. Ltd (2007-08) SC. GLR 1064
and Boakye vrs. Tutuyehene
(2007-08) SC GLR 970.
The issues set down in the two
applications for directions are
as follows:
I.
Whether the Plaintiff obtained a
valid grant of the land in
dispute.
II.
Whether the Otuku Borteikwei
family of Nungua was the
usufructuary interest owners of
the land in dispute.
III.
Whether the plotting of
Plaintiffs’ Statutory
Declarations in the records of
the Lands Commission ought to be
expunged.
IV.
Whether Plaintiff’s Land Title
Registration No. TD2565 covering
the land in dispute was
fraudulent.
V.
Whether Plaintiffs demolition of
Defendant’s properties was
lawful.
VI.
Whether Plaintiff was aware of
Defendant’s possession at the
time he filed the original suit
in this matter.
VII.
Whether 13th
Defendant agreed to at one
tenant to Plaintiff.
VIII.
Any other issues arising on the
face of the pleadings.
a)
Whether or not the Nungua Stool
conveyed the disputed land to
the Plaintiff.
b)
Whether or not the Plaintiff is
the adjudged lawful owner of the
land per Judgement obtained in
the High Court.
c)
Whether or not some of the
Defendants entered into a
settlement Agreement with the
Plaintiff and are thus stopped
by conduct.
d)
Whether or not Otuku Borteikwei
family are the lawful owners of
the land in dispute.
e)
Whether or not the Defendants
have any valid title.
f)
Whether or not the Defendants
are bound by the Judgement
obtained against Richard Odai as
their grantor.
g)
Whether or not the demolition
carried out by the Plaintiff in
execution of the Judgement
entered in his favour was
lawful.
h)
Whether or not Plaintiff is
entitled to his claim.
The Plaintiff and the
Co-Plaintiff gave evidence and
called one witness. The
Co-Defendant called one witness,
whereas only one of the
Defendants also gave evidence
for himself and on behalf of the
other Defendants and also called
a witness. In all the
Defendants and Co-Defendants
called two witnesses. Since the
Plaintiff pleaded a Judgement
and gave evidence on it. Issues
‘b’ and ‘f’ filed by the
Plaintiff will be considered
first.
These issues are as follows:
(b) Whether or not the Plaintiff
is the adjudged lawful owner of
the land, per Judgement obtained
in the High Court.
(f) Whether or not the
Defendants are bound by the
Judgement obtained against
Richard Odai as their Grantor.
The Plaintiff gave evidence
about litigation between him and
one Richard Odai. The Plaintiff
gave further evidence that the
said Richard Odai is dead. The
date of the death of Richard
Odai has not been given, but
gave evidence that a copy of the
Judgement, which he tendered as
exhibit ‘A’ was served on him
and all persons on the land.
Exhibit ‘A’ is however not a
Judgement but Judgement after
Trial filed on 20th
January 1998. It was however
stated in exhibit ‘A’ that the
Defendant was absent when
evidence was taken and also he
was not represented.
The Contents of Exhibit ‘A’
negates the Plaintiff’s evidence
under cross examination to the
effect that the said Richard
Odai appeared in Court, with a
lawyer but when the lawyer
failed in coming from the
beginning, he opted for another
lawyer in the name of Agbakli
Zakli, who started the case with
Richard Odai to give evidence
and the case was completed.
Since the Judgement that the
Plaintiff pleaded and gave
evidence on is a default
Judgement and there is no
evidence that the Judgement
after trial, Exhibit ‘A’ was
served on the said Richard Odai,
a Court should be slow in
admitting it as a Judgement that
has settled the interest of the
parties, even if the Defendants
had their grants from the said
Richard Odai.
I have also noticed from Exhibit
‘A’ and Exhibit ‘H’, the writ
from which exhibit ‘A’ emanated,
that it did not include a claim
for declaration of title.
Exhibit ‘H’ had three reliefs
which were as follows:
I.
An order for Recovery of
Possession.
II.
An order of perpetual Injunction
to restrain the 2nd
claimant from interfering with
the 1st claimant’s
quite enjoyment of his land.
III.
General Damages for trespass.
A closer look at exhibit ‘H’
also raises a lot of suspicion.
The endorsement described the
parties as 1st
Claimant and 2nd
Claimant.
It is also supposed to have been
filed together with a statement
of claim all filed on 23rd
October, 1992, yet a Suit Number
typed as L.A.C 02/01 had been
cancelled and the number 725/95
written with pen, but not
signed. There is no explanation
as to how a paper prepared on 20th
October 1995 and filed on 23rd
October 1995 contains a typed
Suit No of L.A.C. 02/01.
Be it as it may, even if Exhibit
‘H’ is the writ and the
statement of claim, it is clear
that it did not contain
‘Declaration of Title’. It
cannot also be said that the
Judge granted the Plaintiff
declaration of title, since
exhibit ‘A’ the Judgement after
Trial also did not include
‘Declaration of Title’, the
Defendants could not be bound by
that Judgement with regard to
Declaration of Title even if
they had acquired their plots
from the said Richard Odai, as
was held in the case of Aryitey
Vrs. Ayeley (1962) 1 GLR 225.
I therefore hold that the
Plaintiff had not been adjudged
lawful owner of the land, per
Judgement Obtained in the High
Court.
On issue ‘f’ the Defendants
pleaded that they never had
their plots form the said
Richard Odai. The burden was
therefore on the Plaintiff to
prove that the Defendants had
their grants from Richard Odai
even if his earlier claim
included an order for
Declaration of title. This, the
Plaintiff failed woefully to
prove. It is therefore my
holding that the Defendants are
not bound by the Judgement
obtained against Richard Odai.
In the statement of claim that
accompanied exhibit ‘H’ the
Plaintiff pleaded in his
paragraph 7 that ‘The Defendant
has however encroached on part
of the Plaintiff’s land,
disposing of same to prospective
purchasers who are feverishly
developing the land. This was
filed on 23rd October
1995.
In paragraph 6 and 7 of the
Plaintiff statement of claim,
the Plaintiff pleaded as
follows:
(6) Plaintiff avers that one
Richard Odai without his consent
and authority began to grant
portions of his land to
unsuspecting members of the
public including some of the
Defendants herein.
(7) The Plaintiff says the
Defendants forcibly entered the
lands and commenced development
works on same despite warning
notices to them to abate their
acts of trespass.
The import of these paragraphs
in the Plaintiffs pleading is
that he was aware of the
presence of the Defendants on
the land before he instituted
action against Richard Odai,
thinking he Richard Odai gave
the land to the Defendants. He
should have sued the Defendants,
in the first suit, for them to
name their grantor. It was
therefore wrong on the part of
the Plaintiff to sue Richard
Odai, obtain a default Judgement
against him and attempt to serve
a copy of that Judgement on the
Defendant, even if it is true
that he did serve them with a
copy of that Judgement since
they are strangers to that
Judgement.
Before dealing with the
enforcement of that Judgement on
the Defendants, I will want to
resolve issues ‘I’ and ‘a’
together. These issues are as
follows:
(I)
Whether the Plaintiff obtained
a valid grant of the land in
dispute.
(a)
Whether or not the Nungua
Stool conveyed the disputed
land to the Plaintiff
The Plaintiff traced his root of
title form the Nungua Stool and
tendered Exhibit ‘E’ and ‘E1’ as
his root of title. Exhibit ‘E1’
is alleged to be a lease from
the Niangua Stool and signed by
Nil Odai Ayiku IV Nungua Mantes
with the Consent and Concurrence
of the principal members of the
Stool on 15th
February 1980.
The evidence of the Plaintiff on
Exhibit ‘E1’ is that he sent it
to Lands Commission for
processing. After they had
worked on it to a certain level,
the Lands Commission called him
to send the document to go and
pay the value of the land.
After it had been stamped, he
made a photocopy and sent the
original back to lands
commission, who misplaced it and
asked him to make a Statutory
Declaration and attach the
photocopy to it.
A close examination of the
photocopy marked as Exhibit ‘E1’
shows that it was not executed
in terms of the Conveyancing Act
1973 (N. R. C. D 175). Section
40 (1) of the Conveyancing Act
1973 (N.R.C.D. 175) makes it
mandatory that a Conveyance be
executed in the presence of and
attested to by at least one
witness.
Even though the Plaintiff’s
evidence is that he photocopied
Exhibit ‘E1’ after Lands
Commission had worked on it for
some time, it had not been
attested to by any witness that
Nii Odai Ayiku IV executed it.
On its face, it had never gone
before any Court or the
Registrar of lands. The Oath of
proof has not bee executed. The
certificate of execution at the
side of page 1 has also not been
executed.
It is trite knowledge that
before a document is presented
to lands commission for
processing the Execution must
have been completed but in the
case of Exhibit ‘E1’, it had not
been done. Since the land is
Stool land the Regional Chairman
of lands Commission should have
also given his concurrence under
Section 47(1) of the provisional
National Defence
counsel(Establishment)
proclamation (Supplementary and
consequential provision) Law,
(P.N.DC.L 42) and Article 267
Clause 3 of the 1992
Constitution, but this was not
done. Ref to Serwah Vrs: Adjen
II alias Nkrumah (1992) IGLR 296
Apart from Nii Anang Sueye who
signed as a witness, but never
proved the instrument before any
Registrar, all the principal
members thumb printed it,
without evidence that the
document had been correctly read
over and explained to the
illiterates who thumb printed
it. This contravenes the
mandatory provisions of the
Illiterates Protection
Ordinance, Cap 262 (1951 Rev).
In the case of Yalley vrs. Kell
and Another (1995-96) 1 GLR 91,
the Court of Appeal followed the
Supreme Court decision in
Boakyem and others vrs. Ansah
(1963) 2 GLR 223 and held that
where an illiterate thumbprint a
document without evidence that
the document was interpreted to
them that document will not bind
the illiterate. Antie & Adjuwah
vrs. Ogbo (2005-06) SC GLR 494
and Nartey vrs. Mechanical
Lloyed Assembly Plant (1987-88)
2 GLR 314 also holds the same
principle.
In this case, the fact that
there is no evidence that
Exhibit ‘E1’ was interpreted to
the elders before they
thumbprinted; and there is
evidence from the Co-Plaintiffs
representative that it was in
1994 that the elders signed the
photocopy of exhibit ‘E1’, I am
unable to accept it as the Deed
of the Nungua Stool. This
evidence of the Co-Plaintiff
that ‘E1’ was signed in 1994 was
given in the evidence in Chief
as follows:
Q. After the 1st
Plaintiff had been given this
indenture, did he report
anything to the grantors?
A. “Yes my Lord. He reported
that when he sent the indenture
to lands commission, they took
it and said they were working on
it. After sometime, they said
they could not trace it. He
said he found a photocopy of the
document. That Lands commission
had asked him to make a
declaration so the photocopy of
the document had to be signed by
the elders, and this took place
in 1994”.
If the Plaintiff actually
presented Exhibit ‘E1’ to Lands
Commission, and it was misplaced
by them, then Lands Commission
should have declared that it was
sent to them but has been
misplaced or that the Nungua
Stool should have prepared a new
lease and recited in it that the
land was given to the 1st
Plaintiff in 1980 and prepared a
lease for him, but has been
misplaced during the processing,
but this was not done. The 1st
Plaintiff, who claims the land
was leased to him, was the very
person who declared but not the
person or the body who is
alleged to have given the land.
P. W. 1, who testified for
Plaintiff, did so in his prite
capacity and not as an official
from Lands Commission. This is
more evident from his evidence
that in 1999, he was transferred
from Lands Commission to A.M.A.
The Statutory Declaration
exhibit ‘E’ was declared at
Accra on 3rd Day of
June, 1994. The very person
Rainsford A. Addotey, who made
the Declaration also declared
that “he Rainsford A. Addotey on
3rd day of June,….18,
was present and saw Rainford A.
Addotey (himself) duly executed
the instrument now produced to
him and marked ‘A’ and that the
said Rainsford A. Addotey can
read and write”.
After carefully assessing
exhibit ‘E’ I hold that these
are self serving documents
prepared by the Plaintiff who
was secretary to the Nungua
Stool, for himself.
It must be noted that it is now
trite knowledge that Nii Odai
Ayiku IV was destooled on 13th
June 1967 as per E1 18 of 1983.
This is confirmed by the case of
In Re Nungua Chieftancy Affairs;
Odai Ayiku IV vrs. Attorney
General, (2010) SC GLR 413. By
this destoolment, even if Nii
Odai Ayiku IV had properly
executed exhibit ‘E1’ the basis
of exhibit ‘E’ the Nungua Stool
will not be bound, since Nii
Odai Ayiku IV had no capacity to
execute documents on Nungua
Stool land in his capacity as
Nungua Mantse.
It is on record that the same
Nungua Stool executed the lease
in exhibit ‘6’ to Nicholas
Korlenor in 1996, exhibit ‘5’ to
Madam Margaret Abena Nyarko in
1995. Nii Bortrabi Obroni II,
Mankrado and Acting Nungua
Mantse also executed exhibit ‘4’
for Mr. and Mrs. Leticia Yeboah
on 21st October,
1998, exhibit 3 by Nii Afotey
Odai IV Nungua Dzaasetse(Acting
Nungua Mantse) for Madam Alice
Bilson and Sons in April 1995
and exhibit 2 also by Nii Afotey
Odai in 1995 for Matilda
Akowuah.
If the Nungua Stool had actually
executed exhibit ‘E1’ for the 1st
Plaintiff any further lease of
the same land to the Defendants
would have been null and void,
if the plots were not occupied
at the time that the stool
purportedly leased same to the 1st
Plaintiff.
However the evidence by the
Co-Plaintiff supports the
evidence of the Co-Defendant
that the land was being farmed
on at the time that the 1st
Plaintiff said it was leased to
him. According to the
Co-Plaintiff, if one is farming
on a piece of land and somebody
expresses interest in that land
the person need to approach the
person farming that land, and if
that person is interested in
giving it out, the Stool can
then make a grant to the person
who is interested in the land.
This practice follows the
general conditions of the right
of usufructuary holder. In the
case of Nyamekye vrs. Ansah
(1989-90) 2 GLR 152, it was held
that “the customary law position
was that even though individuals
and families might first
cultivate on land it was the
stool which first settled on the
land that had the allodial title
in the land. The occupation of
land by individuals or families,
quarters and sub-divisions of a
community was therefore a sine
qua non to acquisition of land
by a stool. But any portion of
unoccupied or vacant land which
individual members of that
community or tribe were able by
their labour to reduce into
their possession became the
individual’s property, and land
so occupied would belong to
their families after the
individual’s death. The
interest that the individual or
family would hold was the
determinable or usufructuary
estate in the land and it was
concurrent with the existence of
the absolute ownership in the
stool. So long as the subject
or family acknowledged their
loyalty to the stool or tribe,
their determinable title to the
portion of stool land they
occupied prevailed against the
whole world, even against the
stool, community or tribe. On
the evidence, the whole land
belonged to the royal Ekissi
family and therefore the
allodial title was vested in the
Kajebil stool. But since the
Plaintiff’s family had exercised
ownership rights over the land
in dispute and continued the
exercise of those rights, the
land had acquired the character
of family land which the head of
family with concurrence of its
members was entitled to occupy
as family land and which right
included all the incidents of
living, whether by residence on
the land by members of the
family or by lease of the land
to strangers provided they did
not alienate the land from the
stool. The stool could not
therefore deprive them of the
land in dispute”.
Again in Ohimen vrs. Adjei &
Anr. (1957) 2 W.A.L.R 275 it was
held amongst others that ‘A
stool may not alienate Stool
lands in the Occupation of a
Subject-grantee save with (inter
alia) the consent in advance of
the subject-grantee. The case
of Duah vrs. Yorkwa (1993-94) I
GLR 217 held that a person in
possession must be protected.
In this case for the Plaintiff
to succeed, he must establish
positively that the land that he
claims, has been properly leased
to him by the Nungua Stool. The
case of Duah vrs. Yorkwa (Supra)
also said the obligation to
adduce evidence is first on
Plaintiff.
Since the 1st
Plaintiff’s root of title is the
Nungua Stool, he must establish
that the Stool made a valid
lease of the land to him.
Failure to establish that is
fatal to the Plaintiffs case.
This was the decision in
Ogbarmey Tetteh vrs. Ogbarmey
Tetteh (1993-94) 1 GLR 353.
The Plaintiff attempted to rely
on Exhibit E, the Statutory
Declaration which has been
registered. The Supreme Court
decision in In Re Ashalley Botwe
Lands; Adjetey Agbosu and others
vrs. Kotey and others (2003-04)
SCGLR 420 at Page 452 says as
follows “Generally, Statutory
Declarations per se were self
serving and so of no probative
value, where the facts as in the
instant case had been challenged
or disputed. In any event a
Statutory Declaration was not a
registered document under the
Land Registry Act 1962 (Act 122)
nor was it a deed or conveyance
purported to create or convey an
interest in land. The Court of
Appeal therefore erred in
upholding the validity of the
Statutory Declaration because
the Lands Commission had taken a
decision (not yet set aside by
Court) and accepted as true the
contents of the Statutory
Declaration submitted to it by
the 1st Defendant’s
family”.
In this case, exhibit E1,
attached to exhibit ‘E’ is
alleged to have been signed by
Nii Odai Ayiku IV in 1980 at a
time that he had seized to be
Nungua Mantse, and those who
were alleged to have executed
with him all thumbprinted
without an illiterate jurat.
Again Exhibit ‘E1’ has also not
been executed in accordance with
the conveyancing Act. I
therefore hold that the
Plaintiff did not obtain a valid
grant of the land in dispute
form the Nungua Stool.
Since the Plaintiff did not
obtain a valid grant of the land
in dispute from the Nungua
Stool, its subsequent plotting
in the records of Lands
Commission and registration and
issuance of Land Title
Certificate No TD 2565 are all
null and void and must be
cancelled under section 122 of
Land Title Registration Act,
1980 (P.N.D.C. L. 152) and as
held by the Supreme Court in the
case of Brown vrs. Quarshigah
(2003-04) SC GLR 930. I
therefore order that the said
land certificate number Td 2565
be cancelled.
On the issue of whether or not
the Otuku Borteikwei family are
the lawful owners of the land in
dispute, I accept the evidence
of the Co-Defendant that his
family was farming on it. Since
the Co-Plaintiff himself
admitted under cross-examination
that the land was being farmed
on by the Otuku Borteykwei
family and the Plaintiff himself
also admitted same through the
cross examination of the
Co-Defendant.
It is trite that where the
evidence of one party on an
issue in a suit is corroborated
by the witnesses of his
opponent, whilst that of his
opponent on the same issue
stands uncorroborated even by
his own witnesses, a Court ought
not to accept the uncorroborated
version in preference to the
corroborated one unless for some
good reason (which must appear
on the face of the judgement)
the Court finds the corroborated
version incredible or
impossible. Dicta of Ollienu J.
(as he then was in Trifo vrs.
Dua VIII (1959) GLR 63 at
pp64-65, then in Osei Yaw and
Another Vrs. Domfeh (1965) GLR
418 and Tonado Enterprises and
Others vrs. Chou Sen Lin
(2007-08) SC GLR 135.
On issues ‘v’ and ‘g’ being
(v). whether Plaintiff’s
demolition of Defendant’s
properties was lawful.
(g). Whether or not the
demolition carried out by the
Plaintiff in execution of the
Judgement entered in his favour
was lawful.
The procedure laid down in the
High court Rules C.I. 47 of
2004, will have to be considered
in line with how it was done in
this case. Enforcement of
Judgment for possession of
immovable property is governed
by Order 43 Rule 3 of C.I. 47.
Order 43 Rule 3 (2) says
“A writ of possession to enforce
a Judgement or order for the
recovery of possession of
immovable property shall not be
issued without leave of the
Court, except where the
Judgement or order was given or
made in a mortgage action to
which order 56 applies.
Order 43 Rule 3 (3) says leave
shall not be granted unless it
is shown that every person in
actual possession of the whole
or any part of the immovable
property has received such
notice of the proceedings as
appears to the Court sufficient
to enable the person apply to
the Court for any relief to
which the person may be
entitled.
Order 44 Rule 9 (1) of C.I. 47
also says “for the purpose of
execution a writ of execution
shall be valid in the first
instance for twelve months
beginning with the date of its
issue.
In this case, the Judgement was
obtained on 15th
January, 1998. There is no
evidence from the Plaintiff to
indicate when the writ for
possession was issued, and
whether it was served on the
Defendant in that case or not.
The evidence of the Plaintiff
under cross-examination however
makes it clear that the said
Richard Odai and the Defendants
in this case were not served
with the application for the
issuance of a writ of
possession.
The evidence of Defendants
spokes person was that they were
not served with any of the
processes, except that some time
in October 2003, Court Notices
were pasted on their premises.
They realized from the notice
that the case was between
Richard Odai and the Plaintiff
and since they had no dealings
with both parties, they went to
their grantors and informed
them.
Whilst the Plaintiff was under
cross examination, he gave
evidence as follows:
Q. Can you tell the Court who
pasted the orders on the wall?
A. Yes, it was the bailiff.
When we went, those that we met
we gave them by had, and those
that we did not meet we pasted
on their walls. The bailiff is
called Mr. T.; I don’t know his
entire name.
Q. I am putting it to you that
no court gave you an order to
serve or paste on walls.
A. When I had the Judgment, the
bailiff served copies on Richard
Odai’s workmen and those we met
we served them and those that we
did not meet we pasted on their
walls............
The import of the above
questions and answers was to the
effect that the Defendants were
not privies to the Judgment that
the Plaintiff was executing. If
it was the court that ordered
that the Defendants should be
served with copies of the
Judgment by the method adopted,
the Plaintiff should have led
evidence to that but this was
not done.
Not having served the occupants
of the land with the application
for the issuance of the writ of
possession in accordance with
Order 43 Rule 3 (3), the
subsequent order to demolish the
Structures on the land, as
contained in exhibit ‘B’ is null
and void.
Exhibit ‘B2’ indicated that the
order for demolition was
directed at Richard Odai, but
not the Defendants in this
case.
Having directed the Sheriff to
demolish the buildings of the
Defendants, who were not parties
in that suit, it is my holding
that the demolition of the
Defendants properties carried
out by the Plaintiff in
execution of the Judgment
entered in his favour was
unlawful.
Since it was the Plaintiff who
directed the Sheriff to the
houses of the defendants, the
Sheriff is considered as the
agent of the Plaintiff. The
acts of the Sheriff are
therefore the acts of the
Plaintiff and must therefore
suffer for the consequences of
the destruction.
The Defendants gave evidence
that six of them had their
houses partly damaged with a
bulldozer. To prevent further
damage to their properties, they
approached the Plaintiff and
entered into an agreement with
him. Considering the
circumstances surrounding the
execution of exhibit ‘C’ series
I hold that they entered into
that agreement under duress and
undue influence and therefore
it’s null and void.
Since the only figure given for
the extent of damage is GH¢
24,707.20 as pleaded and given
evidence on by D.W. 1 I accept
same as the cost of Damage to
the houses of the Defendants.
In summary, I dismiss the
plaintiffs claim.
The Defendants did not put in a
formal Counter Claim, but in
paragraphs 4, 5, and 17 of their
statement of Defence which is
reproduced below, it is my
candid opinion that they had a
counter-claim for those
reliefs. The Pleading referred
to are as follows:
4)
Defendants deny paragraph 4 of
the statement of claim and say
that any such Statutory
Declaration contained only self
serving falsehood and des not
amount to a grant of any land to
Plaintiff and same ought to be
expunged from the records of the
Lands Commission by order of
this Court.
5)
Paragraph ‘5’ of statement of
claim is denied and Defendants
say that any Land Certificate
given to Plaintiff was
fraudulently obtained and ought
to be cancelled by order of this
court. The particulars of Fraud
were also given.
17)
Defendants deny paragraphs 11
and 12 of the statement of claim
and say that those that dealt
with the Plaintiff were not
parties and in any event they
acted under duress and undue
influence under circumstance
that amounted to negotiation for
settlement and compromise to
avoid litigation since Plaintiff
was holding a demolition order
and under the laws such matters
are privileged and cannot form
the basis of a claim in Court.
In any event Plaintiff
unlawfully demolished Defendants
building to the value of
GH¢24.707.20 as at 21st
January, 2007 and he ought to
pay that amount with interest.
A Court ought to do justice to
the parties and, should not
close its eyes to the pleading
above.
I am aware that a Court ought
not to grant to a party what
that party has not asked for.
However in the case of HANNA
ASSI (No.2) vrs. GIHOC
REGRIGERATION & HOUSEHOLD
PRODUCTS LTD (No. 2) (2007-08)
SC GLR 16, the Supreme Court
held that “the majority of
the ordinary bench erred in
affirming the decision of the
Court of appeal which held that
in the absence of a
counter-claim the trial Court
had no jurisdiction to grant the
reliefs of declaration of title
and recovery of possession of
the disputed property to the
Defendant, i.e. the applicant.
Those reliefs were clearly
established on the evidence. In
such a situation, the essential
consideration was whether there
was surprise or unjust denial of
opportunity to meet the matters
concerned …..”
Again in the case of Ackah vrs.
Pegah Transport Ltd and others
(2010) SC GLR 728, the Supreme
Court held in its holding ‘3’
that “Although the Plaintiff
in his writ, did not ask for an
alternative relief, the Court of
Appeal had rightly held that the
first and second defendants
ought to refund to the Plaintiff
the loan of GH¢20,000.00 which
he had obtained from them to
make the down payment for the
house, because it was the
court’s duty to do substantial
justice; and from the
circumstances of the case,
failure to make such an order
would have occasioned a grave
miscarriage of Justice”.
Since the Defendants have
suffered damage, as a result of
the Plaintiffs unlawful
execution of his Judgement on
them and the loss or the damage
had been made known to the
Plaintiff,
I order the Plaintiff to pay to
the Defendants
a)
The total sum of GH¢24, 707.20
with current lending interest
rate from 21st
January 2007 to date of
Judgment.
b)
The Regional Officer, Lands
Commission, Accra is ordered to
expunge from the Records of
Lands Commission Statutory
Declaration No AR/NU/115/94 with
Land Registry No. 3495/1994.
c)
Land Certificate Number TD 2565
Volume 018, Folio 1021 issued on
23rd Day of May, 2008
in favour of the Plaintiff is
also to be cancelled, by the
officer in charge of the Land
Registry Division of Land
Commission, Accra.
Cost of GHc1,000.00 is awarded
in favour of each Defendant,
against the Plaintiff.
Counsel:
Mr. Amon Kotei holds Felix
Quartey for Plaintiffs.
Mr. Gabriel
Pwamang for Defendant and co-
defendant
SGD. MR. JUSTICE S.H. OCRAN
(Justice
of the High Court)
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