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JUDGMENT:
On December 15th
2005, the 1st
Plaintiff filed this writ,
accompanied by a statement of
claim, against the defendant,
and claimed the following
reliefs:
I.
A declaration of title to all
that parcel of land known as
Block “A’ Plot No. 47, situated
at Otinshie Residential Area and
covering an approximate area of
0.18 of an Acre.
II.
General damages for trespass
III.
Perpetual Injunction restraining
the defendant, his allies,
privies, assigns and or any one
claiming through him any further
interference with plaintiff’s
title to the said parcel of
land.
On 10th July 2008,
the Plaintiff was granted leave
to amend his writ of summon by
adding two more reliefs. The
amended writ of summons pursuant
to leave granted on 10th
July, 2008 was filed on 21st
day of July, 2008.
The new added reliefs are as
follows:
IV.
Order for recovery of possession
V.
Costs.
The Defendant entered appearance
and filed a defence which was
subsequently amended and
counter-claimed as follows:
(a) A declaration of title
to the said portion of land
lying at Otinshie Residential
Area, East Legon,
Accra and bounded on the
North-West by lessor’s land
measuring 90.8feet more or less,
on the North-East by lessor's
land measuring 98.7ft more or
less, on the south-East by
Lessor's land measuring 91.7ft
more or less on the South-West
by proposed road measuring
98.7ft more or less and
containing an approximate area
of 0.207 of an Acre or 0.084
Hectares and more particularly
delineated on the Plan.
(b) Perpetual Injunction
(c) Recovery of
Possession
(d) Damages for trespass
(e) Cost.
The Plaintiff traced his root of
title from the Osae family of
Teshie in 1997, whereas the
Defendant traced his root of
title from Afutu and Osae
family. The Defendant pleaded
further that when he heard that
the Court of Appeal had given
Judgement in favour of the
Tse-We Family of Kle Musum
Quarter in July, 2005, he went
to Osabu and Ayiku Wulomo, who
had been declared to be the only
Trustee capable of alienating
Otinshie land, for a fresh
grant.
The Plaintiff also pleaded that
after acquiring the land in
1997, He went into possession by
building a fence wall around it
and built a two bedroom outhouse
on it, and placed a care taker
in.
The Defendant denied that there
was any structure on the land
when he took possession, and
that it was he who had put up a
building on the land, and he is
in actual physical possession.
He thus pleaded the protection
of Act 2.
The Plaintiff then joined Dr.
T.A. Osae to the suit as 2nd
Plaintiff, who filed a Statement
of Claim. In the 2nd
Plaintiff’s statement of claim,
he pleaded that his family gave
the land in dispute to the 1st
Plaintiff, and that neither he
nor his family has given any
land to the Defendant who is not
known to him. At the close of
pleadings, the following issues
were set down as the issues for
trial on 26th
February 2006.
1.
Whether the parcel of land the
subject matter of dispute is
owned by the Plaintiff’s grantor
(i.e. Osae family of Teshie) or
by the Defendants grantors, the
Tse-We Family of Kle Mesum
Quarter of Teshie?
2.
Whether the Plaintiff has a
valid grant of parcel of land,
the subject matter of dispute.
3.
Whether Plaintiff went into
possession of the parcel of land
by walling it and putting up a
boys quarters on it.
4.
Whether Defendant had an earlier
grant of the parcel of land from
Afutu and Osae families which
grant has been registered.
5.
Whether Defendant has a valid
grant of the parcel of land the
subject matter of dispute.
6.
Any other issue or issues
arising out of the pleadings.
To resolve the issues raised in
this suit, the 1st
Plaintiff gave evidence through
an attorney Justice Hammond who
actually purchased the land for
the 1st Plaintiff,
and the 2nd plaintiff
through Ebenezer Ashitey Affutu,
who described himself as one of
the joint heads of Otinshie and
Bejin who have formed a Union to
protect their lands. The 2nd
Plaintiff said he knows the 1st
Plaintiff, who bought land from
them. That he joined the suit
because the 1st
Plaintiff informed them that the
Defendant has said he bought the
land from them. That he is not
aware that his family had sold
land to the Defendant.
Even though Capacity was not
made an issue during the trial;
the Defendant had raised it in
his reply to the Plaintiffs
written address.
The basis of his argument is
that the Plaintiff instituted
the action as trustee for his
named children, but had failed
and or refused to tender the
trust instrument and to show
whether the trust instrument had
been registered or not.
This practice of counsel raising
issues not raised in the
pleading and evidence during
trial must be condemned. If
capacity was crucial to the
Defendants case; it should have
been set down as an issue or
even raised it at the trial.
This is so because in the case
of Sarkodee I Vrs. Boateng II
(1982-83) GLR 715, the Supreme
Court held in its second holding
that “it was elementary that a
Plaintiff or Petitioner whose
capacity was put in issue must
establish it by cogent
evidence……….”
In the Defendants statement of
defence the Defendant merely
denied the Plaintiffs paragraphs
1,2,3,4,5,6,7 and 8, without
making an assertion to those
averments. At the direction
stage, capacity was also not
raised
Since the Plaintiff pleaded that
it was he who acquired the plots
for his children evidence to
that effect was given and
tendered the indenture given to
him by the 2nd
Defendant who also corroborated
that evidence that it was the
Plaintiff who acquired the land
from them. The Defendant did not
challenge the evidence that the
land was acquired by Plaintiff
for his children as was held in
the case of Fori Vrs. Ayirebi
and Others (1966) GLR 627,
holding 6.
Since it was the Plaintiff who
acquired the land for his
children, he is the proper
person to institute the action
in his own name, but not in the
name of his children. During his
life, he can even mount an
action against his children to
claim the land even if they want
to take it from him.
From the pleading and evidence
of the parties and issue ‘1’ the
conclusion that may be drawn is
that whereas the Plaintiff’s
case is that the plot in dispute
falls within the land adjudge by
the Supreme Court to be for
Agyei Osae and others, in the
suit entitled Agyei Osae and
others vrs. Agyeifio and others
(2007-08) SC GLR 499, the
Defendant seem to be saying that
the land falls outside the land
adjudged to be for the Agyei
Osae family. The evidence
before me however establishes
that the plot in dispute falls
within the land known as
Otinshie Village Lands.
At Page 508 of the report on the
case reported in (2007-08) SC
GLR, Mr. Justice Brobbey J.S.C
held that “…………………. In this
connection, the Otinshie Village
should only be the area which
the Plaintiff’s ancestors had
effectively reduced into their
possession i.e. their buildings,
farm lands, cemetery etc.”
The 2nd Plaintiff’s
representative, who said he is
80 years, gave evidence that the
Village of Otinshie was founded
in 1870, and being aware of crop
rotation, having founded a
Village over 100 years ago, we
were not farming at one spot; we
were migrating from place to
place and these are the farms.
Secondly there is a difference
between Village and Cottage.
Village is made up of many
houses and Cottage one house.
The Defendant himself also
admits that where the plot is
situated is part of Otinshie
Village. That is why he pleaded
that he bought the plot from
Afutu and Osae family, who is
the Plaintiff’s grantor.
The Defendant also gave evidence
in chief that in July, 2005 Mr.
Koomson called him and told him
that Mr. Obeng Mensah had one
plot of land at Otinshie Legon.
Again whilst the Defendant was
under cross examination he was
asked
Q. I am putting it to you
that the land in dispute falls
within the Otinshie Village land
A. I know it is Otinshie
land.
With this admission by the
Defendant and under the
aruthority of Tsrifo vrs. Duah
(1959) GLR 65, I hold that the
plot in issue is part of
Otinshie Village land, and that
it was owned by the 2nd
Plaintiff’s family before it was
leased to the 1st
Plaintiff on 15th
March, 1997.
Having resolved issue ‘I’ in
favour of the 1st
Plaintiff, it follows that the 1st
Plaintiff has a valid grant
since the 2nd
Plaintiff admits that his family
leased the plot to the 1st
Plaintiff in 1997, and prepared
exhibit ‘B’ for him. Even
though exhibit ‘B’ has not been
registered, the owners of the
land admits that they leased it
to 1st Plaintiff and
they have not given it to any
other person. The 1st
Plaintiff can register it at
anytime under the Land Title
Registration Law (P.N.D.C. Law
152). In this case the
Defendant has also no Registered
Deed. Both exhibits 2 and 4 are
unregistered. Apart from the
fact that exhibit 2 is
unregistered, the 2nd
Plaintiff has denied that his
family gave land to the
Defendant, and that they have
not executed any document for
the Defendant. There is also no
signature of any of the 2nd
Plaintiff’s family members on
exhibit 2. The Defendant and
his two witnesses also say they
were not there when it was
signed, as it was Paa Nii who
brought exhibit 2. All the
receipts covering the
transaction i.e. the Exhibit 3
series were not issued in the
name of the 2nd
Plaintiff’s family. Paa Nii,
who is alleged to have procured
exhibit 2 was also not called to
testify whether Exhibit 2 was
executed by 2nd
Plaintiff’s family or not.
With regard to exhibit 4, since
the land did not belong to those
who executed it, even if it had
been registered, it would have
been of no effect. They could
not transfer any interest in the
land as they had nothing to
transfer. The decision in Agyei
Osae and others vrs. Adjeifio
and others (2007-08) SC GLR 499
had divested the Tse-We Family
of any interest in the Otinshie
lands. In the case of Brown
vrs. Quarshigah (2003-04) SC GLR
930, Professor Kludze JSC held
that “The document the Plaintiff
registered as a lease was a
nullity as it passed to him
nothing.” This conclusion was
reached because the purported
lessee told a lie of itself, and
that lie tainted and invalidated
the resultant land certificate
issued to the Plaintiff.
On issue 3, the 1st
Plaintiff led evidence that he
took possession of the plot by
building a fence wall around the
plot and built a two bedroom
outhouse on it. P.W.2 also
corroborated the evidence of the
1st Plaintiff and
said he was the person
contracted to put up the fence
wall and the outhouse. He
tendered exhibit ‘C’ series to
prove his case. The Defendant
and his witnesses said they went
unto the land in 2005 and that
there was nothing on the land.
When the 2nd
Plaintiff was being
cross-examined by Defence
counsel; it was suggested to him
as follows
Q. Mr. Affutu, will you be
candid to tell this honourable
Court that after the Court of
Appeal Judgment involving your
family there were a lot of
demolition around Otinshie and
Bejin, Not so?
A. Yes but illegal because the
Judgment did not ask for any
demolition.
Q. After the demolition your
family did a lot of allocations
to various families?
A. No my lord.
My understanding of these
questions by Defence counsel is
that even if the Plaintiff
erected a fence wall and an
outhouse in 1997, that might
have been destroyed after the
2005 Court of Appeal Judgment;
which reversed the Judgment of
the High Court and entered
Judgment for the Defendant
Appellants in the Court of
Appeal in the suit already
referred to. If destructions
and allocations took place, then
it is the Tse-We family of Kle
Musum Quarter who might have
done this. Having destroyed the
fence wall and the outhouse, the
Defendant might not have seen it
when they went unto the land. I
therefore believe the 1st
Plaintiff and P. W. 1 that the 1st
Plaintiff took possession, by
building a fence wall and a two
bedroom outhouse on it, and that
this constitute possession by
the 1st Plaintiff.
I also believe the evidence of
the Defence that at time that
they entered the land, there was
no indication that the land was
in possession of anybody, since
there had been demolition after
the court of Appeal Judgement.
On issues 4 and 5, it is my
holding that the evidence before
the Court is that the Defendant
did not have any grant from the
Afutu and Osae Family, as the 2nd
Plaintiff denied any knowledge
of the Defendant. The Defendant
and his witnesses did not see
any of the heads of families of
Afutu and Osae sign Exhibit 2.
Paa Nii who purportedly acted on
behalf of the Osae family was
also not called. Exhibit 2 is
alleged to have been executed on
20th September,
2005. Exhibit ‘B’ was however
executed on 15th
March, 1997. On the face of
these two documents, it can be
said that Exhibit ‘B’ for the
Plaintiff was executed before
Exhibit 2 was, even if it had
been executed by the 2nd
Plaintiffs family.
Even if exhibit 2 was executed
by the 2nd
Plaintiff’s family, it could not
have passed any title since the
family had already given the
land to the Plaintiff. In Cofie
vrs. Otoo (1959) GLR 300 it was
held that Afful having sold the
land to the Defendant in 1948,
he had no interest in it which
he could convey to the Plaintiff
in 1953. Again in Sasu vrs.
Amuah-Sekyi (2003-04) SC GLR
742, the Supreme Court held in
its 4th holding that
“By virtue of the principle of
Nemo dat quod non habet, the
same stool had no land to sell
to the Appellant. Therefore the
Appellant acquired no valid
title to the land when he bought
it in 1973. That meant that as
between the 2nd
respondent and the appellant,
the appellant had no valid title
to the land.
Since the 2nd
Plaintiff denies any knowledge
of a grant to the Defendant,
which grant was made in 2005,
but the Plaintiff’s grant was
made in 1997, and the 2nd
Plaintiff admits that their
family made that grant to the 1st
Plaintiff, I hold that the
Defendant had no grant of the
parcel of land in dispute, from
the true owners.
The Defendant is however calling
for the aid of Land Development
(Protection of Purchasers) Act
1960, (Act 2). The Defendant’s
case is that he was made to
believe that he was acquiring
the land from Dr. T. A. Osae and
Mr. E. A. Afutu, joint Heads and
Lawful representatives of Osae
Family of Otinshie/Bendzi Family
Union. D.W. 2 Mr. Obeng Mensah
who found the land for the
Defendant through D.W. 1 who
works with Land Valuation
Board. Even though the
Defendant, D.W. 1 and D.W. 2 may
be said to have been negligent
there is evidence that the
Defendant honestly believed that
he was acquiring the land from
the true owners. After the
Court of Appeal Judgment when
the 2nd Plaintiff’s
Family lost the appeal, and
another group, the Tse –We
Family informed the Defendant
that they had won; the Defendant
again went to them to regularize
his grant.
Even though the Tse-We family
lost the area where the plot in
dispute is situated to the Osae
Family, I believe Act 2 can be
applied to protect the
Defendant. This is so because
the Plaintiff’s representative
gave evidence in chief that
“Somewhere around September,
2005 they were not going to the
land for about one month. They
went there later part of October
and saw that a four bedroom
house had been constructed on
the land and almost completed.
It was not roofed. It was at
the lintel level so I stopped
the workers from building. In
the space of one week, when I
went there they had roofed and
painted the house. We were
still finding out the owner of
the house but nobody was
prepared to tell us, so we
decided to bring the case to
Court.
The import of this evidence is
that the house was built before
the writ was issued. It cannot
therefore be said that the
Defendant built the house in bad
faith, as was held in the case
of Oforiwa vrs. Laryea (1984-86)
2 GLR 410. In this case the
Defendant built with the honest
belief that he had acquired the
land from the proper family.
Nobody also stopped him or even
alerted him that the land
belonged to him until he had
completed. I therefore do not
believe the evidence of the
Plaintiff that he had a
caretaker on the land, and kept
on going to the land till
September, 2005 and that he went
there again in the latter part
of October.
If he had been going there, he
would have been able to caution
the defendant when he entered
the land.
Section 1 of Act 2 states that
“(1) where:-
a)
A person (in this section
referred to as ‘the purchaser;)
has taken a conveyance of land
in a prescribed area at any time
after 31st December,
1904 (whether before or after
the date on which the area
became a prescribed area), and
b)
The purchaser or a person
claiming through him has in good
faith erected a building on the
land, and
c)
Proceedings are brought to
obtain a possession order in
relation to the land on the
ground that a person other than
the purchaser or a person
claiming through him is entitled
to the land,
The court, where it considers
that if this Act had not been
passed the possession order
would fall to be made by reason
that the conveyance taken by the
purchaser did not operate to
confer on him the title to the
land, but that to make the order
would cause hardship and
injustice to the person against
whom it would fall to be made,
may, instead of making the
possession order, make an order
providing that the conveyance
taken by the purchaser shall be
deemed for all purposes to have
operated to confer on him the
title to the land.”
Since the Defendant completed
the building on the land before
the Wirt in this suit was
issued, under a mistaken believe
that he had taken a lease from
the proper owners of the land
and nobody prompted him during
the building construction that
the land did not belong to him,
until it was almost completed, I
will decline to make an order of
Recovery of Possession against
the Defendant in favour of the
Plaintiff, even though the
Plaintiff has a better title to
the land than the Defendant. I
will however make an order in
favour of the Defendant under
Act 2 to the effect that the
Defendant’s Indenture dated 20th
September, 2005 be rectified by
the Registrar and be accepted as
conferring title to the land in
dispute on the Defendant, as an
order for possession in favour
of the Plaintiff would cause
hardship and injustice to the
Defendant.
The Defendant is however to pay
the sum of GH¢42,000.00 being
double the amount of money
Defendant paid for the plot, to
the Plaintiff, as subsection 2
of the Act empowers me to award
some compensation to the
Plaintiff.
In summary I enter Judgment for
the Plaintiff as follows
1)
Payment of the sum of
GH¢42,000.00 as compensation for
loosing the plot in dispute to
the Defendant. After paying this
sum of GH¢42,000.00, the
Defendant is to be considered as
the owner of the plot in
dispute. Ordinarily, I should
not nave awarded cost against
the Defendant since I have found
that he built the house under a
mistaken believe that he had
acquired the land from the true
owners. However, after having
heard the evidence of the true
owners, that they had never made
any grant to the Defendant, one
would have expected the
Defendant to show remorse and
restricted his defence to
protection under Act 2.
Instead, the Defendant now
decided to challenge the
capacity of the 1st
Plaintiff in mounting the
action. Having failed in that
attempt, I am of the view that
the Plaintiff is entitled to
cost.
2)
I therefore award cost of GH¢8,000.00
against the Defendant
Counsel: Mr.
Shahadu Mohammed for the
Plaintiff
Mr. Nashiru Yusif for
Mr. Ofosu Gyeabour for the
Defendant
(SGD.) MR. JUSTICE S.H. OCRAN
Justice
of the High Court
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