Alex Dosu v Onyeanula Godwin

By a writ of summons issued on 30th July 2014, the plaintiff claimed the following reliefs against the defendant:

i. Declaration of title to all that piece of land lying and being at Kwabenya containing an approximate area of 0.32 acre more or less bounded on the North by a proposed road measuring 86.5 feet more or less on the East by Lessor’s land measuring 137.5 feet more or less on the South by Lessor’s land measuring 117.4 feet more or less on the North-West by Lessor’s land measuring 149.8 feet more or less.

 

ii. Damages for trespass.

iii. Order for recovery of possession.

iv. Order of perpetual injunction to restrain defendant or his workers, assigns, servants or any other person claiming through him or by him from going onto the plaintiff’s land.

v. Costs.

It is the plaintiff’s case that he acquired the land in dispute from the Nii Kwao Blenya family of Kwabenya by a lease dated 20th March 1996. He took possession of the land and constructed a fence wall around it and deposited building materials on the land in preparation for undertaking developments on the land. He asserts that he had been in undisturbed possession of the land until sometime in June 2014 when the defendant forcibly entered the land, stationed land guards and commenced development on the land. The plaintiff could not abate the trespass because of the presence of the land guards so he had to lodge a complaint at the Kwabenya Police Station. It is the plaintiff’s case that the defendant will not stop his acts of trespass unless ordered by the court hence the present action.

Defendant’s defence and counterclaim

In his statement of defence and counterclaim, the defendant denied the plaintiff’s claims and however asserted ownership over the land as having acquired it from the Odai Ntow family of Teshie by a lease dated 27th June 2012. The defendant asserts that he took possession of the land and has built a dwelling house on it where he lives currently with his family. He has also registered his interest in the land and has been issued with a Provisional Land Certificate. He further asserts that this action is part of a series of harassments by the plaintiff and his agents because he is not a Ghanaian but a Nigerian. The defendant therefore counterclaimed for the following reliefs against the plaintiff:

i. Declaration of title to all that piece or parcel of land lying and being at Kwabenya in Accra, bounded on the North by a proposed road measuring 89.1 feet more or less on the East by Lessor’s land measuring 179.3 feet more or less on the South by Lessor’s land measuring 90.3 feet more or less on the West by Lessor’s land measuring 180.2 feet more or less, containing an approximate area of 0.36 acre or 0.15 hectare.

ii. Order of perpetual injunction restraining the plaintiff and his agents, servants, workmen, assigns or any other person or entity claiming through him or by him from interfering with the title, ownership, possession or occupation of defendant’s land.

iii. Damages.

 

iv. Costs including solicitor’s cost.

Reply and defence to counterclaim

In a reply and defence to counterclaim filed on behalf of the plaintiff, the plaintiff denied the defendant’s claim and further asserted that the defendant’s grantors, the Odai Ntow family, does not own the land in dispute and they could thus not have made a valid grant to the defendant. The plaintiff further stated that the defendant built his said dwelling house during the pendency of the suit despite an injunction order and he was subsequently convicted for contempt. The plaintiff therefore asserts that the defendant does not have any interest in the land in dispute and as such his reliefs in his counterclaim are not maintainable. He therefore called for a dismissal of the defendant’s counterclaim and a grant of his reliefs before the court.

Issues for trial

At the close of pleadings, the following issues were set down for trial by the court differently constituted:

i. Whether the land which is the subject matter of dispute in this suit belongs to the plaintiff or the defendant?

ii. Whether it is the plaintiff’s grantor or the defendant’s grantor that could make a valid grant of the land?

iii. Whether plaintiff is entitled to the reliefs endorsed on the writ?

iv. Whether the defendant is entitled to his counterclaim?

v. Whether or not the defendant was at all material times in effective possession of the disputed land?

vi. Any other issue arising out of the pleadings.

In their various addresses filed on behalf of their clients, counsel for the parties submitted that one issue that arises from the pleadings is whether or not the defendant, a foreigner, can acquire a leasehold of a land for a period of ninety-nine years. I agree with counsel for both parties and I will proceed to resolve that issue as an issue arising from the pleadings.

Burden of Proof

The plaintiff who asserts usually has the burden of proving same on a preponderance of

 

probabilities. Preponderance of probabilities, according to section 12(2) of NRCD 323 means:

“… that degree of certainty of belief in the mind of the tribunal of fact or the Court by which it is convinced that the existence of a fact is more probable than its non-existence.”

Where the plaintiff has been able to lead sufficient evidence in support of his case, then it behoves upon the defendant to lead sufficient evidence in rebuttal otherwise the defendant risks being ruled against on that issue or issues. Under Section 11(4) of NRCD 323, a party discharges the burden of producing evidence when the party produces “ … sufficient evidence so that on all the evidence a reasonable mind could conclude that the existence of the fact was more probable than its non-existence” .

In Okudzeto Ablakwa (No. 2) v. Attorney-General & Obetsebi-Lamptey (No. 2) [2012] 2 SCGLR 845, the Supreme Court in dealing with the burden of proof held at page 867 of the report as follows:

“… he who asserts, assumes the onus of proof. The effect of that principle is the same as what has been codified in the Evidence Act, 1975 (NRCD 323), s 17 (a) … .What this rule literally means is that if a person goes to Court to make an allegation, the onus is on him to lead evidence to prove that allegation, unless the allegation is admitted. If he fails to do that, the ruling on that allegation will go against him. Stated more explicitly, a party cannot win a case in Court if the case is based on an allegation which he fails to prove or establish.”

Where the defendant has filed a counterclaim, per the rules of court he becomes a plaintiff with respect to the counterclaim and the same burden that is placed on the plaintiff is also placed on the defendant with respect to the counterclaim. Failure by the defendant to lead sufficient evidence in support of his counterclaim will lead to his counterclaim being dismissed.

The court is also mindful of one of the cardinal duties of a court in evaluating evidence led during trial which is for the court to assess all the evidence on record in order to determine in whose favour the balance of probabilities should lie. Some cases in point are Adwubeng v. Domfeh [1996-97] SCGLR 660 and Takoradi Flour Mills v. Samir Faris [2005-2006] SCGLR 882. A more recent rendition of the principle was made by the Supreme Court in In re Presidential Election Petition (No. 4) Akufo-Addo & Ors. v. Mahama & Ors. [2013] SCGLR (Special Edition) 73, wherethe Supreme Court held at page 322 of the report as follows:

 

“Our understanding of the rules in the Evidence Decree, 1975 on the burden of proof is that in assessing the balance of probabilities, all the evidence, be it that of the plaintiff, or the defendant, must be considered and the party in whose favour the balance tilts is the person whose case is the more probable of the rival versions and is deserving of a favourable verdict.”

In actions for declaration of title to land, the Supreme Court has laid down the nature of the evidence that a party who seeks declaration of title to land has to lead in order to get a ruling in that person’s favour. In the case of Mondial Veneer (Gh.) Ltd. v. Amuah Gyebu XV (2011) SCGLR 466, the Supreme Court speaking through Georgina Wood C.J. noted at page 475 of the report as follows:

“In land litigation … the law requires the person asserting title and on whom the burden of persuasion falls … to prove the root of title, mode of acquisition and various acts of possession exercised over the subject matter of litigation. It is only where the party has succeeded in establishing these facts on a balance of probabilities that the party would be entitled to the claim.” [Emphasis mine].

Similarly in the case of Mrs. Vincentia Mensah (substituted by Beatrice Tsotso Adjetey)

v. Numo Adjei Kwanko II; Civil Appeal No. J4/17/2016 [2017] GHASC 22 (14 th June 2017), the Supreme Court speaking through Anin-Yeboah JSC (as he then was) held as follows:

“In land suits in which title is in issue, the party claiming title must always plead and prove his root of title to enable him succeed.”

Summary of Evidence

The plaintiff personally testified and he called one witness Samuel Ankamah Aryee (PW1) who described himself as a principal member of the Nii Kwao Blenya family of Kwabenya. The plaintiff tendered into evidence the following exhibits:

i. Exhibit A – Lease dated 20th March 1996 between Naa Korkoi Ashalley (alias Boinye Korkoi), head and lawful representative of the Nii Kwao Blenya family of Kwabenya of the one part and Alex Dosu of the other part.

ii. Exhibit B – Arbitration award dated 18th August 1973.

iii. Exhibit C series: Pictures of some construction activities on the land in dispute.

iv. Exhibit D – Extract from the Gold Coast Chiefs’ list 1934 – 1935.

 

v. Exhibit E – Indenture dated 13th November 1970.

vi. Exhibit F – A picture of some buildings on the land in dispute.

vii. Exhibit G – An indenture dated 1976 between Nii Kwao Mensah Ashalley, acting headman/ Wulomo of Kwabenya of the one part and Methodist Church of Ghana, Adabraka Society of the other part.

viii. Exhibit H – A picture of a building belonging to Kwabenya D/A J. S. S.

ix. Exhibit J – A picture showing a tombstone which the plaintiff has described as a royal cemetery.

x. Exhibit K – Extracts from the Gold Coast Chiefs’ list for the years 1913, 1924, 1928-29, 1934-35 and 1941.

xi. Exhibit L – Enstoolment form in the name of Nii Kwao Obuobisa II.

xii. Exhibit M – Local government bulletin dated Friday 8 th January 1993.

xiii. Exhibit N – Arbitration award dated 18th August, 1973.

xiv. Exhibit P – Extract from judgment in the matter Emmanuel Odenkey Abbey and Nii Numo Ashalle II.

xv. Exhibit Q – Copy of some of the proceedings in Re: Land acquisition for a University College with the judgment plan attached.

xvi. Exhibit S – Judgment in Suit No. C1/158/04 (A) between Nana Obolo Ashley v. Nii Kwao Abuobasa.

xvii. Exhibit T – Writ and statement of claim in Suit No. FAL22/11 Nii Anteh Kwakuno

v. Nii Kwao Obuobasa.

xviii. Exhibit U – Order for injunction dated 31st October, 2011 in Suit No. FAL22/11 Nii Anteh Kwakuno v. Nii Kwao Obuobasa.

xix. Exhibit V – Ruling dated 30th August 2012 in Suit No. FAL22/11 Nii Anteh Kwakuno v. Nii Kwao Obuobasa.

xx. Exhibit W – Statement of claim in Suit No. SOL79/15 Numo Okai II, Korle Wulomo v. Moses Tawiah and 4 Others.

xxi. Exhibits X and X1 – Motion for committal for contempt and affidavit in support together with attachments in Suit No. FALM/72/15.

xxii. Exhibit Y – Bench warrant in Suit No. FALM/72/15.

xxiii. Exhibit Z – Notice of payment of court fine for contempt in Suit No. FALM/72/15.

xxiv. Exhibit AA – Notice of undertaking to purge contempt in Suit No. FALM/72/15.

 

The defendant also personally testified and he called one witness Nii Okanfra III (Theophilus Ankamah Aryee), DW1, who described himself as a principal member of the Odai Ntow family and a sub chief of the Odai Ntow family. The defendant tendered into evidence the following exhibits:

i. Exhibit 1 – Lease dated 27th June, 2012 between Odai Ntow family of Teshie of the one part and Godwin Chinedu Onyeanula of the other part.

ii. Exhibit 2 – Provisional Land Title Certificate dated 23 rd August, 2013 with number GA42041 in the name of Godwin Chinedu Onyeanula.

iii. Exhibit 3 – Judgment of Agyepong J. dated 30 th January, 1980 in Suit No. L554/78 Peter Mensah Anteh vrs. Simeon Aryeetey G.S. Okine and Another.

iv. Exhibit 4 series – Photographs showing defendant’s building on the land in dispute.

v. Exhibit 5 – Archival records of proceedings and judgments in the case of Busumpim & Anor. v. Martei & Anor.

vi. Exhibit 6 – Statutory Declaration by Ernest Amah Anteh, Chief of Ashongman.

vii. Exhibit 7 – Judgment of Ocran J. dated 25 th November 2011 in Suit No. BL554/07; Numo George Ankonu Adjin Tettey v. Nii Aryee Annang and 7 Ors.

viii. Exhibit 8 – Archival records of judgment in the case of Peter Mensah Anteh v. Simeon Aryeetey G. S. Okine & Anor.

ix. Exhibit 9 – Judgment of Mills Tetteh J. dated 27 th February 2015 in Suit No. FAL620/13; Augustine Kobla Amenyo v. Samuel Ankamah Aryee & Anor.

I will proceed to resolve the issues as set down for trial and also identified as an issue arising from the pleadings but not necessarily in the order in which they were set down for trial.

Issue 2 – Whether it is the plaintiff’s grantor or the defendant’s grantor that could make a valid grant of the land?

As has already been stated on the discussions on burden of proof, the Supreme Court has held that in an action for declaration of title to land, the claimant must plead and prove his root of title. Both parties are seeking for a declaration of title to the land in dispute and it thus behoves on them to prove their roots of title. In their respective evidence before the court, the plaintiff attempted to prove his root of title through the Nii Kwao Blenya family of Kwabenya while the defendant attempted to prove his root of title through the Odai Ntow family of Teshie. I will proceed to assess the evidence that was led by the parties in proof of their roots of title and then determine which of them is more probable than the other.

 

Analysis of plaintiff’s evidence in proof of his root of title

The plaintiff testified in person and in his evidence, he stated amongst others that he bought the land in dispute from the Nii Kwao Blenya family of Kwabenya in 1996 and he was issued with an indenture and site plan which was admitted in evidence as exhibit A. He further stated that the land in dispute became the Nii Kwao Blenya family lands as a result of an arbitration award made in 1973. He tendered a copy of the arbitration award as exhibit B.

He called one witness Samuel Ankamah Aryee who described himself as a principal member of the Nii Kwao Blenya family of Kwabenya. In his evidence before the court, he stated that the land in dispute is owned by the Nii Kwao Blenya family of Kwabenya and they made a grant to the plaintiff in 1996. He generally testified about the Nii Kwao Blenya family’s acquisition of the land in dispute. I will quote some paragraphs of his witness statement filed on 12 th December 2016 for further analysis. Paragraphs 6 to 10 of the said witness statement provide as follows:

“6. The land in dispute forms part of our family land situated and being at Kwabenya, Accra. The land was granted to Nii Kwabenya family as far back as the 17th century after the last war between the Gas and the Akwamus.

7. The Ga, Gbese and Korle stools granted the land to Nii Kwao Obuobasa I due to the very important role he played in the war between the Gas and the Akwamus.

8. The land was granted to Nii Kwao Obuobasa I near the Gas and Akwapim boundaries in the Northern part of Accra to prevent the Akwapim from entering the Ga lands. That is why Kwabenya is the last village between Accra and the Akwapim Hills.

9. Nii Kwao Obuobasa named the place Kwao Blenya which means ‘Kwao suffered for it’ now corrupted as Kwabenya….

10. In 1970, the Ga, Gbese and Korle stools made a formal grant of Kwabenya lands to our family with site plan and indenture dated 13 th November 1970. See exhibit E.”[Emphasis mine.]

From the above pieces of evidence, Kwabenya lands, including the land in dispute, was supposedly granted to the originator of the Nii Kwao Blenya family, Nii Obuabasa I sometime in the 17th century by the Ga, Gbese and Korle stools. From PW1’s narration, it appears that the Nii Kwao Blenya family had been on the land all this while until the Ga, Gbese and Korle stools thought it wise to make a formal grant of the land to them in the year 1970. A lot of questions go through the mind of the court but the most prominent is why the Ga, Gbese and Korle stools thought it wise to make a formal grant of the land to the Nii Kwao Blenya family in 1970 when they had already given the land to them in the 17 th century.

 

The said 1970 formal grant is in evidence as exhibit E and it is an indenture dated 13 th November 1970. It was made between the Korle Priest and Nii Numo Ashalley II for himself and on behalf of the Nii Kwao Blenya family of Kwabenya. From PW1’s evidence, this is a formal grant evidencing the 17th century grant to the Nii Kwao Blenya family. That being the case, exhibit E should have recited the said 17 th century grant. Curiously however, there is no mention of the said 17th century grant in exhibit E. Exhibit E however recites a customary declaration in favour of the Korle family in 1898 in the following terms:

“Whereas the Korle Priest under and by virtue of a declaration made by his ancestors on the 10th day of September 1898 and witnessed by King Tawiah of Accra, Gold Coast and King Okaijah Field Marshall, Gbese, Accra is the beneficial owner free from all encumbrances of the land hereinafter described and intended to be conveyed.” [Emphasis mine.]

What this means is that as at 1898, per exhibit E, the land supposedly belonged to the Korle family and not to the Nii Kwao Blenya family of Kwabenya. The assertion that the land in dispute was granted to the Nii Kwao Blenya family of Kwabenya in the 17 th century by the Ga, Gbese and Korle stools can therefore not be true. Therein lies the first inconsistency in the plaintiff’s attempt to prove his grantors’ root of title over the land in dispute.

The plaintiff and PW1 also made reference to an arbitration award in 1973 in favour of the Nii Kwao Blenya family and same were admitted in evidence as exhibits B and N. The plaintiff also tendered into evidence his indenture from the Nii Kwao Blenya family as exhibit A. PW1 also tendered into evidence as exhibit G a document evidencing a grant that the Nii Kwao Blenya family had made to the Methodist Church of Ghana, Adabraka Society. Exhibit A is dated 20 th March 1996 and exhibit G is dated 1976 but the specific day and month are not indicated. Both exhibits A and G have recitals and the recitals are generally supposed to recite the root of title of the grantor who is making the grant, in this case the Nii Kwao Blenya family of Kwabenya. In exhibit A, the recital states in part as follows:

“Whereas that in or about the year 10th September 1898 the Onamrokor People (Korle Webii) with the knowledge, consent and concurrence of the principal members of the said family made a customary declaration grant all that piece of land and hereditaments and hereinafter described unto the said Nii Kwao Blenya Royal family then headed by Nii Ashalley absolutely and free from all encumbrance which customary declaration grant of the land and witnessed and attested to be King Tawiah then Ga Mantse Accra, Gold Coast and King Okaidja field Marshall of Gbese, Accra Gold Coast which declaration was considered and accepted by the Appeal No. 62 of 1942 and further confirmed by the West African Court of Appeal in 1955.” [Emphasis mine.]

 

From this recital, the land in dispute was granted to the Nii Kwao Blenya family by a customary grant from the Onamrokor People (Korle Webii) on 10 th September 1898. This is totally contrary to the recital in exhibit E which stated that the said customary declaration of 10 th September 1898 was rather made in favour of the Korle Priest as beneficial owner. The court finds it difficult to reconcile how a declaration which was supposedly made in favour of the Korle Priest on 10th September 1898 will also be the same declaration that was supposedly made in favour of the Nii Kwao Blenya family of Kwabenya. In any case, exhibit E, one of the documents the plaintiff’s grantors are relying on clearly states that the said declaration was in favour of the Korle Priest and not in favour of the Nii Kwao Blenya family of Kwabenya.

Exhibit A is a document that was made in 1996. One would have thought that as a recent document emanating from the Nii Kwao Blenya family, it would have traced the root of title of the Nii Kwao Blenya family in the recitals. There is however no mention of the supposed 17 th century acquisition and there is also no mention of the grant evidenced by exhibit E. Exhibit A is also loudly silent on another aspect of the plaintiff’s grantors’ root of title – the arbitration award evidenced by exhibits B and N. The main recital of the root of title in exhibit A is however inconsistent with the recital in exhibit E and it does not conform to the title the plaintiff’s grantor is attempting to prove in this court. This is another inconsistency in the plaintiff’s attempt to prove his grantors’ root of title.

A careful look at exhibits A and E will also reveal that they do not support PW1s assertion that the land in dispute was granted to his family as far back as the 17 th century. In exhibit E, as at 1898, the land in dispute supposedly belonged to the Korle family. In exhibit A the land was granted to the Nii Kwao Blenya family of Kwabenya in 1898 which is the twilight of the 19 th century and not the 17th century as PW1 seemed to suggest. In any case, I have already identified the inconsistencies in both documents and all these cast doubts on the genuineness of the plaintiff’s grantors’ claim of title over the land in dispute.

It also appears that PW1 was either not familiar with the name(s) of the head of family who supposedly executed the plaintiff’s indenture (exhibit A). The commencement of exhibit A states in part as follows:

“This indenture made the 20th day of March 1996 between Naa Korkoi Ashalley (alias Boinye Korkoi) head and lawful representative of Nii Kwao Blenya family of (Nee We) Kwabenya and Accra …”. [Emphasis mine.]

Thus as at 20th March 1996, the supposed head of the Nii Kwao Blenya family of Kwabenya who executed the plaintiff’s indenture (exhibit A) was Naa Korkoi Ashalley who was also known as Boinye Korkoi. The said alias, Boinye Korkoi, is stated in block capitals on exhibit A. Thus it is presumed that all the family members of the Nii Kwao Blenya family know or should have known the said alias. PW1 who claims to be a principal member of the Nii Kwao Blenya family however denied knowledge of the said name when he was being cross-examined by counsel for

 

the defendant on 21st November 2018 in the following terms:

“Q: You are aware that the plaintiff herein is claiming a parcel of land on the basis that it was granted to him by Boinye Korkoi?

A: My lord I don’t know. However, the plaintiff who is in this case, the land was given to him by our family and we don’t have any Boinye Korkoi in our family.

Q: In fact, per Exhibit A, it is alleged that the grant was made to him on 20 th

March, 1996.

A: My lord I remember the land was granted to him in 1996.

Q: From Exhibit L, as at 1992 Nii Kwao Obuobisa II was alleged to be the chief. A: Yes My lord he was enstooled as a chief in 1992.

Q: So, if Boinye Korkoi purported to make a grant in 1996, that will be invalid.

A: My lord we don’t have any person in our family called Boinye Korkoi. However, our land is not a Stool land, it is family land and the head of family and the elders are the ones entitled to give out the land.” [Emphasis mine.]

The court is therefore at a loss as to whether the said Samuel Ankamah Aryee (PW1) was who he claimed to be in the court or he was a suborn witness who had been engaged to testify on behalf of the plaintiff. For a principal member of the said family to deny knowledge of the alias of his own head of family speaks volumes with respect to his credibility before the court.

I will move on to exhibit G. It is another document evidencing a grant made by the plaintiff’s grantor, the Nii Kwao Blenya family, to a third party. The recital in exhibit G provides in part as follows:

“Whereas the Vendor herein Nii Kwao Mensah Ashalley acting headman/ Wulomo of Kwabenya to alienate, grant, convey or otherwise, under and by virtue of a declaration made by Onamroko people (Korle Webii) to his ancestors on the 10 th day of September 1898 and witnessed by King Tawia of Accra, Gold Coast and King Okaijah, Field Marshall of Gbese, Accra, is the beneficial owner free from all encumbrance of the land hereinafter described and intended to be hereby conveyed.”

The said grant does not make any reference to the supposed acquisition of the land by the Nii Kwao Blenya family in the 17th century, neither does it make any reference to the said 1970 formal grant (exhibit E) nor to the 1973 arbitration award (exhibits B and N). It however

 

attempts to recite the Korle family as the owners of the land by virtue of a declaration made in 1898. This is clearly inconsistent with the recital in exhibit A. The said recital however appears to be consistent with the recital in exhibit E but with a little twist. While in exhibit E the said recital stated clearly that the Korle Priest is the beneficial owner of the land as a result of a declaration made by his ancestors in 1898, in exhibit G, the essence of the declaration is maintained but the beneficial ownership is supposedly vested in Nii Kwao Mensah Ashalley, acting headman/ Wulomo of Kwabenya.

Exhibit E was made in 1970 and exhibit G was made in 1976. It appears that in the 1970s, the Nii Kwao Blenya family recognized the fact that the 1898 declaration was in favour of the Korle family but as the years progressed, come to 1996, they started asserting that the 1898 declaration was in their favour. All these glaring inconsistencies make it difficult for the court to make any positive determination in favour of the Nii Kwao Blenya family over the land in dispute.

PW1 further tendered some pictures in support of the claim of the Nii Kwao Blenya family to the land in dispute. Notable among the pictures are exhibits F, H and J. Exhibits F and H are pictures that are apparently showing buildings of persons who the Nii Kwao Blenya family have made grants to in the past. Exhibit J is a picture that is showing a palace and a graveyard which PW1 described as a royal cemetery. In exhibits F and H, I see pictures of some buildings and in exhibit J, I see some houses and a tombstone but that is all I see. As to how those pictures evidence grants made by the Nii Kwao Blenya family, I cannot tell and I am thus unable to go with PW1’s assertion that those pictures alone evidence grants made by the Nii Kwao Blenya family.

Those buildings could have been constructed anywhere in Accra and even if they are in Kwabenya, there is no positive evidence that the owners of the said buildings got their grants from the Nii Kwao Blenya family. If the said pictures were connected to some specific indentures emanating from the Nii Kwao Blenya family, that would have given some weight to the pictures but the pictures alone without more are not helpful to the plaintiff’s case.

In further proof of the Nii Kwao Blenya family’s title to the land in dispute, PW1 tendered into evidence a judgment of a Circuit Court in Suit No. C1/158/04 – Nana Obolo Ashiley v. Nii Kwao Abuobasa as exhibit S, an injunction order in Suit No. L137/74 as exhibit P, a writ of summons and statement of claim in Suit No. FAL/22/11 – Nii Anteh Kwakuno and Nii Kwao Obuobasa II as exhibit T, an injunction order in Suit No. FAL/22/11 as exhibit U and a writ of summons and statement of claim in Suit No. SOL/79/15 – Numo Okai I, Korle Wulomo v. Moses Tawiah and others as exhibit W. I will deal with exhibit S later in the judgment.

Exhibits P and U are injunction orders in pending suits. These are interlocutory orders and there is no evidence before the court as to the final decisions of the courts in both cases. The

 

suit in exhibit U, being a 2015 case may still be pending and as such the rights as between the parties have not been finally determined. It therefore behoves on the parties to seek to a final determination of that suit for the respective rights of the parties to be finally pronounced upon.

With respect to exhibit P, it is doubtful if that suit is still pending as it is a 1974 suit. Counsel for the plaintiff however did not help the court by apprising the court with the final state of the said case and the court cannot assume that an injunction order that was made on 28 th August 1978, about 42 years ago, is still pending as an interlocutory injunction. The said case may have been finally determined or if not, it may have been struck out and if it was struck out, then the said injunction order is moot unless the suit is duly relisted.

It is interesting to note that PW1 was quick to tell the court about some final decisions in favour of the Nii Kwao Blenya family (an example being exhibit S) and the current state of some of the cases as in exhibit W but he was not that quick to tell the court about the current state of the other decisions but only to state that there is an injunction order pending in the said suits. The said injunction orders, as I have already stated, are only interlocutory in nature.

PW1 also tendered into evidence the decision of the Circuit Court in the case of Nana Obolo Ashiley v. Nii Kwao Obuabasa (exhibit S). In that case, the plaintiff claimed the land as having been leased to her by the Odai Ntow family but the defendant claimed the land in dispute as land belonging to the Nii Kwao Blenya family of Kwabenya. The court, after evaluating the evidence on record held that the land in dispute belonged to the Nii Kwao Blenya family of Kwabenya. It has to be noted that in the judgment of the court, the court, in reviewing the defendant’s case, traced the Nii Kwao Blenya family’s root of title in the following terms at page 2 of the judgment:

“He pleaded that the Kwao Blenya family has long been in undisturbed possession and occupation from the time of its ancestor Kwao Blenya when he settled therein around 1820 and the Kwabenya village was named after him.”

It must be noted that the above quote as evidencing the fact of Nii Kwao Blenya family’s acquisition of the land in dispute is totally different from the story they have put up in this case – first acquisition in the 17th century from the Ga, Gbese and Korle stools, a supposed customary grant in 1898 and a formal grant in 1970. From their story in this case, the land was initially given to Nii Kwao Obuabasa I as a gift in the 17 th century by the Ga, Gbese and Korle stools as a result of his war exploits and he named the place Kwao Blenya now corrupted to Kwabenya. Nowhere in PW1’s account did he mention his ancestor as having been called Kwao Blenya. However in exhibit S which is a judgment delivered on 3 rd November 2008, the Nii Kwao Blenya family pleaded that their ancestor was named Kwao Blenya and he settled on the land in 1820.

 

It is interesting to note that the said 1820 settlement by Kwao Blenya is not part of their story in this case but exhibit S gives them away. It is interesting how land that was granted to them supposedly as a gift in the 17th century could have been the subject of discovery and settlement in 1820 by Kwao Blenya and not Nii Obuabasa I who they claim is their original ancestor. The same land was also in 1898 the subject of a customary declaration by the Korle family. All these inconsistencies cast a very dark shadow on the plaintiff’s case before this court.

PW1 in his evidence also asserted that since the creation of the Kwabenya village, all the headmen or chiefs who have ruled Kwabenya hail from the Nii Kwao Blenya family. In support of this assertion, he tendered into evidence exhibits K, L and M. When under cross examination by counsel for the defendant on 21st November 2018 as to why in 1992, Nii Kwao Obuobisa II was the chief of Kwabenya and he continued as chief in 1996 when the plaintiff’s indenture (exhibit A) was executed but he was not the one who executed the indenture for the plaintiff, PW1 testified and rightly so, that the land in dispute is family land and not stool land. This is the nature of his evidence on this issue:

“Q: From Exhibit L, as at 1992 Nii Kwao Obuobisa II was alleged to be the chief. A: Yes My lord he was enstooled as a chief in 1992.

Q: So, if Boinye Korkoi purported to make a grant in 1996, that will be invalid.

A: My lord we don’t have any person in our family called Boinye Korkoi. However, our land is not a Stool land, it is family land and the head of family and the elders are the ones entitled to give out the land. ”

That being the case, the fact of installation of chiefs for Kwabenya by the Nii Kwao Blenya family does not add anything to the fact of ownership of Kwabenya lands. The ownership of Kwabenya lands is vested in families and any family laying claim to the said lands has to lead credible evidence in support of its ownership of the lands.

It also has to be noted that none of the documents the plaintiff, nor his grantors, are relying on in proof of their title have been registered at the Lands Commission. Exhibit E has two numbers written on it in red ink. One is 32000/29014 and the other is AC 9861/75. There is no evidence to show whether the said numbers are land registry numbers or not. In any case the oath of proof on exhibit E was executed on 27 th October 2014 and the document was stamped on 28th October 2014. The document could not have been registered without the oath of proof having been duly executed and the document stamped. Considering the fact that the oath of proof and the stamping were all done in 2014 the said numbers written in red ink on exhibit E cannot be land registry numbers.

Analysis of defendant’s evidence in proof of his root of title

 

The defendant also testified in person and in his evidence, he stated amongst others that he bought the land in dispute from the Odai Ntow family of Teshie in 2010 but it was documented for him in 2012 (exhibit 1). He has registered his interest and he has been issued with a provisional land title certificate which was admitted in evidence as exhibit 2. He further stated that his grantors have a judgment in their favour over the land in dispute which decision was given in 1980 in the matter Peter Mensah Anteh v. Simeon Aryeetey G. S. Okine and Emmanuel Odenkey Abbey. He tendered a copy of the judgment in evidence as exhibit 3.

He called one witness Nii Okanfra III (known in private life as Theophilus Ankamah Aryee) who described himself as a sub chief of the Odai Ntow family and also a principal member of the family. In his evidence before the court, he stated that the land in dispute is owned by the Odai Ntow family of Teshie and they made a grant to the defendant in 2010 but gave him documents in 2012 after he had finished paying for the land. He tendered into evidence various judgments supposedly evidencing the Odai Ntow family’s title as exhibits 5, 7, 8 and 9 and a statutory declaration also evidencing their title as exhibit 6.

He was extensively cross-examined by counsel for the plaintiff and one thing that clearly came out during the cross-examination was the fact that his claim to be a chief was not right as a result of certain decisions of the relevant judicial committee. He claimed that he had commenced an action to validate his claim to be a chief which was currently pending. That however did not detract from the fact that he claimed to be a principal member of the Odai Ntow family and I will assess his evidence based on his claim as a principal member of the Odai Ntow family.

DW1 traced the Odai Ntow family’s root of title through certain documents including ‘the claims and judgment between 1901-1904 in the matter of Busumpim v. Martei’ (exhibit 5), a statutory declaration made by Ernest Amah Anteh in 1975 (exhibit 6) and the 1980 judgment of Agyepong J. in Peter Mensah Anteh v. Simeon Aryeetey G. S. Okine and Emmanuel

Odenkey Abbey (exhibit 8). It is his case that the said judgments, amongst others have

established the Odai Ntow family’s right over the land in dispute. When he was being cross- examined by counsel for the defendant on 11 th May 2020, this is the nature of his evidence on this issue:

“Q: If you look at the second recital on the first page of the defendant’s document (Exhibit 1), it talks about Ernest Anteh making a Statutory Declaration as the recognized chief of Ashongman. That is correct?

A: Yes My Lord.

Q: The power you got to give the land out to the defendant is from the Statutory Declaration made by Ernest Armah Anteh. …

 

A: My Lord that is so. But the power derived was not only based on the Statutory Declaration. Before the Statutory Declaration was made in 1975, there was a judgment delivered in 1904 in favour of Odai Ntow family which these Nii We people testified as witnesses for the Odai Ntow family. This is contained in the first paragraph of Exhibit 1 which was skipped by counsel and he went to the second paragraph.

Q: This Statutory Declaration by Ernest Armah Anteh was exhibited by you as Exhibit 6.

A: Yes My Lord.”

It is interesting to note that the plaintiff also tendered exhibit 5, together with the judgment plan, into evidence as exhibit Q. PW1 further testified that the said exhibit 5 (exhibit Q) did not and it does not confer any title on the Odai Ntow family but it was rather a boundary dispute between the Gas and the Akwapims.

When counsel for the plaintiff was cross-examining DW1 too, he put it to him that the said judgment did not confer title on the Odai Ntow family, neither did the statutory declaration (exhibit 6) nor the 1980 judgment of Justice Agyepong confer title on the Odai Ntow family. He noted that the 1980 judgment was a suit between members of the Odai Ntow family and it was therefore not binding on the Nii Kwao Blenya family of Kwabenya. It is true that the 1980 judgment was between members of the Odai Ntow family and the final orders of the court as captured on the last page of the judgment were as follows:

“The plaintiff’s action therefore succeeds. I accordingly grant the reliefs as amended, sought by him in his statement of claim, that is

a) A declaration that the defendants should not hold themselves out as principal members of the family to alienate the lands, the subject of the statutory declaration.

b) An injunction restraining them from alienating portions of the said land.”

[Emphasis mine.]

These final orders admittedly did not make mention of any particular lands, be it Ashongman lands or Kwabenya lands. It rather mentioned lands, being the subject matter of a statutory declaration. The said statutory declaration, per page 1 of the judgment, was made in respect of lands situate at “Ashongman, Agbogba, Hatso, Eastern Kwabenya and small surrounding villages in Ashongman, Accra”. On the last but one page and the last page of the judgment, the learned judge noted as follows:

 

“On the totality of the evidence, … I find that the lands covered by the statutory declaration which appear to be the land edged pink in exhibit C are the property of the Odai Ntow family … Having found that the lands, the subject-matter of the statutory declaration, are the property of the Odai Ntow family, I hold that the 1

st and 2nd defendants are not competent, without the plaintiff, to alienate the said

lands. I hold therefore that the statutory declaration is invalid, not having been executed by the 1st and 2nd defendants and the plaintiff.” [Emphasis mine.]

The learned judge therefore clearly held that the lands that were the subject matter of the statutory declaration which included lands in Kwabenya (Eastern Kwabenya) belonged to the Odai Ntow family. Though he set aside the said statutory declaration as not having been properly executed by the accredited members of the Odai Ntow family, the holding that the said lands belonged to the Odai Ntow family still holds good. It is this decision together with the 1904 decision in Busumpim v. Martei, amongst others that the defendant’s grantors have used to prosecute their title in a number of suits before the court and the courts have almost invariably confirmed their title over those lands.

In a recent decision of the Court of Appeal delivered on 28 th July 2020 in Suit No. H1/111/2019 – Nii Ngleshie Addy v. John Armah Mensah & 2 others , the plaintiffs made a claim against the defendants, two of whom were members of the Odai Ntow family and all of whom got their grants from the Odai Ntow family. The defendants in their defence pleaded the 1904 and the 1980 judgments as judgments evidencing the Odai Ntow family’s title over the lands in dispute which included Ashongman and Kwabenya lands. They also pleaded a statutory declaration in favour of the Odai Ntow family which covered Atomic Energy lands and Kwabenya lands. (A careful reading of exhibit 6 tendered into evidence by DW1 will reveal that it is the said statutory declaration that was being referred to in that case.)

The High Court gave judgment in favour of the defendants but limited the size of the land to the judgment plan in the 1904 judgment. On appeal to the Court of Appeal, the Court of Appeal while affirming the judgment of the High Court with respect to the defendant’s title over the land, however set aside the part of the judgment that limited the boundaries of the Odai Ntow family to only the judgment plan of the 1904 judgment. The Court of Appeal invariably affirmed the right of the Odai Ntow family to the lands as depicted in the 1904 and 1980 judgments and the statutory declaration that covered the Kwabenya and Atomic Energy lands (exhibit 6).

Admittedly, the plaintiff’s grantors were not parties to the said suit and the said findings can therefore not be binding on them. There are however pieces of evidence on record which to an extent support the rights of the Odai Ntow family over the lands in dispute. Quite apart from the 1904 and 1980 judgments together with the statutory declaration (exhibit 6) both parties also tendered into evidence some suits and judgments which actually affect or affected either of the parties in this suit’s grantors.

 

One of such judgments is exhibit S, which is a Circuit Court decision in the matter Nana Obolo Ashiley v. Nii Kwao Obuabasa which has already been discussed above in this judgment. In

that case, the court held in favour of the Nii Kwao Blenya family of Kwabenya. Another decision

is the arbitration award of the Ga Mantse dated 18 th August 1973 in favour of the Nii Kwao Blenya family of Kwabenya as against the Odai Ntow family (exhibits B and N).

The defendants have also tendered into evidence a judgment of the High Court delivered on 27

th February 2015 as exhibit 9. The said judgment was in respect of a suit between one Augustine Kobla Amenyo v. Samuel Ankamah Aryee and Nii Kwao Obuobisa II . The said Samuel Ankamah Aryee was PW1 in this suit. Per exhibit L, the said Nii Kwao Obuobisa II is supposed to be the current chief of Kwabenya.

Per exhibit 9, the plaintiff Augustine Kobla Amenyo traces his title to the Odai Ntow family of Teshie and the defendants are from the Nii Kwao Blenya family of Kwabenya. The plaintiff, after acquiring his land from his grantor who also got the land from the Odai Ntow family, took possession and commenced construction only to be disturbed by the defendants. The plaintiff therefore sued the defendants for, inter alia, declaration of title. The High Court found in favour of the plaintiff and held that the Odai Ntow family of Teshie are the owners of the land in dispute and not the Nii Kwao Blenya family of Kwabenya.

Thus there are two judgments and an arbitration award given by our courts in respect of the grantors’ of the parties in this suit. The arbitration award was in favour of the Nii Kwao Blenya family. One of the judgments, a Circuit Court judgment (exhibit S) declared title in favour of the plaintiff’s grantors. I have already identified some issues with the said judgment vis-à-vis the claims of the plaintiff’s grantors in this suit. The other judgment, a High Court judgment (exhibit 9) declared title in favour of the defendant’s grantors (the Odai Ntow family).

The arbitration award was made in 1973 and the judgment in exhibit S was delivered in 2008. The judgment in exhibit 9 was however delivered in 2015. As between the plaintiff’s grantors and the defendant’s grantors, the most recent decision covering their rights over the land in dispute is the High Court decision given on 27 th February 2015 which declared the defendant’s grantors as the rightful owners of the land in dispute. Counsel for the plaintiff in his address asserted that the said judgment is on appeal but until the appeal is determined, the High Court judgment holds sway.

When counsel for the plaintiff was cross-examining DW1 on 11 th May 2020, it came out during the evidence that there is another High Court judgment in favour of the Odai Ntow family and against the Ga, Gbese and Korle stools, the grantors of the Nii Kwao Blenya family of Kwabenya. Counsel for the plaintiff somewhat admitted the existence of the said judgment and put it to the witness that the said judgment was on appeal to which the witness answered in the affirmative. Until the appeal is determined however, the said judgment is valid for all purposes. This is the nature of the exchange between counsel for the plaintiff and DW1 on this issue:

 

“Q: In fact, the Ashongman village where Korle Wulomei are buried belongs to Korle We.

A: That is not correct. Just last year a matter went to court between Ga/Gbese/Korle Stool and Odai Ntow family. Judgment was delivered in favour of Odai Ntow family.

Q: You cannot tell the court the basis of that judgment. That is correct?

A: That is not correct. Ga/Gbese/Korle came together to sue Odai Ntow family claiming that from Ga seaside to Brekuso, those lands belong to them. Six villages which are on Odai Ntow land came to testify in court that those lands belong to Odai Ntow family and it was based on that that the judgment was given. These six villages included Kwabenya and Ashongman. So the court made it clear that Ga/Gbese/Korle do not have lands at Kwabenya and Ashongman.

Q: I am putting it to you that in the Ga/Gbese/Korle and Odai Ntow family matter, no six villages came to testify as you have stated. I was a lawyer for the plaintiff in that matter.

A: My Lord, what I am saying is these six villages had previously testified in court and a judgment delivered. It was based on this that the judgment in Ga/Gbese/Korle and Odai Ntow was delivered.

Q: I am putting it to you that that judgment has been appealed against to the Court of Appeal.

A: My Lord, I know.”

PW1 also tendered into evidence some suits that are currently pending in the courts between the plaintiff’s grantors, the Nii Kwao Blenya family of Kwabenya together with their overlords, the Ga, Gbese and Korle stools and the defendant’s grantors, the Odai Ntow family as exhibits T and W. Exhibit T is s suit instituted by Nii Anteh Kwakuno suing as head and lawful representative of the Odai Ntow family of Teshie against Nii Kwao Obuabasa, head of Nii Kwao Blenya family of Kwabenya. The writ was issued on 21 st October 2010 and there is no evidence that the case has been concluded.

In the said suit, the Odai Ntow family is seeking declaration of title amongst others against the Nii Kwao Blenya family. In exhibit W, Numo Okai suing for himself and on behalf of the Ga, Gbese and Korle stools is seeking to set aside the declaration made by Ernest Armah Anteh in 1975 (exhibit 6) on grounds of fraud.

Irrespective of the above holdings, from exhibits T and W, it appears that the issue of title between the plaintiff’s grantors and the defendant’s grantors is still ripe and I do not intend to

 

make any determination which will affect the said cases that are pending before the courts as the said suits are specifically dealing with the respective titles of the said grantors.

I will however observe that the institution of exhibit W which is challenging the said statutory declaration of the Odai Ntow family (exhibit 6) on grounds of fraud is a tacit admission that per the said declaration (exhibit 6) the defendant’s grantors, the Odai Ntow family, have asserted ownership rights over the land in dispute. Until that declaration is therefore validly set aside, the Odai Ntow family’s rights over the land in dispute will trump the rights of any family or stool over the land in dispute. I must also observe that counsel for the plaintiff in this suit, who is also counsel for the plaintiff in exhibit W, is well aware of the said effect and that is why the action in exhibit W was instituted.

To conclude on this issue, I hold that per the evidence on record and the discussion and analysis above, the defendant’s grantors have a better right to the land in dispute than the plaintiff’s grantors. I must however enter a caveat that this holding is limited to only this suit and the peculiar facts before me and it does not extend to any other suit that is pending or may be pending between the plaintiff’s grantors and the defendant’s grantors or any persons claiming through them.

Issue 1 - Whether the land which is the subject matter of dispute in this suit belongs to the plaintiff or the defendant?

Issue 3 – Whether plaintiff is entitled to the reliefs endorsed on the writ?

With the holding above and my conclusion that as between the plaintiff’s grantor and the defendant’s grantor the defendant’s grantor has a better right over the land in dispute than the plaintiff’s grantor, it therefore follows that since the defendant got a grant from his grantor, the Odai Ntow family, in respect of the land in dispute, then the land in dispute should belong to the defendant. If that is the case, then the plaintiff is not entitled to his reliefs endorsed on the writ of summons and I so hold.

Counsel for the plaintiff has however raised issues with respect to the defendant’s indenture. The first is that exhibit 1 did not convey any interest to the defendant as there are no words of conveyance. Secondly, exhibit 1 purported to convey a ninety-nine year lease to the defendant who is a foreigner and this is void as the 1992 Constitution of Ghana prohibits such conveyances. I will take the said objections one after the other.

Absence of words of conveyance invalidating exhibit 1?

 

Exhibit 1 is a lease between the Odai Ntow family and the defendant. The parties are clearly stated in the lease. There are recitals and covenants in the lease. It has been duly executed by the parties and there is an oath of proof which has been duly executed. Curiously missing from exhibit 1 however is the consideration and receipt clause which should have contained the words of conveyance. Without the said words of conveyance, the actual term that was granted to the defendant by his grantors will not be known and this generally would have affected any interest that the Odai Ntow family attempted to convey to the defendant.

The Odai Ntow family however came to testify on behalf of the defendant and they asserted that they gave the defendant a ninety-nine year lease over the land in dispute. This assertion is not in a vacuum as it has support in clause 7 (b) of exhibit 1 where the said ninety-nine year lease was mentioned. The said clause provided as follows:

“At the expiration of the term of 99 years hereby granted upon application in writing the lessee for such renewal the lessor shall have the option and discretion to renew the lease for a further term not exceeding (45) years certain and upon terms and covenants and conditions to be agreed upon between the lessor and lessee.” [Emphasis mine.]

Thus, though there are no specific words of conveyance in exhibit 1, the clause quoted above makes it very clear that the Odai Ntow family granted a ninety-nine year lease of the land in dispute to the defendant. The Odai Ntow family have not complained about the grant but they have however confirmed it. The said grant is evidenced in writing and by the evidence of DW1, exhibit 1 was only issued after the defendant had duly paid for the land.

Thus as between the defendant and his grantors, the defendant has fulfilled all obligations for the grant of a lease and they duly executed exhibit 1 in his favour. Even if exhibit 1 cannot be said to be a lease properly so called because of the lack of words of conveyance, it can be deemed to be an agreement for a lease as it was held in the English case of Walsh v. Lonsdale (1882) 21 Ch. D 9 that ‘an agreement for a lease is as good as a lease’.

To all intents and purposes, the parties to exhibit 1 intended to enter into a ninety-nine year lease. I will invoke two equitable maxims in support of the lease depicted by exhibit 1. The first maxim I will rely on is that ‘equity looks to substance and not to form’. From exhibit 1, apart from the lack of words of conveyance, everything shows that the parties intended to, and actually entered into a ninety-nine year lease. The substance of the relationship between the parties to exhibit 1 is so clear that it will be absurd to invalidate it for lack of words of conveyance. This then takes me to the second maxim which is, ‘equity sees as done that which ought to be done’. As between the parties to exhibit 1, they intended to enter into a ninety-nine year lease and the court will therefore give effect to the said lease as ‘equity sees as done that which ought to be done’.

 

I will conclude my discussions on this issue by referring to the case of P. Y. Attah & Sons Ltd.

v. Kingsman Enterprises Ltd. [2007-2008] SCGLR 946, SC . In that case, the parties entered into a sublease where the Sub-Lessor transferred the unexpired term of his interest in a lease to the Sub-Lessee. In the eyes of the law, the transfer of a lessee’s unexpired term constitutes an assignment and not a sublease and both the High Court and the Court of Appeal held that it was an assignment and not a sublease.

The Supreme Court however held that though in essence the relationship between the parties per their agreement was an assignment, the parties had however conducted themselves as Sub- Lessor and Sub-Lessee and the Supreme Court therefore gave effect to their conduct and held that the agreement was a sublease though in form it was an assignment. The Supreme Court therefore gave effect more to the substance than to the form of the agreement. This then takes me to the next sub issue which is whether the defendant as a foreigner can acquire a leasehold for ninety-nine years.

The effect of a foreigner being granted a ninety-nine year lease.

Counsel for the plaintiff has argued that per the 1992 Constitution of Ghana, foreigners are barred from acquiring leasehold interest in any property in Ghana that exceeds a term of fifty years. The maximum leasehold interest a foreigner can acquire is fifty years. As such any purported grant of a leasehold interest to a foreigner that exceeds fifty years is null and void. Thus, with the confirmation that the Odai Ntow family granted a ninety-nine year lease to the defendant, it was a void transaction and the defendant therefore did not acquire any interest in the land in dispute. He therefore could not have acquired a valid land title certificate in respect of a non-existing interest.

The relevant provision of the 1992 Constitution of Ghana that deals with this issue is Article 266 (4) and it provides as follows:

“No interest in, or right over any land in Ghana shall be created which vests in a person who is not a citizen of Ghana a leasehold for a term of more than fifty years at any one time.”

The said provision actually states that foreigners can only acquire a maximum leasehold interest of fifty years in any land in Ghana and it proscribes foreigners from acquiring a leasehold interest which exceeds the said fifty years. It went on further to convert all existing freeholds and leaseholds that were being held by foreigners which exceeded the said maximum term to a term of fifty years. As a result of this provision, quite a number of lawyers, and counsel for the plaintiff is no exception, have argued that any grant of a leasehold interest to a

 

foreigner that exceeds fifty years will be a void grant.

In Empire Builders Limited v. Top Kings Enterprise Ltd. and 4 others, Civil Appeal No.

H1/137/2005 (CA) 18th December 2014, in their written submission before the Court of Appeal, counsel for the defendant/ respondent made this argument before the Court of Appeal and invited the Court of Appeal to invalidate a lease that had been given to the plaintiff, a foreign owned company and for that matter a foreigner, because it purported to make a grant of a leasehold interest to the plaintiff which was more than the fifty years as stipulated in the Constitution. The Court of Appeal, after having traced the history of the said constitutional provision, refused the invitation and rather held that any transaction that purports to grant a lease which exceeds fifty years to a foreigner is not void but it is rather automatically converted into a fifty year lease by operation of law. The Court of Appeal noted as follows:

“The true position of the law was that the various constitutions, section 1 of the Lands Commission Decree NRCD 24 of 1972 and section 6 of PNDCL 42 continued the prohibition against foreigners holding more than 50 years leases in Ghana. Section 46(5) of the National Redemption Council (Establishment) Proclamation PNDCL 42 reduced the interest of foreigners holding leases beyond fifty years to fifty. Thus while Baron Ernesto Tariconi, a naturalised Ghanaian could hold a ninety-nine year lease, the interest he transferred to the plaintiff company was only fifty years commencing from

22nd day of August 1969. The lease of the land of 50 years to the plaintiff

company is by operation of law and not by assignment. The learned trial judge’s holding at page 8 of the judgment that ‘the plaintiff was incapable of granting that which it had no legal capacity to have or to hold’ we think was an over statement. The trial judge should have considered the plaintiff/appellants leasehold interest to be 50 years and not none at all. We agree with the submission of counsel for the plaintiff/appellant and uphold this ground of appeal.” [Emphasis mine.]

In applying this decision to the facts of this case, the defendant was granted a ninety-nine year lease by the Odai Ntow family. It is clear from the pleadings and the evidence on record that the defendant is a Nigerian and not a Ghanaian, therefore a foreigner. Per article 266 (4) of the 1992 Constitution of Ghana, he could not have been validly granted a ninety-nine year lease because he is a foreigner. Per the decision of the Court of Appeal in Empire Builders Ltd. v. Top Kings Enterprise Ltd. however, the said grant is automatically converted into a fifty year lease. It is apparent that the Lands Commission understood the effects of the law that is why when the defendant applied for a land title certificate, they converted the ninety-nine year lease into a fifty year lease and granted him a Provisional Land Certificate covering fifty years.

On the basis of the analysis above, I therefore hold that though the Odai Ntow family purported to grant a ninety-nine year lease to the defendant, the said grant was automatically converted into a fifty year lease by operation of law and as between the plaintiff and the defendant, the defendant has a better right to the land in dispute and he is therefore declared the owner of a fifty year leasehold interest in the land in dispute.

 

Issue 5 – Whether or not the defendant was at all material times in effective possession of the disputed land?

The defendant has asserted that he is in possession of the land and he has constructed a building where he currently lives with his family. The fact of the defendant having a building on the land is not in dispute. The plaintiff has however asserted that the defendant constructed the building during the pendency of the action. The plaintiff has stated that when he acquired the land from the Nii Kwao Blenya family in 1996, he constructed a wall around the whole land. In support of this assertion, the plaintiff tendered into evidence exhibit C series.

The said exhibits are three pictures two of which were taken on 22 nd July 2014 and the other was taken on 16th December 2014. The said pictures therefore show the state of the land as at the said dates. The writ in this suit was issued on 30 th July 2014, eight days after the first two pictures were taken. Thus as at the date this action was instituted, the state of the land in dispute is as depicted in exhibits C and C1. Exhibit C shows a picture of some chippings on the land, an uncompleted building, and some trees and with the aid of a magnifying glass, I was able to identify a wall behind the uncompleted building. Exhibit C however does not show the frontage of the land and it is therefore difficult to determine whether there was really a wall around the whole land as the plaintiff asserted.

This same pattern is repeated in exhibits C1 and C2. The picture in exhibit C1 is similar to the picture in exhibit C just that the picture in exhibit C1 was taken at a closer range. On exhibit C1 too, there is a man who appears to be walking from the uncompleted building towards the person taking the picture. Upon a closer look at the said picture with the aid of a magnifying glass, the said man in the picture resembles the defendant in this suit. Exhibit C2 also shows two people undertaking some excavation works on the land and behind them is a wall. The said uncompleted building in exhibits C and C1 resembles the beginning stage of the defendant’s building he has constructed on the land.

One thing that the court is not certain about is that if the plaintiff claims that he constructed a wall around the whole land, why did the plaintiff not provide pictures showing the said wall around the whole land but only provided pictures showing an uncompleted building with a wall behind? The said wall that is depicted in exhibit C series however appear to be walls that had already been constructed by the owners of the houses behind the land in dispute. It was therefore easier for the plaintiff to get pictures of the said already existing walls to show to the court but he was not able to show pictures of the supposed walls covering the frontage of the property because it is probable that they were not in existence at the time the pictures were taken.

 

Be that as it may, per exhibit C series, there is an uncompleted building which resembles to a large extent the beginning stages of the defendant’s building on the land in dispute. This is more probable than not because it is not part of the plaintiff’s case before the court that he constructed a building on the land in dispute but he has exhibited a picture which shows an uncompleted building as at the time the picture was taken. Since the parties are all agreed that the defendant has constructed a building on the land in dispute, it is more probable than not that the said building shown in exhibit C series is the defendant’s building on the land in dispute. This is further confirmed by the picture of the man in exhibit C1 who resembles the defendant in this suit.

The court therefore holds that as at the time the pictures were taken on 22 nd July 2014, the state of the land revealed that the defendant had commenced his construction activities on the land in dispute. Thus as at the time the plaintiff instituted this action, the defendant was in possession of the land in dispute. This is what necessitated the plaintiff to apply for an injunction which was granted by the court differently constituted on 2 nd December 2014. In paragraph 8 of the affidavit in support of the injunction application filed on 30 th July 2014 the plaintiff averred as follows:

“The defendant has however proved adamant and is still developing the plaintiff’s land. I attach some photographs as exhibits 2, 3, 4, 5 and 6.”

The said exhibits 2, 3, 4, 5 and 6 attached to affidavit in support of the injunction application are all pictures taken on 22nd July 2014 at 8.12 am and 8.13 am. A careful look at the said pictures will reveal that the said exhibit 2 attached to the affidavit in support of the injunction application is the same as exhibit C tendered in evidence by the plaintiff to depict the plaintiff’s supposed wall. Exhibit 5 is also the same as exhibit C1 tendered in evidence by the plaintiff.

Thus while on 30th July 2014, the plaintiff swore to an affidavit on oath stating that exhibit 2 (exhibit C) and exhibit 5 (exhibit C1) showed the state of the defendant’s activities on the land as at 30th July 2014, about two and half years down the line, in another statement sworn to on oath being the plaintiff’s witness statement filed on 12 th December 2016, he used the same pictures to apparently show the existence of his wall on the land.

These are two contradictory statements made by the plaintiff which cast a shadow on his evidence with respect to his possession of the land in dispute. The plaintiff is respectfully referred to the decision of the Supreme Court in In re Okine (Decd); Dodoo v. Okine [2003- 2004] SCGLR 582 @ 629 where the court frowned upon such behaviour and held, inter alia, that “the degree of credibility to be accorded to [such a witness] must be negligible, once it is demonstrated that he has contradicted himself on the same issue” .

 

From the analysis above and the evidence on record, however, it is more probable than not that the pictures depicted by exhibit C series actually show the state of the defendant’s building on the land as at 22nd July 2014 but does not depict evidence of the plaintiff’s possession of the land in dispute. It is on record that the defendant was found to have defied the injunction order by continuing with his construction to the state as depicted in exhibit 4 series. This eventually led to the defendant being cited and convicted for contempt by the court differently constituted as depicted in exhibits X, Y and Z. The evidence on record however reveals that as between the plaintiff and the defendant, the defendant was at all material times in effective possession of the disputed land and I so hold.

Issue 4 – Whether the defendant is entitled to his counterclaim?

From the discussions, analysis, conclusions and holdings above, the defendant has been able to prove his counterclaim on a balance of probabilities. I therefore enter judgment in favour of the defendant in respect of his counterclaim and I make these final orders:

i. The defendant is declared as the valid holder of a fifty (50) year lease from the Odai Ntow family in respect of all that piece or parcel of land lying and being at Kwabenya in Accra, bounded on the North by a proposed road measuring 89.1 feet more or less on the East by Lessor’s land measuring 179.3 feet more or less on the South by Lessor’s land measuring 90.3 feet more or less on the West by Lessor’s land measuring 180.2 feet more or less, containing an approximate area of 0.36 acre or 0.15 hectare.

ii. The plaintiff, his agents, servants, workmen, assigns or any other person or entity claiming through him or by him are perpetually restrained from interfering with the title, ownership, possession and occupation of the defendant in respect of the land described in (i) above.

iii. Ordinarily, I would have awarded damages in favour of the defendant but considering the fact that the defendant defied an injunction order of the court and was convicted for contempt, I will not make any order with respect to damages.

iv. I however award cost of GH¢20,000.00 in favour of the defendant against the plaintiff.

v. The plaintiff’s claim fails and the same is dismissed.