Nii Kofi Akrashie II (Chief of Oshiyie, suing for and on behalf of the Oshiyie Stool) v Jobbies Limited, Ga South Municipal Assembly and Lands Commission

Plaintiff is the chief of Oshiyie in the Ga Municipal Assembly in Greater Accra Region. The 1st Defendant is a Limited Liability Company with its registered offices in Kaneshie Accra whereas the 2nd Defendant is a statutory body established by government with administrative responsibility for the Ga South Municipal Assembly. The 3rd Defendant is the statutory body responsible for land administration within Ghana.

The Plaintiff says that originally Oshiyie was founded by their ancestor Nii Kwashie Yaah together with his kinsmen called Nii Kwi and Nii Barnor who were natives of the James Town Quarter of Ngleshie Alata and were fishermen and farmers. The Gold Coast Chief List of 1028-1929 lists the then headman of the village of Oshiyie as Onukpa Otu who was a direct descendant of Nii Kwashie Yaah the founder of the Osgiyie Township.

That from time immemorial, Oshiyie being an Ngleshie Alata James Town settlement, the inhabitants and headmen has owed allegiance to the James Town Paramount stool. Furthermore, in the high court case entitled Concession Enquiry No. 1120(Accra) Nmako Salt Concession reported in the [1961] GLR, in which judgment was given in favour of the James Town Stool. the evidence of Nii Adja Kwao 11 the Manche of James Town , Accra was that the James Town stools is and has been the owner of the land around sakumo river and the bed of the said river from time immemorial and that part of the land was granted to James Town Stool subjects who founded the James Town villages of Tetteh-Ogbu, Mpoasem, Jonkobli, Dama, Aplaku Borteh-Annorh, Kokrobitey, Oshiyie and Oblogo, several hundreds of years ago and the said villages have been and still are wholly occupied by James Town Stool subjects who pay tribute to the James Town Stool. That over the years the purely Ga settlement was joined by certain persons who migrated from Moree in the Central Region who were mostly referred to as the Annoh family. That Afadi Annoh family who migrated from Moree fraudulenly converted Oshiyie stool lands into family lands. A member of the Afadi Annoh family who succeeded to the stool called Nii Afadi 111 executed a deed of indenture dated 26th August 1976 between himself and a certain Harry Ashite with land Registry No. 220/1976. AC 7124 A/75, 32000/28448.

The said document clearly stated that the Oshiyie lands are stool lands and was alienated with the consent and concurrence of the principal elders of the stool whose consent and concurrence was a required for the valid alienation of the Oshiyie stool lands. That there are series of letters from the Administrator of stool lands in respect of payment of ground

rent which clearly shows that Oshiyie lands are stool lands. That the attempt to convert Oshiyie lands into family land by the Moree family was caveated by the late paramount chief of James Town Oblempong Nii Koo Ababio at the lands commission on 14th January1999. That despite the caveat aforementioned the Afadi Annoh family has been secretly and unlawfully alienating Oshiyie lands to unsuspecting grantees. That in the case of Dr. Edward O. Asante and Dr. Osei Tutu Sarfo vrs Kweku Preku suit no, FAL/12/2016 in which judgment was given by the High Court on the 17th of December 2018, it was held inter alia that Nii Afadi anno IV lacked capacity to alienate Oshiyie lands.

The Plaintiff says that sometime in the year 2018 officials from the Ga South Municipal came to Oshiyie to see him at the Palace to request for a piece of Land in Oshiyie for the establishment of a clinic for their community and a place known as Nana Koo which was a one-acre former sacred grove in Oshiyie was given to the 2nd Defendant for the building of the Clinic. After the transaction Alhaji Habib Saad provided one ram, a bottle of schnapps and Ghx500 for the rituals to be performed to seal the said transaction and to pave way for the work to commence. As at now the clinic has been completed and commissioned. Plaintiff says that sometime in the year 2019 their attention was drawn to a publication in the Ghanaian Times of 4th May 2019, that the 1st Defendant was in the process of registering a piece or parcel of land in Kokorbite. That the grantor of the land was Nii Afadi Annoh who was described as the head and lawful representative of the Moree family of Oshiyie. That after thorough investigations they detected that it was a land in Oshiyie so Plaintiff through his lawyers caveated per letter dated 9th May, 2019 to lands commission indicating that in the case of Weku Nukpa Nii Anum Otoo And Weku Nukpa Odaartey Lamptey vrs Paul Ameni Annoh & Lamds Cp,,ossom siot mp A1/29/17, the circuit court in Weija had restrained the lands commission from registering any documents emanating from Paul Ameni Annoh’s family pending the final determination of the suit.

However, the lands commission responded to the letter per their letter dated 26th September 2019 indicating that they would go ahead to register the land for the said 1st Defendant. Plaintiff got to know that the 1st Defendant changed its original site plan to reflect the land was in Oshiyie and got same to be registered in its name. That the land in the 1st Defendant’s documents measures 1.78 acres and it includes the land given to the 2nd Defendant for the clinic. That the said document given to the 1st Defendant was backdated to the year 2004 and did not indicate the date the document was executed and the consideration given for the land neither did it state the ground rent to be charged. The said indenture also did not contain the signature of Nii Abbam Barnor the alleged Mankralo for the Afadi Annoh family whose signature appears on all Afadi Annoh documents as a witness. That the signatures of Nii Afadi Annoh and Nii Boy III Gyasetse were also forged on the said document.

That on the 29th of May, 2019 the Afadi Annoh Royal family of Oshiye wrote a letter to the Lands Commission and the said letter was signed by Nii Afadi Annoh V and others. Plaintiff says that the Nii Afado Annoh Signatue on the letter is the same as the one on the indenture given to the 1st Defendant dated 2004. That this cannot be possible as Nii Afadi Annoh IV died sometime in 2013. That the 1st Defendant has succeeded to register the said document at the Registration division of the Lads Commission and has been given a certificate dated 27th September, 2019 with No. GA59993 volume 86 folio 272p. That the 1st Defendant is using this fraudulent document to claim compensation from the 2nd Defendant in respect of the land at Oshiyie which was given for the clinic

Plaintiff says that the Oshiyie lands are stool lands and therefore the 1st Defendant’s grantors do not have the capacity to alienate such lands to 1st Defendant. That in the year 2004 the head of the Moree family was Ebusuapanyin Annoh, therefore no lawful representative of the family apart from him could have acted as head of family. That despite all the caveats and restraining orders from the late paramount chief of Oshiyie

Oblempong Kojo Ababio V, Lands Commission has ignored them and gone ahead to register documents emanating from the Afadi Annoh family. The 1st Defendant has no legitimate right to demand compensation from the 2nd Defendant as the land for the clinic was given with the consent of the stool and for the benefit of the whole society. That if indeed the land actually belonged to the 1st Defendant it would not have waited for the clinic to be completed before claiming compensation for the land. Plaintiff also contends that any agreement between the 1st and 2nd Defendant is null and void and of no effect. That it would be necessary to set aside the said land title certificate No. GA59993 issued by the lands commission to the1st Defendant

Plaintiff claims per the writ as follows

1. A declaration of title to ALL THAAT PIECE OR PARCEL OF LAND situate and lying at OSHIYIE- ACCRA containing an approximate area of 1.78 acres more or less and bounded on the north east by lessors land measuring 224.6 feet more or less on the south east by proposed road measuring 272.9 feet more or less on the north west , by lessors land measuring 390.1 feet more or less on the south west by lessors land measuring 106.6, 145.8, feet respectively which piece of land is more particularly delineated on the plan attached hereto and thereon shown edged pink

2. A declaration that the land title certificate No. GA59993 was fraudulently procured

3. An order for the 3rd Defendant to set aside and delete from its records the land title certificate No. GA59993

4. An order to vest the 2nd Defendant the land on which the clinic is located

5. Costs including solicitor’s fees.

The 1st Defendant had to be served by substitute service after leave was obtained from the court to do so when personal service proved ineffective

The 3rd Defendant entered appearance to the writ on the 2nd of November, 2023 and filed a defence and stated that, hereinafter expressly admitted the 3rd Defendant denies each and every allegation of fact contained in the statement of claim. Most of the facts contained in the statement of claim were denied because 3rd Defendant did not possess adequate facts to form a belief or respond to same. In denying paragraph 28 of the statement of claim, the 3rd defendant stated that the Plaintiff had the liberty to appeal against the determination of the objection but failed to take any such step. In paragraph 14 of the statement of defence the 3rd Defendant states that it will comply with the orders of the court when judgment is delivered.

The 2nd Defendant filed an appearance on the 2nd of October 2023 but failed to file a statement of defence.

After the Plaintiff had withdrawn an application for judgment in default of defence against the parties, the court set the matter down for trial and ordered parties to file their witness statements and pre-trial check lists. The Defendants failed to respond to all the processes and so CMC was held with the Plaintiff only. The records show that notices were served on the Defendant on 25th of October 2023 and 7th September 2023, 14th May 2024. The 2nd Defendant entered appearance on 11th November 2023, the 3rd Defendant entered appearance on 2nd November, 2023 and filed a defence. Subsequently the defendants failed to respond to all the hearing notices served on them. The court further ordered that a publication be made in the daily graphic about the date of commencement of trial to put all the Defendants on notice but they took no notice of the publication as they failed to show up. The Plaintiff’s witness was made to prove his case by entering the witness box and giving evidence.

The court based on the processes filed will set the following issues down for trial

i. Whether or not the Plaintiff is the owner if the land in dispute.

ii. Whether or not Defendant has unlawfully interfered with the Plaintiff’s

ownership.

I will now consider the evidence led by the Plaintiff in support of his case to see if he has been able to make a case which entitles him to judgment. In AKOTO II & ORS V. KAVEGE & ORS1 it was held that in a suit for declaration of title, the plaintiff has to establish his root of title, mode of acquisition, positive acts of unchallenged and sustained possession or of substantial user and the boundaries of the land.

The Plaintiff testified and presented Plaintiffs tendered exhibit ‘A’-‘S’

1. Copy of extract of National Register of Chief Greater Accra Region undated

Exhibit ‘A’ (1 page)

2. Copy of an extract of the Ghanaian Times newspaper publication dated 4th May

2019 Exhibit ‘B’ (1 page)

3. Copy of caveat dated 9th May 2019 Exhibit ‘C’ (2 pages)

4. Copy of the ruling of Weku Nukpa Nii Anum Otto and Weku Nukpa Odartey Lamptey Vs. Paul Amenu Annoh and Lands Commission suit number A1/29/17 Circuit Court Weija dated 28th July 2017 Exhibit ‘D’ (2 pages)

5. Copy of letter from Lands Commission dated 26th September 2019 Exhibit ‘E’ (1

page)

6. Site plan for Oshiyie stool undated Exhibit ‘F’ (1 page)

7. Copy of the Gold Coast Chief list of 1928-1929 undated Exhibit ‘G’

8. Copy of indenture dated 26th August 1975 Exhibit ‘H’ (4 pages)

9. Copy of the Ghanaian Times publication (Page 8) dated 11th July 1999 Exhibit ‘J’ (1 page), copy of correspondence to Chief Registrar of land title dated 14th January 1999 ‘J1’ (1 Page).

10. A caveat to the Lands Registry dated 18th March 1998 Exhibit ‘K’ (1 page)

11. A copy of a Re: Disclaimer- Registration of Nii Afadi Annoh IV dated 20th April 2007 Exhibit ‘L’ series (1 page), a letter titled Oshiyie stool lands affair – Ga South District dated 10th April 2013 ‘L1’ (2 Pages), a letter titled second submission confirmation of Oshiyie family land and disclaimer of Registration of Nii Afadi Annoh VI dated 17th March 2008 ‘L2’ (1 Page)

12. Indenture dated 14th June 2003 Exhibit ‘M’ (9 Pages)

13. Indenture dated 14th August 2006 Exhibit ‘N’ (7 Pages), application for consent to

registrar of lands dated 20th December 2016 exhibit ‘N1’ (1 page)

14. Indenture dated 7th July 2015 Exhibit ‘P’ (7 Pages)

15. Administration of stool lands dated 17th September 2021 Exhibit ‘Q’ series, a letter for payment dated 10th September 2021 ‘Q1’ and receipt dated 19th July 2022 ‘Q2’ (6 Pages)

16. Ghana Law Report 1961-part 1 Exhibit ‘S’ (33 Pages)

17. Judgment dated 17th December 2018 Exhibit ‘T’ (12 Pages)

18. A judgment dated 3rd July 2023 Exhibit ‘U’ (10 Pages)

Section 111(1) of the Land Act, Act 1036 states that an entry in the land register shall be conclusive evidence of title of the holder on the interest specified in the land register. Section 119 of the Act also states that the rights of a registered proprietor of a parcel of land whether acquired on first registration or subsequently or by an order of a court, are indefeasible and shall be held by the proprietor together with the rights and privileges attaching to the parcel of land free from all other interests and claims.

The evidence of registration of the land in the name of the 1st Defendant is conclusive evidence of his ownership unless there is evidence to the contrary. Once there is evidence that the name of the 1st Defendant had been entered in the land register, the Plaintiff bore the burden of leading evidence to displace the registration.

It is not the case that once a person waives a land certificate, that ends the matter. In BROWN V. QUASHIGAH [2003-2004] 2 SCGLR 930 the Supreme Court held that

‘’Under sections 43(1)-(4) and 48 of the Land Title Registration Law, 1986 (PNDCL 152) the rights of a registered proprietor of land acquired for valuable consideration or by an order of a court shall be indefeasible and shall be held by the proprietor together with all privileges and appurtenances attaching thereto free from all other interests and claims whatsoever. An indefeasible title meant a complete answer to all adverse claims on mere production of certificate. However, an indefeasible title was subject to overriding interests such as stated in section 46(1)(f) of the law, namely ‘rights whether acquired by customary law or otherwise, of every person in actual occupation of the land save where enquiry is made of such person and the rights are not disclosed.’’ On the evidence of the instant case the plaintiff did not give the defendant notice of the registration of his lease in respect of the disputed land. Consequently, the plaintiff’s lease registered under

PNDCL 152 was subject to the defendant’s right of occupation of the disputed land’’… The court went further to say that there appears to be a mistaken feeling abroad that in land matters once a party gets his title deeds registered on the land Title Register, his title is indefeasible. That of course is not true.

To prove his case the Plaintiff tendered Exhibit ‘A’, a Gazette notification which establishes the capacity in which the Plaintiff has mounted this suit as chief of Oshiyie suing on behalf of the Oshiyie stool. To prove that Oshiyie lands were stool lands he tendered exhibit F, Osihyie boundary plan. Exhibit G the gold coast chief list of 1928-1929 which names the headman of Oshiyie as Onukpa Otu, who Plaintiff says is the direct descendant of Nii Kwashie Yaah, the founder of Oshiyie. To prove that Oshiyie lands have always been stool lands exhibit ‘H’ a deed of indenture executed in 1976 which described the lands as stool lands was tendered. According to the Plaintiff in the 1990’s one Afadi Annoh from Moree family attempted to convert Oshiyie lands as family lands but same was caveated by the late paramount chef of James Town Oblempong Nii Kojo Ababio under whose paramouncy Oshiyie belonged through a publication which is exhibit ‘J’ and ‘J1’ a caveat to the lands commission and a publication in the Ghanaian times dated 11th January 1999. Other pieces of evidence to show that Oshiyie lands are stool lands tendered by the Plaintiff include some indentures dated 14th June 2023, 14th August 2006 and 7th July 2015 all describing Oshiyie lands as stool lands and duly executed by their chief with the consent and concurrence of their principal elders. See exhibits ‘M’, ‘N’, ‘P’.

Furthermore, to confirm their ownership of the land the Plaintiff relied on exhibit ‘S’, a judgment of the High Court entitled concession enquiry No. 1120 (Accra) Nimako Salt Concession reported in the (1961) GLR. the Plaintiff relied on the evidence of Nii Adja Kwao 11, Manche of James Town Accra who stated that the James Town Stool is and had been the owner of the land arounde Sakumo river and the bed of the said Sakumo river from time immemorial and that part of the land was granted to James Town stool subjects who founded the james town villages of Tetteh-Ogbu, Mpoasem, Jonkobli, Dama, Aplaku, Bortey-Annorh, Kokrobity, Oshiyie and Oblogo several hundreds of years ago and the said villages have been and still are wholly occupied by James Town Stool Subjects who pay tribute to the James Town Stool. Again, exhibit T, which is a judgment of the High Court in the case of Edward O. Asante and Dr. Osei Tutu Sarfo vrs Kweko Preko suit No. FAL/12/2016, the court stated that Nii Afadi Annoh IV as the head and lawful representative of the Moree family of Oshiyie, lacked capacity to alienate Oshiyie lands because he was not the head of Moree family whose head at the time was

Ebusuapanyin Paul Ameni Annoh. Even though the case of Edward O. Asante (supra) is a judgment of the high court which is of coordinate jurisdiction, the caveat given by my brother His Lordship K. A. Gyimah at the beginning of his judgment limiting his decision to the specific land in dispute before him is helpful and instructive. I take a cue from him and limit my judgment to the specific parcel of land before me and state further that any determination made before me in this judgment does not extend to all the lands on Oshiyie but the specific parcel of land which is the subject matter in this dispute and as described by the Plaintiff in the schedule.

Plaintiff pleaded that the 1st Defendant obtained the land documents by fraud. Particulars of fraud:

a. The 1st Defendant’s document was back dated to the year 2004

b. The said document has no commencement date and does not state the consideration paid for the land

c. The said signature of Ni Afadi Annoh and Nii Boye III Gyasete were forged

d. The signature of Nii Afade Anno IV is the same of Nii Afadi Annoh V which is on a letter dated 29th May 2019

The Supreme Court in the case of APEAH AND ANOR V. ASAMOAH [2003-2004 SCGLR] 226 held that notwithstanding the rules on pleadings, the law was that where there was clear evidence of fraud on the face of the record, the Court could not ignore it.

The plaintiff contends that a publication was made concerning the registration of the disputed land in the name of the 1st Defendant. Also Plaintiff sent a caveat against registration of the land into the name of 1st Defendant after seeing the publication but lands commission ignored their caveat see See Copies of an extract of the Ghanaian Times newspaper publication dated 4th May 2019 Exhibit ‘B’, a caveat dated 9th May 2019 Exhibit ‘C’ and letter from Lands Commission dated 26th September 2019 Exhibit ‘E’ stating that

they would go ahead with the registration of the disputed land. That Lands Commission registered the land and issued a certificate dated 27th September, 2019 with No. GA59993 volume 86 folio 272p (no exhibit). Plaintiff further contends that 1st Defendant’s grantors knew all along that Oshiyie lands are stool lands And Nii Afado Anno IV did not have the capacity to alienate Oshiyie stool lands as he had never been a chief on Oshiyie nor the head of family of the Moree family of Oshiyie . That Plaintiff’s predecessor Nii Kofi Akrashie 1 was the substantive chief of the Oshiyie Stool at the time the Plaintiff ((sic) claimed he acquired the land and therefore any grant of the Oshiyie stool lands by the said Nii Afadi Annoh IV null and void.

Furthermore, the Plaintiff says that in any case the land in dispute was gifted to the 2nd Defendant by the Oshiyie Stool as rightful owners of the land and same has already been developed with a clinic operation on it for the benefit of the Oshiyie community.

It is therefore established that it is the Plaintiff who owns the land in dispute and gave same to the 2nd Defendant who is now in possession of the land in dispute.

The evidence in support of the Plaintiff’s case was not challenged in any way since the 1st Defendant did not avail himself for the trial despite being given notices. Although the 3rd Defendant filed a defence it failed to avail itself for the trial or even file a witness statement. Pleadings cannot be considered evidence and therefore not having put any flesh to their pleadings for it to be tested under cross-examination, there is no evidence in support of the 3rd Defendant’s case. It is the law that what is pleaded is not necessarily proof of the truth of the matter pleaded (see GIHOC REFRIGERATION & HOUSEHOLD PRODUCTS LTD V. HANNA ASSI [2005-2006] SCGLR 458 AT 476) and where the evidence led by a party is not challenged by his opponent in cross- examination and the opponent does not tender evidence to the contrary, the facts deposed to in that evidence are deemed to have been admitted by the opponent and must be accepted by the trial court (see TAKORADI FLOUR MILLS V. SAMIR FARIS [2005- 2006] SCGLR 882 AT 900.

The court finds that at the time the 1st Defendant applied to register the disputed land, the Plaintiff were already in possession. The purported grant made to the 1st Defendant by his grantor is null and void as the land belonged to the Plaintiff. The 1st Defendant therefore owed it a duty to disclose to the Land Registrar that the property he was seeking to register was encumbered but he hid this information from the Land Registrar. From the evidence the lands Commission went ahead to register the disputed land and issued a certificate dated 27th September, 2019 with No. GA59993 volume 86 folio 272. Even though there is no copy of the said certificate, the admission by lands commission that it would go ahead and register the land corroborates the position of the Plaintiff that indeed the land was registered in the name of the 1st Defendant. The particulars of fraud provided by the Plaintiff in his pleadings is not what proved the fraud as the document in question was not provided as evidence. What proved the fraud is the collusion between the 1st Defendant and his grantor to register the disputed land at lands commission. The court is unable to gloss over this collusion between the 1st Defendant and his grantor in the face of the evidence of long history possession of the Plaintiffs.

Since the Plaintiff’s evidence is unchallenged, I accept same and enter judgment for him as the lessee of all that piece or parcel of land situate, lying and being at OSHIYIE- ACCRA containing an approximate area of 1.78 acres more or less and bounded on the north east by lessors land measuring 224.6 feet more or less on the south east by proposed road measuring 272.9 feet more or less on the north west , by lessors land measuring 390.1 feet more or less on the south west by lessors land measuring 106.6, 145.8, feet respectively which piece of land is more particularly delineated on the plan attached hereto and thereon shown edged pink

The court sets aside the land title certificate No. GA59993 which was fraudulently procured by 1st Defendant and orders the 3rd Defendant to delete from its records the land title certificate No. GA59993. The 2nd Defendant claims title from the plaintiff so once the Plaintiff has been adjudged the owner of the land and the Plaintiff does not dispute the land of the 2nd Defendant there is no issue between them for determination.