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J U D G E M E N T
The Plaintiff by his amended
writ dated 19th
October 2005 claimed against the
defendants jointly and severally
the following
-
A declaration of title of
the land described in the
schedule attached to the
statement of claim.
-
A further declaration that
the 1st defendant
has breached the leased
agreement between plaintiff.
-
Perpetual injunction
restraining the defendants
their agents servants and
assigns from interfering
with plaintiffs land.
-
Damages for trespass.
On 11th
November 2008, the plaintiff
filed an amended statement of
claim leave of which was granted
on 10th November 2008
to amend the claim by adding a
new paragraph which was captured
in paragraph 6 of the affidavit
in support of the application
for leave to amend the statement
of claim. By that amendment a
new paragraph numbered as
paragraph 8 was added.
The amended writ
referred to was filed on 19th
October 2005 without leave of
the court.
At the time that it was filed,
two other writs with the same
suit number BL261/2005 had been
filed on 17-2-05 and on 9-5-05,
The one filed on 17-2-05 was
headed as follows
NII ANOI LANTEY FAMILY AKOTO
LANTEY ACCRA
VRS
1. MOGYABI YEDOM LIMTED
2. AUNTIE MERLEY
3. CHALES TINKORA
4. MATILDA APAW
5. MR, DOUDU
6. MR, YERENKYI
7. AUNTIE ATAAH
8. AKOTO BAMFO
It was accompanied by a
statement of claim headed
NII ANOI
LANTEY FAMILY
VRS
MOGYABIYEDOM
LTD & 15 ORS
In the statement of claim, the
plaintiffs were not named and no
explanation was given as to how
the defendants are eight in the
writ but 16 in the statement of
claim.
The writ filed on
9-5-05 was headed as follows
SAMUEL DOUGLAS LANQUAYE LAMPTEY
VRS
-
MOGYABI YEDOM LIMITED
-
AUNTIE MARY
-
CHARLES TINKORA
-
MATILDA APAW
-
MR DOUDU
-
MR. YEREKYI
-
AUNTIE ATAAH
-
AKOTO BAMFO
No statement of claim was
attached to this writ dated
9-5-05
Since no statement of
defence had than been filed,
this writ may be considered as
amended writ of summons,
effected without leave of the
court as pleadings had then not
closed.
The endorsement on this
writ was as follows
1. A declaration of title to
land described in the statement
of claim.
2. A further declaration that 1st
defendant has breached the lease
agreement between it
and plaintiff.
3. Perpetual injunction
restraining the defendants,
their agents, servants and
assigns from interfering with
the land.
In this writ filed on 9th
May 2005, there was no claim for
damages.
Even though no
indication has been given in the
statement of claim as to the
persons, described as other
defendants, on March 2005 Mr
C. K. Hoeyi of Koi Larbi &co
entered appearance for the 9th
defendant, even though there was
no 9th defendant On
15th March 2005
defence was filed for the 9th
Defendant. On 8th
March 2005, the 10th
defendant also entered
appearance per Messers Law Trust
Company.
On 30th May 2005,
the Plaintiff conducted a search
to inquire whether the
defendants have been served with
the writ of summons. The
reply to the search indicated
that the defendants have been
served and that the service was
on 1st March 2005.
This result of the search is not
true because on 28th
April 2005, one George Ankrah a
Grade 1 bailiff attached to the
High Court, Accra, swore to an
affidavit of non service to the
effect that he was entrusted
with a writ of summons and a
statement of claim to effect
service on Mogyabi Yedom. That
when he went to Mogyabi Yedom he
was informed that Mogyabi Yedom
was dead, and he returned same.
The plaintiff himself did
not believe the search result
that he conducted on 30th
May 2005, because on 25th
January 2006 plaintiff filed a
motion ex-parte for leave to
serve the 1st, 5th,
8th, 11th, 15th and
16th defendants by
substitution.
The search result of 30th
also revealed that the 9th
and the 10th
defendants had then entered
appearance and the 9th
had filed a defence to the
action,
On 29th September
2005 reply to the 9th
defendants defence, and
application for direction was
filed by the Plaintiff.
The 9th defendant
also filed additional issues on
10 -10-05.
The Plaintiff could not
therefore file amended writ of
summons on 19th
October 2005 without leave of
the court, since by order 11
Rule 4 of C.I.47, No pleading
subsequent to a reply shall be
filed except with leave of the
court.
The amended writ of summons
filed on 19th October
2005 is therefore null and
void. The only valid writ is
that filed on 9th May
2005, which writ shall be taken
as amended writ of summons.
From the information on the
docket, this amended writ of
summons filed on 9th
May 2005 and the amended
statement of claim filed on 11th
November 2008 were not served on
the 1st defendant.
On 13th
February 2006, the plaintiff’s
application for substituted
service was granted and drawn
up. The drawn up order stated
that “ The writ of summons and
the statement of claim filed on
25th day of
January2006 should be served on
1st, 5th
,8th ,11th
and 16th defendants
by posting same, on the High
Court Notice Board, Accra and on
the piece of land, the subject
matter of dispute.
Even though there is
affidavit of service by Kofi
Aseidu that on 28th
day of February 2006 he affected
the service as ordered, he
posted the writ filed on 19th
October 2005, which I have
declared to be null and void,
and the writ filed on 17th
February 2005 which is also not
the writ because of the writ
filed on 9th May 2005
which I have accepted as an
amended writ because the
plaintiff had the right to file
without leave since pleadings
had then not closed.
Mr Kofi Aseidu the
bailiff cannot be blamed because
the order did not state which
writ is to be served. The
affidavit in support of the
application for substituted
service filed on 25th
January 2006 did not also state
which writ is to be \served by
substitution.
The order for substituted
service which was also posted
stated as follows “ writ and
statement of claim filed on 25th
day of January 2006 “
Since no writ and statement of
claim were filed on 25th
January 2006, the bailiff posted
what he laid hand on. No
attempt was also made to serve
the amended statement of claim
filed on 11-11-08, on the 1st
and the order defendants, except
the 6th and 9th
defendants.
The alleged substituted
service on the 1st
defendant, even if the proper
writ of summons had been posted,
would still not have been proper
service on 1st
defendant.
As far back as 25th
April 2005, an affidavit of non
service due to the death of
Mogyabi Yedom had been filed by
the bailiff. On the face of the
writ of summons, the 1st
defendant is a limited liability
company. Order 7 Rule 5(1) of
C.I.47 should have been applied
with regard to the service of
the writ and the statement of
claim.
Rule 5 of order 7 says “service
of a document on a body
corporate may in cases for which
provision is not otherwise made
by any enactment be effected by
serving it on the Chairman,
president or the managing
director, secretary, treasurer
or other similar officer of it.
The companies code Act179, which
regulates companies in Ghana
makes provision for service of
documents on companies, in
section 263 of Act 179.
Even though subsection 5 of
section 263 of Act 179 permit a
court to direct how service
shall be effected, it is my
candid view that the substituted
service ordered was not proper
since there is an affidavit from
the bailiff that 1st
defendant was dead at the time
that the writ was issued. From
exhibit ‘A’ and ‘B’ it can be
seen that Janet Ofosua is the
Managing Director of 1st
defendant who acted on behalf 1st
defendant’s company. The
reference to the death of
Mogyabi Yedom therefore refers
to the death of Janet Ofosua
There is also evidence from
P.W.5 Mr Kwame Dodi that Mogyabi
Yedom died in 1992/93. Again
the 9th defendant
also gave evidence that Mogyabi
yedom died in 1994, and as soon
as she died the plaintiffs in a
jubilant mood went to the area
and gave them the information
that Janet Ofosua was dead, and
since they bought the land from
Mogyabi Yedom, they should see
them quickly otherwise will take
them to court. The 9th
defendant was not cross examined
on this.
Since it is accepted that
Janet Ofosua was dead, and there
is no evidence that the company
continued to exist after the
death of Madam Janet Ofosua, in
1994, the issuance of a writ in
2005 and a purported service on
a dead person will not be
proper.
In Ghana, under section
8 of the companies code
1963(Act179) one person can form
a company. Section 80 of Act 179
however says there must be at
least two directors of that
company. Since Madam Janet
Ofosua was dead in 1994 the
plaintiff was duty bound to have
conducted a search at the
Registrar Generals Department to
know whether the company was in
existence at the time that the
writ was issued, and if in
existence, the particulars of
other directors should have been
obtained so as to be able to
serve them personally or by
substitution.
This was not done. I
therefore hold that the 1st
defendant was not served with
the writ and the statement of
claim, and therefore the
plaintiff cannot enter Judgement
against it.
To date the Plaintiff has not
taken any Judgement against the
1st or any of the
other defendants. Before the
plaintiff can succeed against
the 6th and 9th
defendants who are contesting
the suit, the Plaintiff must
succeed against the 1st
defendant that, exhibit ‘B’
which is a conveyance of land
was a forgery and set same
aside. Until that is done the 6th
and 9th defendants
who claim to have purchased
their plots of land from the 1st
defendant cannot be dispossessed
of their plots.
In the defence of the 6th
and 9th defendants, the capacity
of the plaintiff was challenged.
They also stated that their
grantor purchased the land from
George Odaitei Lamptey, Koshie
Lamptey, Lantie Lamptey and
their brothers and sisters of
Accra. This conveyance was
executed as AC2781A/83 and
registered at Land Registry as
1996/1983.
The issues which were set
down by the court on 2nd
November 2005, between the
plaintiff and the 9th
defendant were as follows.
-
Whether or not the Anoi
Lantey Family is the
allodial owners of the land
in dispute.
-
Whether or not 1st
defendant has breached
covenants in the lease
agreement of 1st
day of June 1973.
-
Whether or not 1st
defendant fraudulently
executed a conveyance dated
the 10th day of
September 1975 and conveyed
the land in dispute to
itself.
-
Whether or not defendants
are trespassers on the land
in dispute.
-
Any other issues arising out
of the pleadings.
The
additional issues were as
follows
-
whether or not the
Plaintiffs action is statute
– barred by virtue of the
provision in section 10 of
the limitation Decree 1972.(
N.R.C.D. 54 )
-
Whether or not the
Plaintiff’s action is
fraudulent.
-
Whether or not the Plaintiff
is caught by own conduct and
therefore not entitled to
the relief sought.
-
Whether or not the 9th
defendant is entitled to his
counter claim.
Apart from
these issues no other issues
were raised after the 6th
defendant had filed his defence
on 18-1-06. No reply to the
defence was filed. Again after
the amended defence of the 6th
and 9th defendants
were served on the Plaintiffs
counsel on 3rd
December 2008, no reply was
filed and no issues were raised.
The suit was therefore fought on
the issues set out by the court
on 2nd November 2005,
at a time that the 6th
defendant was not a party.
I am not
unmindful of the fact that where
a party has not been served with
an application for direction, a
trial of that case without a
direction is nullity However
since in this case, direction
had been taken and the issues
and additional issues agreed on
before the 6th
defendant filed his defence, and
considering the fact that the 6th
defendant gave evidence without
complaining, the non raising of
further issues when the 6th
defendant filed his defence will
be considered as an mere
irregularity that can be cured
by order 81 Rule ( 1 ) as was
held by the Supreme Court in
Boakye vrs Tutuyehene
(2007-08) S C GLR 970 .
Taking issues
“a” of the directions which
reads as follows “whether or not
the Anoi Lantey Family is the
allodia owner of the land in
dispute and issue”2” of the
additional issue which reads as
follows “whether or not the
Plaintiffs action is fraudulent,
I will consider these two issues
as follows “whether the
Plaintiff has capacity to
commence this action in respect
of the land in issue” as
belonging to Anoi Lantey Family”
Paragraphs 1, 2, 3, and 4
of the amended statement of
claim is as follows
1. The Plaintiff is the acting
head of Nii Anoi lantey family.
2. Plaintiff was appointed to
the position at a family meeting
held at the family house
at Akoto Lantey in Accra.
3. Plaintiff avers that his
family is the allodial owner of
the land and
herediterments
herein-after described in the
schedule.
4. 1st defendant
is a limited liability company
in Accra and a lessee of the
land in dispute. The other
defendants are trespassers. The
6th and 9th
defendants denied paragraphs 1,
2, and 3 of the statement of
claim.
In paragraph 5 of the 9th
defendant’s defence, he stated
as follows
5. “In further answer to
paragraph 4 of the statement of
claim, the 9th
Defendant states that the land
in dispute was purchased from
George Odartey Lamptey, Koshie
Lamptey, Lantie Lamptey and
their brothers and sisters of
Accra by the 1st
Defendant company by virtue of a
conveyance dated the 10th
day of September 1975 duly
executed and stamped as A C
2781Aand registered as LAND
REGISTRY NO. 1996 /19831.
The 6th Defendant
also stated in his paragraph 8c
and 8d that his grantor
purchased the land from
individuals in their private
capacity and the Plaintiff has
no capacity.
This being the state of the
pleadings, the Plaintiff must
proof that the land was leased
to the 1st defendant
by the Nii Anoi Lantey family
whose acting head is himself,
for him to have capacity. To
prove this the plaintiff
tendered both exhibit “A” and
“B”.
In exhibit “A” there is not the
slightest indication that the
lessors being George Odartei
Lamptey,Koshie Lamptey and
Lantey Lamptey executed the
lease on behalf of any family.
This Nii Anoi Lantey family was
not mentioned in any of the
exhibits.
Exhibit “A” stated that “ the
Lessors being seized for an
estate in fee simple in
possession free from all
incumbrances and are being
otherwise well and truly
entitled to All that piece or
parcel of land-----------------
Exhibit “B” which was also
tendered by the Plaintiff was
also between George Odartei
Lamptey, Koshie Lamptey and
Lantei Lamptey for and behalf of
all their brothers and sisters
all of Accra.
They described themselves as
owners of the land and
hereditaments. Again no mention
was made of Nii Anoi Lantey
family.
Since these exhibits did not
mention the Nii Anoi Lantey
family as the owner of the land
and the Lessors and the vendors
also did not act in the name of
a family but as owners of the
land, even if the Plaintiff is
the acting head of the Nii Anoi
Lantey family, he cannot recover
the land for the Nii Anoi
Lamptey family.
On this basis issue ‘a’
of the original issues is
decided against the Plaintiff.
Since the land did not belong to
the Nii Anoi Lantey family but
the Plaintiff is claiming the
land for the family, it may be
said that the Plaintiff’s action
is fraudulent in so far as he is
claiming the land for that
family.
P.W. 5 Kwame Doddi Ofori also
said one Mr Annoi Lantey gave
him land and he tendered exhibit
‘D’.
According to him the land that
the 6th and 9th
defendants occupy is part of his
land.
This exhibit ‘D’ is dated
19th July 1965. It
was leased by Mr Anoi Lantey for
50 years, from 1965. It will
therefore expire in 2015. That
being the case, even if the land
were to be for Anoi Lantey
family, the Plaintiff who claims
to be the acting head, will not
have capacity to mount this
action, until exhibit D lapses
in 2015.
In effect since the land did
not belong to that family the
Plaintiff has no capacity to
mount this action in respect of
the land.
The defendants also pleaded
that the Plaintiff is estopped
by virtue of section 10 of the
limitation decree (N.R.C.D. 54)
of 1972.
The 9th defendant
also pleaded further that the
Plaintiff is caught by laches,
acquiesce and estopped by own
conduct. The 9th
defendant gave evidence for
himself and the 6th
defendant and stated that he and
the 6th defendant had
been on the land since 1986.
Counsel for the Plaintiff
challenged the 9th
defendant on this, but no
witness was called.
P.W.1. Mr Emmanuel Annoe Lamptey
admitted under cross examination
that he knows that the 6th
and 9th defendants
have built and lived on this
land for over twenty years. He
also said it was only in 2005
that action was instituted.
Again P. W. 2, Miss Lydia
Abosey, who claims to be the
daughter of Koshie Lamptey also
said she is aware that the 6th
and 9th defendants
have been on the land for over
20 years.
In In Re Asere stool; Nikoi
Olai Amoatia ‘IV’ (substituted
by Tafo Amon ‘II’) vrs Akotia
Oworsika ‘III’ (substituted by)
Laryea Ayiku ‘III’ (2005-06) S C
G L R 637.
It was held in holding 2 that
“where an adversary has admitted
a fact advantageous to the cause
of a party, the party does not
need any better evidence to
establish that fact than by
reling on such admission which
is an example of estopped by
conduct.------- “
Section 10 (1) of N.R.C.D. 54
says “ No action shall be
brought to recover any land
after the expiration of twelve
years from the date on which the
right of action accrued to the
person bringing it or if it
first accrued to some person
through whom he claims, to that
person.
Since the Plaintiffs knew that
the 6th and the 9th
defendants have been living on
the land for over twenty years
ago, and the head of family in
the person of Emmanuel Annoe
Lamptey P.W, 1 also knew since
1975 from Ofori Doudu that the
land had been sold by Mogyabi
Yedom, the Plaintiff is estopped
from recovering the land from
the defendants even if the 1st
defendant had been served with
the writ. In GHICOC
REFRIGERATIONS & HOUSEHOLD
PRODUCTS LIMITED VRS HANNA ASSI
(2005-06) SC GLR 45, the Supreme
Court held that title to land
might be acquired by adverse
possession, but such title was
not derivative in that it did
not flow from the title of the
original owner which had been
extinguished by such adverse
possession. Such a possessory
title could be forced on a
purchaser. Consequently, a
person who had been in adverse
possession of land for more than
twelve years in terms of section
10 (1) and (6) of the limitation
Decree 1972 (N.R C. D 54) would
be entitled to a declaration of
possessory title: such adverse
possessory title could be used
both as a sword and as a
shield”.
The Plaintiff attempted to
prove that exhibit ‘B’ is a
forgery with the evidence of P
W3 and tendered exhibit ‘C.’ P W
3’s evidence showed that Exhibit
‘C’ was not prepared for this
case but for a different case.
Again Mogyabi Yedom was not a
party to the result of Exhibit
C. One cannot say whether the
documents used for the
examination were agreed to by
Mogyabi Yedom, since he was not
a party. P. W. 4 Frederick
Aryee Laryea gave evidence that
“he realised the land leased to
Mogyabi Yedom had been converted
to outright sale and realised
that the signatures on the
leasehold and the outright sale
did not tally”. He made a
request to the Police Forensic
Laboratory for the signature to
be examined. He then took some
people to court to prove to them
that the land was stolen.”
The evidence of P.W.4
contradicts that of P.W.3.
Whereas P.W.3 said it is the
High Court that authorised the
Police to undertake the
production of Exhibit ‘C’, P.W.4
says he initiated it and when he
had it, he commenced an action
which was not concluded.
P.W.5 also said when one
Kumoji summoned him in the
circuit court that he had pulled
a cutlass on him, he also sued
him in the High Court, until he
receive a message from the
police that the land was stolen
by Mogyabi Yedom That case
was not concluded as his Lawyer
went to Parliament. Since no
court had pronounced on the
genuineness of exhibit ‘B’ the
Plaintiff cannot rely on exhibit
‘C’ to draw a conclusion that
exhibit ‘B’ was a forgery.
Again P.W.3 said he examined the
signatures of Lydia Abossey,
Alex Quarcoe and Lantei Lamptey,
and that it was the High Court
that gave him the assignment.
Under cross examination, he
admitted that exhibit ‘C’ was in
respect of Kwame Dodi Ofori and
two others vrs Charles Kumoji
and 4 others, but there is no
suit Number. He also said had
the Plaintiff not told him that
it was the same case as the
Kwame Dodi Ofori case he would
not have known that the cases
are the same. From the totality
of P.W.3’s evidence, I do not
believe that he was speaking the
truth, especially as the vendors
in exhibit ‘B’ are not the
persons whose signature he
allegedly examined. There is
also no evidence that the
documents that he compared those
signatures with were the genuine
signatures of those persons and
were not tendered in evidence in
this case.
Again the Plaintiff did not
claim that exhibit ‘B’ should be
cancelled as it is a forgery.
Exhibit ‘B’ has been executed
and registered. Until it is set
aside the law will recognise it
as valid. In the case of
AKYEA-DJAMSON VRS DUAGBOR & ORS
(1989-90) 1GLR 223, the Supreme
Court held that
“--------------------- by the
provisions of section 25 (1) of
the land registry Act 1962 (Act
122) and section 20 of N.R.C.D.
323 the fact of registration
raised a presumption of the fact
of ownership, and that
presumption operated against the
co-defendant, the defendants and
all others through whom they
claimed unless they could rebut
it “
Since the 1st
defendant had then registered
exhibit ‘B’, the other
defendants were perfectly
entitled to assume that the 1st
defendant has title, and
therefore dealt with him as an
owner of the land. Again
section 37 sub section1 of
N.R.C.D.323 says “it is presumed
that official duty has been
regularly Perforeed.
In Ghana, Ports and Harbours
Authority & Captain Zeim VRS
Nova Complex Ltd,(2007-08) S C
GLR 806 The Supreme Court held
that the common law rule of
Presumption “Omnia Praesumuntur
rite et solenmiter esse
acta”which has gained statutory
recognition under section 37 (1)
of the Evidence Act, 1975 (
N.R.C.D. 323) providing that
“It is presumed that an
official duty has been regularly
performed ” applies not only to
official, judicial and
government Acts, but also to
duties required by law --------
“
The Plaintiff also
complained about short coming in
the 9th defendant’s
lease. Even if these short
comings are so material as to
affect the validity of the
lease, it will still not enure
to the benefit of the Plaintiff,
as it is the 1st
defendant who should complain,
since even if it be set aside,
the land will revert to 1st
defendant but not to the
Plaintiff. The 1st
defendant has also not
complained that the 9th
defendant did not acquire land
from it. Especially as the 9th
defendant occupied the land
before the death of Madam Janet
Ofosua.
The 9th defendant
also gave evidence that when the
land was given to them in 1986
they were asked to develop it
and he did develop it. It was
later on that documents were
prepared, and since it was given
to him in 1986, his conveyance
dated from that date.
This practice of building on
land without document is not
uncommon in Accra. Lawyers who
prepare leases for their
clients, should be careful in
the language they use when
preparing leases for their
clients in such situations, to
avoid such embarrassing
situation. Had the 9th
defendant not occupied the land
for over 20 years ago, he might
have lost the land, if an
objection had been taken
timeously.
In conclusion I dismiss the
Plaintiff’s claim and enter
Judgement for the 9th
Defendant on his counter claim
as follows
-
Declaration of title to
all that piece or parcel
of land described in
paragraph 8 of the 9th
Defendant’s statement of
defence, and Registered
as land Registry No.
1898/1993.
-
The Plaintiff, his
agents, Servants,
customary successors and
assigns are perpetually
restrained from
interfering with the 9th
defendant’s quiet and
peaceful enjoyment of
the land registered as
Number 1898/19993.
The 6th and 9th
defendants are awarded cost of
GH¢1,000.00 each.
Counsel: Mr.
Willie Amaafio for Plaintiff
Mr. Addo Attuah for
Defendants
(SGD) MR.S. H. OCRAN
J.
JUSTICE OF THE
HIGH COURT
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