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J U D G E M E N T
The Plaintiff issued a writ on
10th May 2005
accompanied by a statement of
claim and claimed the following:
1.
Declaration of title of ALL THAT
LAND situate lying and being at
CHIRIBRA ODUMASE near SAMSAM in
the Greater Accra Region of the
Republic of Ghana and bounded on
the North-East by Nii Odartey’s
land measuring 3211 feet more or
less, on the South-east by the
Korleman Mantsi’s properties
measuring 2963 feet more or
less, on the North-West by Atta
Doku, Okafio and Ataa Sowah’s
properties measuring 1119 feet
and 990 feet more or less, on
the West by Ataa Doku and Ataa
Sowah’s properties measuring
8841 feet and 3992 feet more or
less and on the East by Adjei
Tse Klu, Ochimma and Atta
Kwashie’s properties measuring
4867 feet more or less and
covering an approximate area of
598.00 acres which piece or
parcel of land is more
particularly delineated on the
plan attached to the Statutory
Declaration of Nii Kwame Perbi
II dated the 28th day
of May 1999 and numbered
AR/2652A/2000.
2.
Damages for trespass onto the
said lands.
3.
Recovering of possession of the
said lands.
4.
Perpetual injunction restraining
the Defendant either by himself,
his servants, agents, assigns,
personal representatives,
whomsoever or otherwise
whatsoever from entering the
said land or having anything to
do with the said land.
The Defendant entered appearance
and filed a defence to the claim
and counterclaimed on 8th
July, 2005 as follows:
1.
Declaration of title to the said
land the subject of the suit as
absolute owner.
2.
Perpetual Injunction restraining
the Plaintiff from interfering
with the Defendants quiet
enjoyment of the said land.
3.
Cost on full recovery basis
including solicitor’s cost.
On 1st December, 2005
the issues set out in the
Application for Directions filed
on 2nd November, 2005
and additional issues filed on
21st November, 2005
were set down for hearing.
These issues are as follows:
I.
Whether or not the Plaintiff is
the Head of Family of the Nii
Kwame Perbi Family and sues per
his lawful Attorney Jonathan
Ayikai Ayi-Bonte.
II.
Whether or not Plaintiff’s
ancestor by name Nii Kwame Perbi
acquired the disputed land
around the early part of the 18th
century after migrating from
Asante Nsuta to Accra through
Dunpong in the 1740’s.
III.
Whether or not the said Nii
Kwame Perbi was great herbalist,
a hunter and a brave warrior,
was subsequently integrated into
the Ga Traditional family system
and made captain of the Great
Asafo Company of Gbese.
IV.
Whether or not Nii Kwame Perbi
had tenant farmers on the
disputed land who were paying
ground rent in the form of cash,
drinks and produce of the land.
V.
Whether or not Kwame Perbi I,
was succeeded by Aboa Kwadwo who
was succeeded by Akotowa Onukpa,
who was succeeded by Nii Kwame
Perbi the present chief of
Odumase Chirebra.
VI.
Whether or not Mempemehoasem
land shares common boundaries
with Odumase- Chirebra land.
VII.
Whether or not the Defendant is
stopped from claiming that
Odumase land belongs to Aburi in
the face of the ruling of the
judicial committee of the Ga
Traditional council dated 30th
of September, 1988.
VIII.
Whether or not the judgement of
the Nsawam District Court dated
10/5/94 in Suit No. 117/89 gave
Defendant title over Plaintiff’s
land.
IX.
Whether or not the Plaintiffs
are caught by the limitations
decree 1972 (NRCD 54).
X.
Whether or not Plaintiffs are
entitled to their claim.
XI.
Whether or not the Defendant is
entitled to his Counter claim.
XII.
Any other issues arising out of
the pleadings.
ADDITIONAL ISSUES
1.
Whether or not the land the
subject of this suit forms part
of the land devolved on the
Defendant through Kwame Perbi.
2.
Whether or not the land
described in the Nsawam District
Court suit No. 11/89 is the same
land the subject of this suit.
3.
Whether or not Kwame Perbi II
who was installed Chief of
Chiribra in 1974 until recently
recognized the Defendants
ownership and possession of the
land in dispute.
4.
Whether or not Kwame Perbi II is
the person behind the Plaintiff.
5.
Whether or not for decades the
Defendant and his predecessors
had maintained tenant farmers on
the land collected rents (Adode)
thereon.
Before the commencement of
hearing, a surveyor was
appointed to prepare a plan, and
same was tendered as Exhibit ‘CE
1’ by C.W.I. After the Plan had
been tendered he was cross
examined by both counsels for
the parties.
Thereafter, the Plaintiff gave
evidence and called 3 witnesses
whereas the Defendant gave
evidence and called one witness.
On issue 1, it is suffice to say
that the defendant has not been
able to proof that the Plaintiff
is not the head of family. The
Plaintiffs attorney gave
evidence that he is the head of
family. P. W. 1 also gave
evidence that plaintiff is the
head of family. The defendant
did not challenge this during
the cross examination of the two
persons. The defendant did not
also mention anybody as the head
of family.
On the authority of Fori Vrs.
Ayirebi and ors. (1966) GLR 627,
and Takoradi Flour Mills Vrs.
Samir Farms (2005-2006) SCGLR,
882 I hold that the Plaintiff is
the head of family and has the
capacity to mount this action.
On issue II, I will want to
split it as follows:
a)
Whether or not Kwame Perbi
acquired the disputed land or
not and
b)
Whether or not Kwame Perbi is
the Plaintiffs ancestor or the
Defendants ancestor; and also
resolve it together with issues
III, V and additional issue IV.
From the pleadings of the
parties, all of them trace their
root of title to the land from
Kwame Perbi.
In paragraph 3, 4, and 5 of
Plaintiffs statement of claim,
Kwame Perb I is said to be the
originator of the land in
dispute. Even though the
defendant denied paragraphs 3,
4, and 5 of the statement of
claim in the defendant’s
paragraph 4 of the statement of
Defence, the defendant admitted
that Nii Perbi was the original
owner of the land in dispute.
What the Plaintiff needed to
proof therefore from the
pleadings is that the said Kwame
Perbi was his ancestor, that he
was integrated into the Gbese
tribe, and that he was not an
Akuapim
The defendant also needed to
proof that Kwame Perbi was an
Akuapim and belonged to the
matrilineal system of
inheritance, and that the land
had been succeeded to by this
matrilineal system of
inheritance.
The Plaintiff gave evidence and
also called P. W. 1, and
tendered some exhibits as proof
that Odumase Chiribra is under
the Gbese stool. Exhibit ‘B’ is
the Gold Coast chiefs List for
1934-1935. Exhibit ‘C’ also
indicated that as at 1934,
Mempemehoasem itself was also
under the Gbese stool but not
under Aburi. Exhibit ‘H’ was a
ruling by the Judicial Committee
of the Ga Traditional Council
that it has jurisdiction over a
dispute between Odomasi Chiribra
and Mempemehoasem since they are
all within the Gbese traditional
Area. In exhibit ‘J’ the High
court refused a certiorari
application against exhibit
‘H’. Again exhibit ‘J’ and ‘K1’
shows that Odomasi Chiribra is
under Gbese.
The Plaintiff pleaded that on
the death of Nii Kwame Perbi I
he was succeeded by Aboa Kwadjo
who was also succeeded to by
Onukpa.
The evidence led by the
Plaintiff is that when Kwame
Perbi died Aboa Kwadwo the son
of Kwame Perbi succeeded. When
Aboa Kwadwo died his second son
by name Akotowa Onukpa succeeded
him. Exhibit ‘B’ was then
tendered as proof that Akotowa
Nukpa was enstooled on 1918.
Exhibit ‘B’ being an ancient
document and not having been
controverted, its contents
cannot be doubted as was held in
the case of Agyei Osae and
others vrs. Adjeifio and others
(2007-08) SC GLR 499.
Since the Defendant also counter
claimed and denied that Kwame
Perbi was integrated into the
Gbese family of the Ga’s but
rather pleaded that kwame Perbi
was an Akuapim and was gifted
the land by Nana Bosompra of
Aburi, he was under an
obligation to proof that. This
is so because under the
authority of Barkers Wood Vrs.
Nana Fitz (2007-08) SC GLR 879,
a person who assets must proof.
The Defendant had asserted that
Kwame Perbi was an Akuapim and
belonged to the matrilineal
system of inheritance, he had
the burden to proof it, but he
failed in this.
The evidence of the Defendant on
this matrilineal inheritance was
destroyed by the Defendant
himself, his witness D.W.1. and
exhibit ‘C’ The Defendant gave
evidence that there were more
than four persons who migrated
to start new life at Odumasi.
They were one Kwesi Bram, Addo
Appiah, Adu, Kwame Perbi and
their only sister, one Anyimah.
The defendant led further
evidence that “the female’s son
would inherit their uncles, and
that had been the case up till
today.” They however gave the
descendants of the males 400
acres of land and they gave the
nephews 200 acres of the land.
He however denied that Kwame
Perbi was the founder of the
land, but a group. He again led
evidence that it was their
farming land that Anyimah later
settled on and founded
Mempemehoasem.
If it is true that the people
who settled at Odumasi are
matrilineal, then it is only the
200 acres that will go to the
Defendants family as the
children of the males would not
be members of their father’s
family by inheritance under the
matrilineal system, and they had
400 acres of the land.
D.W.1 Adjei Koku however gave
evidence in chief as follows:
“Naa Anyima gave birth to
Kwabena Adade, Kwabena Adade
also gave birth to a woman whose
name I have forgotten, and this
woman also gave birth to Bram
Mantey the Defendant.”
If it is true that the
defendants system of inheritance
is matrilineal then he the
Defendant will not be a member
of Naa Anyama’s family, since
Kwabena Adade, the son of Naa
Anyama gave birth to a woman,
that woman will not be a member
of kwabena Adade’s family. Her
son the Defendant will also not
be member of Naa Anyima’s family
but that of the unnamed woman’s
family.
The Defendant in his pleading
accepted that Kwame Perbi was
the founder of the land, but
denied this in his evidence,
without amending this pleading.
Under the authority of Hammond
vrs. Odoi (1982-83) GLR 1215, I
reject the evidence that the
land was not founded by Kwame
Perbi, and accept that it was
founded by Kwame Perbi, who is
an ancestor of the Plaintiff
whose children ascended to the
Odumase Stool before P. W. 1
did.
Again since Exhibit ‘C’ the Gold
Coast Chief list 1934-35
indicates that cobbla Adade was
Onukpa of Mempemehoasem under
Gbese and Exhibit ‘H’ the ruling
of the Judicial Committee of Ga
Traditional Council had ruled
that Odumase is not a village
under Akuapim but rather under
Gbese, I accept the case of the
Plaintiff that Odumase is under
Gbese but not under Akuapim.
This is so because in the case
of Agyei Osae & ors. Vrs.
Adjeifio & ors. (2007-08) SC GLR
499, the Supreme court held that
whenever there was in existence
a written document and
conflicting oral evidence, the
practice of the court was to
lean favourably towards the
documentary evidence, especially
if it was authentic and the oral
evidence was conflicting.
I therefore resolve issue II,
III, and V in favour of the
Plaintiff and hold that the land
was acquired by Nii Kwame Perbi
who was the Plaintiff’s
ancestor. That he was
integrated into the Ga
Traditional System and belonged
to the Gbese division whose
system of inheritance was
patrilineal.
Additional issue 1 was raised
because of the Defendant’s
counterclaim. Even though the
Defendant did not give the
boundaries of the land that he
claimed, he admitted the
boundaries given by the
Plaintiff. This can be found in
paragraph 4 of the Statement of
Defence. In the said paragraph
4, the defendant pleaded that
“save that Nii Perbi was the
original owner of the land, the
subject of this suit, Defendant
denies paragraphs 3, 4, and 5.
Paragraph 3 of the Statement of
Claim stated among others “…………
Nii Kwame Perbi I acquired the
land described on the writ”.
Since the boundaries have been
admitted, both parties had to
prove how the land became
theirs. The Plaintiff showed
C.W. 1 the extent of his land
and the Defendant also showed
his through his people since he
himself never went with the
surveyor.
On exhibit C.E.1 it is observed
that the Plaintiff showed a
bigger land than what the
Defendant showed even though the
defendant admitted the
boundaries pleaded by the
Plaintiff, and did not give the
boundaries of his own land. His
boundaries should have been the
same as that of the Plaintiff,
or should have led evidence to
establish that the land that was
shown to the surveyor by his
people is the correct boundary
of the land that he had admitted
is the land in dispute but not
that shown by the plaintiff, as
they all agreed to the
boundaries in the pleadings.
The defendant did not even give
evidence of his boundaries more
so to discredit the boundaries
given by the Plaintiff. Whilst
the Defendant was under cross
examination, he showed from the
answers he gave to the court
that he does not even know the
land that he had counterclaimed
for, neither did he know the
extent of the land of Odumase
Chiribra.
The Defendant admitted that
Ntome trees are used to mark
their boundaries but there is no
Ntome tree at the Northern side
of Naaman land where from
Exhibit C.E. 1, he shares
boundary with Odumase Chiribra.
C.W.1 also said the land shown
to him by the Plaintiff is
marked by Ntome trees and diagra
trees but there are none at the
Northern boundaries of the land
shown by the Defendant. If
there was a boundary at that
place i.e. that showed by the
Defendants people, boundary
trees would have been there.
Even though the Plaintiff did
not call all his boundary
owners, he called P.W.2 who
testified that his family has
land in between Odumasi and
Mempemehoasem. P.W.2 described
the land as Odartey Sron. In
the Plaintiff’s writ Nii
Odartey’s land was mentioned as
a boundary owner. Plaintiff
also mentioned Nii Odartey’s
family as one of their boundary
owners.
The defendant from his cross
examination admitted the
presence of Nii Odartey on the
land, but suggested to him that
it was Mempemehoasem people who
gave the land to him. This
P.W.2 denied and said Nii
Odartey bought it from odumasi.
D.W.1 Adjei Doku also gave
evidence under Cross examination
that Mempemehoasem and Odumasi
Chiribra are on the same land
and are of the same family. It
is therefore not strange that
there are no Notme trees at the
Northern boundary of the land
Claimed by Defendant. The
inference is that, that land is
part of Odumasi Chiribra land.
Since the Defendant admitted the
boundaries of the land pleaded
by the Plaintiff in the writ of
summons, the Plaintiff was not
under any obligation to further
proof the identity of the land.
Ref Kai vrs Amarkye (1982-83)
GLR 817 Holding 2, and Armah vrs
Addoquaye (1972) 1 GLR 109.
The defendant apart from not
leading any evidence on his
boundary, also contradicted his
own pleading on his root of
title, and denied in his
evidence that Kwame Perbi I was
the one who founded the land
whereas, he had admitted this in
his pleading. On the
authorities of Appiah vrs Takyi
(1982-83) GLR 1, Akoto II vrs
Kavege (1984-86) 2 GLR 365 and
Nyikplorkpo vrs Agbodotor
(1987-88) 1 GLR, 165 I reject
the case put up by the defendant
in proof of his claim to the
land and accept that of the
plaintiff.
On the issue of whether the
Nsawam Judgement in exhibit 1 is
the same land as the land the
subject matter of this suit, the
boundaries of the two suits must
be considered. In exhibit 1,
the land is said to be at
Odumasi near Medie and bounded
on one side by the property of
Kwame Perbi on another side by
the property of Otuama on the
other side by the property of
Amakyi and Korleman. The
description of that land is
different from the description
of the land in the present suit,
which the defendant did not give
boundaries but admitted the
boundary given by the Plaintiff.
Since the two lands are
different, even if it was a
declaratory Judgement, it could
not have affected the Judgement
in the present suit, more so
when in exhibit 1, the land is
said to be at Oduamase but not
at Mempemhoasem.
Again the defendant did not lead
any evidence to proof that the
plaintiff in the Nsawam suit is
or was related to the Plaintiff
in this suit. The Plaintiff
however said he is not related
to the plaintiff in the Nsawam
suit and the Defendant could not
disprove this by leading
evidence to connect the two
persons.
The case of Ohene Appoh Ababio
vrs Ohene Doku Kanga (1932) 1
W.A.C.A. 245 held that “Estoppel
per rem Judicatam is the rule
that a final decision of a court
of competent jurisdiction, once
pronounced between parties
cannot be contradicted by any
one of such parties, as against
any other of such parties in any
subsequent litigation between
them respecting the same subject
matter.” Again, in Otu I and
others vrs Owuodzi and ors.
(1987-88) 1 GLR 196, the Supreme
Court held that a party pleading
estoppel per rem judicatam
assumed the burden of
establishing that the matter had
already been adjudicated upon,
and that the parties and the
subject matter were the same in
the instant case as in the
previous suit…….”
Since in this case the two lands
are different and the parties
are not the same, the Plaintiff
cannot be estopped from
instituting the present action.
The defendant in the Nsawam suit
did not also counterclaim for
anything. It was the
Plaintiff’s suit which was
dismissed. It never declared
title in the defendant in that
suit.
In Sam vrs Noah (1987-88) 2 GLR
213, the Court of Appeal held
that “….. the fact that the two
actions were fought between the
same parties and related to the
same land did not per se raise
the issue of estoppels for the
reliefs sought by the two
actions were not the same in
law. The Judgement in the
trespass suit merely dismissed
the action in trespass. It did
not adjudge the defendant
absolute owner of the land in
dispute. The issue of ownership
was therefore left at large ….”
I therefore hold that the land
described in the Nsawam District
court suit No. 11/89 is not the
same as the land in dispute in
this suit, and that that
Judgement did not give defendant
title over Plaintiff’s land, as
no declaration was made in his
favour.
On the issue of whether the
Plaintiffs are caught by the
limitations Decree 1972, (NRCD
54) the Defendant pleaded in
paragraphs 17 and 18 that Kwame
Perbi II had recognized the
Defendants ownership and
possession since 1974, until he
recently decided to be
mischievous.
The Plaintiff denied this in his
reply and stated that it is
rather the Defendant who is
estopped from claiming that
Odomase land belongs to Aburi.
The Plaintiff also pleaded that
the Defendant has never been in
possession and control until
after 1994, under a mistaken
belief that the Nsawam District
Court Judgment gave him title
over Plaintiff’s land.
The defendant’s evidence in
support of his plea of estoppels
is that his ancestors being more
than four persons migrated from
Aburi and settled at Odumase.
Mempemehoasem was their farm
land. Anyima opted out and
stayed permanently at where they
used to farm. He had inherited
the land measuring 200.9 Acres
from his predecessors
matrilinealy. The defendant
also said his predecessor Okai
Kwei was in full control of the
land which he had inherited, and
that he has evidence to show
that he was in full control of
the land.
He said he has receipt book to
show, but that was not shown to
the court or tendered. Rather
exhibits I which is dated 10th
day of May, 1994, Exhibit 2
dated 9th July 1996,
Exhibit 3 dated 11th
march 1957 and exhibit 4 dated
30th June 1999, were
tendered. These exhibits do not
show that the Defendant was in
possession or control of the
land. In exhibit I Tetteh
Sacky’s claim was dismissed.
The defendant did not however
tender any receipt to show that
part of the land was given to
anybody by Tetteh Sackey.
Again, I have already held that
the land in exhibit I is not the
same as the land in this suit.
In exhibit 2 one Okae Koi sued
some persons in the Community
Tribunal, Amasaman. There is no
indication that the defendants
in that suit were heard. From
the record 1st, 5th
and 7th defendants
were absent. The court then
told them the Plaintiffs claim
and without listening to them,
ordered them to pay to the
appointees, but no more to
Perbi. One information that is
revealed by exhibit 2 is that
these persons were making
payments to Perbi. This Perbi
was however not made a party to
this suit. There is also no
indication that they stopped
paying to this Perbi. If the
Perbi mentioned is P.W.1, then
he should have been made a party
to that suit since he was being
denied of his right.
Exhibit 2 is dated 9th
July, 1996; Exhibit 3 does not
give any indication of the
subject matter of the suit.
Exhibit 4 is dated 30th
June 1999 and it made reference
to exhibit 1. The Plaintiff in
response to this led evidence
that it was only after the 1994
Judgement that the Defendant
starting trespassing. The
Plaintiff also tendered exhibits
‘E’ dated 24th
January, 2005 and attached to
this a Public Notice by the
Defendant, which is dated 18
January, 2005 asking certain
persons to contact him. In
Exhibit ‘E’ those persons were
asked to disregard the
invitation by the Defendant.
There is also exhibit ‘E2’ dated
8th December 1999
which was written to the
Defendant by the plaintiff. It
indicated that the Defendant
wrote to one Mr. Yao, a grantee
of land by Nii Kwame Perbi II.
Exhibit ‘E2’ admitted that they
put Mr. Yao on the land. Apart
from these exhibits indicating
that the plaintiff’s family was
in possession of the Odumase
lands the plaintiff called P.W.
3 Amankwa Oppong Samanta who
said Nii Kwame Perbi gave him
farming land at Odumasi Chiribra
over 20 years ago, but the
Assemblyman of Mempemehoasem
destroyed it.
The Defendant admitted that
P.W.3 was on the land as a
farmer but he the defendant said
she must be stopped because she
had refused to see him.
D.W. 1 also said he had had
litigation over land in the
valley with Kwame Perbi before
Naa Wolomo and he lost. From
these pieces of evidence I hold
that possession of the land in
dispute had been with the
Plaintiff, and that it was only
after the 1994 Nsawam Judgement
that the defendant attempted to
take control but was resisted by
the plaintiff. In Akoto vrs
Gyamfi Addo & Anr. (2005-06) SC
GLR 1018, the Supreme Court said
“in land law ‘possession’ was
used not in the popular sense of
physical occupation of the land,
but it included receipts of
rents and profits or the right
to receive same….”
Since from the Defendants own
showing it is the Plaintiff who
had been collecting “Adode” i.e.
rent, it cannot be said that
they had allowed the defendants
to be in adverse possession
since that has not been proved.
I therefore hold that the
plaintiff’s family had tenant
farmers on the disputed land and
therefore not caught by the
limitations decree, as the acts
of the defendant in claiming the
land is a recent event. It is
these acts of the defendants
against the plaintiff’s grantees
that constituted the trespass to
the land.
1.
The plaintiff is therefore
Declared titled to All that land
situate lying and being at
CHIRIBRA ODUMASE near SAMSAM in
the Greater Accra Region of the
Republic of Ghana and bounded on
the North-East by Nii Odartey’s
land measuring 3211 feet more or
less, on the South-east by the
Korleman Mantsi’s properties
measuring 2963 feet more or
less, on the North-West by Atta
Doku, Okafio and Ataa Sowah’s
properties measuring 1119 feet
and 990 feet more or less, on
the West by Ataa Doku and Ataa
Sowah’s properties measuring
8841 feet and 3992 feet more or
less and on the East by Adjei
Tse Klu, Ochimma and Atta
Kwashie’s properties measuring
4867 feet more or less and
covering an approximate area of
598.00 Acre which piece or
parcel of land is more
particularly delineated on the
plan attached to the Statutory
Declaration of Nii Kwame Perbi
II dated the 28th day
of May 1999 and numbered
AR/2652A/2000.
2.
Nominal Damages of GH¢ 10,000.00
against Defendant, as the
plaintiff did not lead evidence
on exactly how much he lost as a
result of the acts of the
Defendant.
3.
The plaintiff is also to recover
any portion of the land in
Exhibit C E 1 which the
defendant or its agent is in
possession.
4.
The Defendant, his agents,
servants, privies, etc are
perpetually restrained from
having any dealings with the
land in dispute without the
consent and concurrence of the
plaintiffs’ family.
The Defendants counterclaim is
dismissed.
The Plaintiff is awarded cost of
GH¢5,000.00.
Counsel:
Mr. Kofi Frempong Manso for
Plaintiff
Mr.
C.K. Mintah for Defendant
(SGD)MR. JUSTICE S.H. OCRAN
Justice of the High
Court
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