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JUDGEMENT
BY COURT:
The Plaintiff by his Writ issued
on 29th September
2008 claimed the following.
1.
An Order of possession of the
disputed property.
2.
An Order of Permanent Injunction
restraining the Defendant from
trespassing on the Plaintiff’s
land.
3.
Damages for trespass to land
4.
Cost.
Even though on the face of the
Writ it is issued in the name of
the Plaintiff and on behalf of
the Estate of one Akushia Doku
(deceased), the body of the
Statement of Claim and the
endorsement on the Writ did not
indicate so.
The Statement of Claim did not
also state when the said Akoshia
Doku died, neither was the date
of death of Akoshia Doku
mentioned in Plaintiff’s
evidence. In paragraph 3 of the
Statement of Claim, the
Plaintiff however pleaded that
in 1959; the Plaintiff acquired
the disputed property jointly
with his sister Akoshia Komodji
and leased the said property to
one J.S.A Chedid for 20 years
certain.
According to the Plaintiff’s
pleading before the 20 years
lease expired, Chedid assigned
the lease to one Henry Kwadwo
Djaba, but Henry Kwadwo Djaba
now claims the property had been
conveyed to him by Akoshia Doku
forever. The pleading and the
evidence did not indicate
whether Akoshia Komodji is the
same as Akoshia Doku.
On or about 21st day
of October 2008, when an
application for substituted
service was applied for, the
plaintiff’s Counsel said they
believe the defendant was dead,
but they were not sure, and as
such wanted an Order of
Substituted Service. The
application was then adjourned
to 12th November 2008
to find out whether the
defendant was dead or not.
The docket was taken to the
Motions Court and it came back
to this Court on 27th
February 2009 after the Order of
Substituted Service had been
granted by the Motions Court.
On 18th March 2009,
the Plaintiff was granted
Interlocutory Judgement, but
since he wanted recovery of
possession of land that his own
pleading said the Defendant
claimed to have had a conveyance
from Akoshia Doku, the Plaintiff
was asked to proof his title.
On 2nd July 2009 the
Plaintiff gave evidence and
tendered exhibit ‘A’ as the
document covering their land.
This was the lease document he
gave to Jemiel. The Plaintiff
also gave evidence that Jemiel
was given 20 years lease from 18th
July 1959, and it expired in
1979.
According to the Plaintiff,
before 1979, Jemiel Called him
and informed him that he had
transferred the land to Henry
Kojo Djaba, so if he liked he
should go to Kojo Djaba to
collect money. According to the
Plaintiff the last time he
collected rent from the
Defendant was in 1972, and it
was in 2008 that the Defendant
told him that his sister had
gifted the land to him.
Even though the Plaintiff was
not Cross- examined on his
evidence because the Defendant
has not appeared to the Writ, I
find it difficult to believe the
Plaintiff. This is so because
in the Plaintiff’s pleading, he
stated that the Defendant now
claims that the said property
had been conveyed to him by
Akoshia Doku forever.
In his evidence, he said the
Defendant said the land was
given to him by his sister as a
gift. When the Court wanted to
know from the Plaintiff when the
Defendant told him that the land
was gifted to him, he said it
was in 2008. He also said the
last time that he collected
ground rent from Mr. Djaba was
1972. According to the
Plaintiff, before 1979, Mr.
Jemiel called him and informed
him that he had transferred the
land to the Defendant, so if he
liked he should go to him to
collect money. Since according
to the Plaintiff the last time
he collected money from the
Defendant was in 1972, it meant
Jemiel spoke to the Plaintiff
either in 1972 or before 1972,
and this made him to collect
money from Defendant in 1972.
Again from Exhibit ‘A’, after
the 10 years rent which was
paid, which rent expired on 31st
July 1969, the Defendant was to
pay yearly rent on the 1st
day of each month of the said
term, which is August in every
year, since the effective date
of the lease to Jemiel was 1st
August 1959. If the Defendant
had taken over the unexpired
interest from Jemiel then he was
bound to pay rent up to 31st
July 1979. The Plaintiff
however said, since 1972, the
Defendant did not pay any money
to him. Again, the lease to
Jemiel expired on 1st
August 1979.
From that time to 29th
September, 2008, when the Writ
was issued is 29 years, and from
1972 when the last rent was paid
to 29th September
2008 when the Writ was issued is
36 years. If the land had not
been conveyed to the Defendant
forever, the Plaintiff would
have been collecting rent from
the Defendant up to 31st
July, 1979 and take recovery of
possession when the lease
expired on 1st August
1979. Having waited for all
these years, the Plaintiff is
stopped from taking recovery of
possession of the land, the
subject matter of this dispute.
By Section 10 (1) of the
limitation Decree, NRCD 54, “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.”
In GIHOC REFRIDGERATION &
HOUSEHOLD PRODUCTS LTD Vrs.
HANNA ASSI (2005-2006) SC GLR
458, the Supreme Court referred
to Section 10 Sub Section (1)
and (6) of N.R.C.D 54 and held
that “The combination of the
extinguishing of the original
owner’s rights under Section
10(6) of the Limitation Decree
1972 (N.R.C.D. 54) with the
baring of action against the
adverse possessor under Section
10 (1) must in logic result in
the adverse possessor being
construed to have gained a right
that is enforceable by action
…….”
In this case the Plaintiff
claimed in one breath that the
Defendant said the land had been
conveyed to him for ever, and in
another breath said it had been
gifted to him by Akoshia Doku
forever. If this was not true,
rent would have been recovered
from Defendant after 1972 or
recovered possession after July
1979. Not having done so for
over 29 years, the Plaintiff
cannot recover possession of the
land.
The contents of Exhibit ‘A’ also
raise doubts about the claim of
the Plaintiff to the land.
Exhibit ‘A’ is alleged to have
been made on 18th
July, 1959. Exhibit ‘A’ however
stated that on 18th
July 1959 Emmanuel Doku of Accra
executed a Deed of Gift to
Akoshia Doku and Tetteh Kumodji
Doku, which Deed was registered
as No.2122/1959 in the books of
the Lands Registry.
The Deed of Gift having been
executed on 18th
July, 1959, it is strange for
the same Deed to be captured in
the lease to Jemiel also dated
18th July, 1959.
For the above reasons I am
unable to grant the Plaintiffs
reliefs and dismiss same.
Counsel: Mr. T.T. Nartey for
plaintiff
(SGD) MR. JUSTICE S.H. OCRAN
Justice of the High
Court
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