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JUDGEMENT:
1.
The plaintiff, by his writ and
statement of claim filed on 6th
October, 2005, claimed the
underlisted reliefs in his
capacity as the acting head of
the late Mary Obaamla Duncan
Family.
a)
A declaration of title to all
that piece or parcel of land
situated lying and being at
Ofankor along the Accra –Nsawam
Road and bounded on the North by
Dzorshie Stool land measuring
255 feet more or less, on the
East by the Accra – Nsawam Road,
measuring 2260 feet more or
less, on the South by land
measuring 185 feet more or less
and on the West by the Accra
Nsawam Railway Line measuring
2450 feet more or less and
covering an approximate area of
19.05 Acres.
b)
Recovery of possession
c)
Damages for trespass
d)
Perpetual Injunction Restraining
the Defendant, his servants,
agents and workmen and all those
claiming through him from
entering on the land in dispute
or interfering with the land in
any manner whatsoever.
In the statement of claim that
accompanied the claim, the
plaintiff traced his root of
title from one Mary Obaamla
Duncan, who was said to have
purchased the land from one
Robert Kotey Tawiah and was
issued with a Deed of Conveyance
dated 4th September,
1959.
That this Mary Obaamla Duncan
died intestate on 23rd
December, 1975, and Letters of
Administration was granted to
the plaintiff on 10th
September, 2003.
The Defendant denied the
plaintiff’s title and asserted
that he and other Car towers
were given the said land by
Ghana Railway Company Limited in
1999, and that the said land
falls within government
acquisition for railway.
The issues set down for hearing
were as follows:
1.
Whether or not the land in
dispute falls within any land
acquired by the Ghana Government
for the Ghana Railway Company.
2.
Whether or not the land in
dispute falls within the
plaintiff’s late mother’s
registered land No. 3167/1959,
covering an approximate area of
19.025 Acres.
3.
Whether the Defendant has
trespassed on a portion of
plaintiffs land.
4.
Whether the plaintiff is
entitled to his claim.
5.
Any other issues arising from
the pleadings
At the hearing, the plaintiff
tendered Letters of
Administration in respect of the
estate of Mary Obaamla Duncan,
in favour of the plaintiff and
Mrs Ernestina Monney, without
any objection, and same was
admitted as Exhibit ‘C’.
After the plaintiff has closed
his case, and before the
Defendant opened his defence, a
motion was filed by the
Defendant to strike out the
suit, since the plaintiff
instituted the action in his
capacity as the acting head of
family, whereas he himself had
testified that he and another
person have been appointed as
administrator and administratrix
of the estate of his late
mother.
The application was refused as
evidence had been led by the
plaintiff, without objection,
that he is the acting head of
family and one of the
administrators of the Estate of
Mary Obaamla Duncan, and a copy
of the Letters of Administration
tendered. The defendant –
Applicant was however awarded
cost, and the plaintiff
respondent was granted leave to
amend the writ and statement of
claim, with respect to his
capacity since evidence of his
other capacity as an
administrator was already on the
record, as was envisaged in the
case of Marfo and others vrs
Adusei (1963) IGLR 225, and
Mamudu Wangara vrs Gyato Wangara
(1982 – 83) GLR 639.
In the amended writ and amended
statement of claim, the
plaintiff described himself as a
co-administrator, who is suing
on his own behalf and on behalf
of the other Administrator Mrs
Ernestina Monney. The defendant
did not file any defence to the
amended statement of claim.
Even though capacity was not set
down as an issue for
determination, the application
by the Defendant that the suit
should be struck out for lack of
capacity and the subsequent
amendment by the plaintiff that
he is instituting the action as
an administrator on his own
behalf and on behalf of the
other administrator has
compelled the defendant to argue
that the plaintiff has no
capacity to mount this action.
The basis of the defendant’s
argument is that;
a) The plaintiff, as
Co-administrator should have
instituted the action with
the other administrator
b) Even if he has
instituted the action on behalf
of the Co-administrator,
there should have been evidence
in the form of a power of
attorney
c) That granted the
plaintiff is acting on his own
behalf and on behalf of
the other administrator, they
should have distributed the
estate within one
year after the grant of the
letters of Administration on 10th
September 2003.
Before this argument is
considered, I would want to
condemn the sluggish attitude
with which defence counsel has
handled this case. On 10th
June 2010, defence closed his
case and counsel who was present
in court was ordered to file his
written address by 2nd
July 2010. The suit was then
adjourned to 5th July
2010 to ensure that the address
has been filed so as to give
time to the plaintiff’s counsel
to file his written address.
On 5th July 2010,
defence counsel had not filed
the address and had also refused
to attend court; the suit was
adjourned to 16th
July 2010 to enable the
plaintiff’s counsel to file his
written address and to fix a
date for Judgement.
On 16th July 2010,
both Counsel were present. None
of them had however filed the
written addresses. This
compelled the court to adjourn
the suit to 14th
October 2010 for Judgement.
On 15th September
2010, the plaintiffs counsel
filed his written address.
Defence counsel filed his
address on Friday 8th
October 2010 at 2.26 p.m. and
was sent to court on 12th
October 2010 after he had been
served with the plaintiffs
written submissions when he was
to have filed first. As such the
plaintiffs counsel has not been
able to respond to the issue of
capacity raised in the address.
Counsel should know that they
have a duty to assist their
clients and the court in their
work as counsel.
Since the question of capacity
goes to the root in any action,
even though it has been raised
very late, I deem it necessary
to consider it, since in the
case of Sarkodee I Vrs. Boateng
(1982-83) GLR715 the Supreme
Court held that “it was
elementary that a plaintiff or
petitioner whose capacity was
put in issue must establish it
by cogent evidence. And it was
no answer for a party whose
capacity to initiate proceedings
had been challenged by his
adversary to plead that he
should be given a hearing on the
merits because he had a
cost-iron case against his
opponent.....”
In this case the Defendant did
not categorically deny the
averment in paragraph 1 of the
amended statement of claim to
the effect that the plaintiff is
claiming as an administrator for
himself and the
co-administrator. The writ has
also been amended to reflect the
position of the plaintiff. The
plaintiff also gave evidence
that he is the acting head of
Madam Obaamla family, and the
son of the said Madam Obaamla
who died in 1975. That he took
letters of administration and
same was tendered as Exhibit
‘C’. The plaintiff was not
challenged whilst he was under
cross examination on any of his
position as acting head, or an
administrator. Since the
plaintiff was not challenged on
his amended statement of claim
that he is bringing the action
on his behalf and on behalf of
Mrs. Ernestina Monney, it is too
late to raise the issue of
capacity in an address.
In the case of Kai vrs Amarkye
(1982 – 83) GLR 817, the court
of Appeal held in its holding 2
that “the whole object of
pleadings was to bring the
parties to an issue. Once
pleadings were amended, what
stood before the amendment was
no longer material before the
court and no longer defined the
issues to be tried. Order 19 of
L.N. 140 A (now orders 11 Rules
13 (1) (2) and (3) of C.I 47)
had the common object to compel
each party in his turn to admit
or deny fully each allegation of
fact in the pleadings of his
opponent. Failure to deny
either specifically or by
implication, allegations of
facts amounted to admission of
them and no further proof of
that was required………..)
Madam Obaamla is said to have
died intestate on 23rd
December 1975. At that time once
a person died intestate, his or
her properties became family
property. Once it is family
property it is the duty of the
head of family to protect such
properties.
Since the action by the
plaintiff is to protect the
property, which is family land,
the plaintiff, without a grant
of Letters of Administration
will still be competent to
protect the family property
since he gave evidence that he
is the acting head of the
deceased family.
Since the property is family
property, it need not be
distributed as claimed by
Defence Counsel. If family land
is to be distributed, within one
year after letters of
Administration had been issued,
there would be no family
property in Ghana. I therefore
hold that the plaintiff has
capacity to institute this
action.
The next issue to be considered
is whether the land in dispute
falls within Government
acquisition, or within the
plaintiff’s mother registered
land.
The plaintiff’s evidence is that
the land was acquired by her
mother in 1959, and tendered her
Deed of Conveyance dated 4th
September, 1959 with land
Registry Number 3167/1959.
The Defendants evidence is that
the land was acquired by the
Government for Railways in 1909.
Since the plaintiffs mothers
land was Registered in 1959, but
the government acquisition is
said to be 1909, I hold that the
plaintiffs mothers land covered
by Exhibit A does not fall
within government acquisition
otherwise it would not have been
processed by the then Lands
Department and Registered by the
Lands Registry.
Exhibit “CW1A” which was
tendered by the surveyor showed
that where the Defendant claims
to have been permitted by Ghana
Railways to occupy is outside
the area claimed by the
plaintiff. However where the
Defendant actually occupied and
showed the surveyor is within
the plaintiff’s mothers land.
This being the state of affairs,
one would have expected the
Defendant to throw in the towel
when the plan was tendered by
CW1.
Since the Defendant by his own
showing admits that he was
occupying the land in dispute,
and where he claims Railways
permitted him to occupy
according to his site plan is
outside the land claimed by the
plaintiff. I hold that the
Defendant has trespassed unto
the plaintiffs land and enter
judgement for the plaintiff as
follows:
a)
The Estate of Mary Obaamla
Duncan is declared entitled to
all that piece or parcel of land
as described in claim (a) and
covered by Deed of Conveyance
Number 3167/1959.
b)
The plaintiff is to recover any
portion of the land in claim (a)
which is in the possession of
the Defendant.
c)
The plaintiff is awarded of GH¢10,000.
00 damages for trespass to the
said land.
d)
The Defendant, his agents,
servants privies, workmen etc
are perpetually restrained from
entering or interfering with the
land in dispute.
e)
The Plaintiff is therefore
awarded cost of GH¢4,000.00
Counsel:
Mr. Korsah Brown for the
Plaintiff
Mr. Bede Tukuu for the Defendant
(SGD.)
MR. JUSTICE S.H. OCRAN
Justice
of the High Court
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