A. D. Build Limited v Mrs. Gifty Yano & Lincoln Maya Limited

Per Amended Writ of Summons the Plaintiff claims against the 1st and 2nd Defendants as follows:

1. A declaration that Plaintiff is the owner in possession of all that parcel of land situate, lying and being at Oyarifa-Accra and containing an approximate area of 0.40 Acre or 0.16 Hectare more or less bounded on the North-East by Mrs. Gifty Yano or 1st Defendant’s Property measuring 167.8 feet more or less, on the South-East by Proposed Road measuring 170.7 feet more or less, on the South-West by Lincoln Maya Limited or 2nd Defendant’s Property measuring 38.5 and 52.6 feet more or less, on the North-West by Lincoln Maya Limited or 2nd Defendant’s Property measuring 49.5 feet more or less, on the North by Lincoln Maya Limited or 2nd Defendant’s Property measuring 80.2 feet more or less.

2. A declaration that the 1st Defendant alienated the land vividly described in

relief ‘1’ supra to the Plaintiff.

3. An order directing 1st Defendant to prepare and execute a Deed of Conveyance in favour of the Plaintiff Company.

4. A declaration that the destruction of Plaintiff Company property on the land in dispute by the 2nd Defendant is unlawful.

5. General damages for trespass against 2nd Defendant.

6. An order for perpetual injunction restraining the 2nd Defendant, its agents, assigns, privies, servants, workmen and all people claiming through it from

 

interfering and dealing in any manner with Plaintiff Company’s land the

subject matter of this suit.

By her Amended Statement of Defence and Counterclaim, the 1st Defendant on 23/08/2021 Counterclaims against the Plaintiff as follows:

“COUNTERCLAIM”

1st Defendant repeats all the averments in her defence to the Plaintiff’s claim and counterclaims

as follows:

(a) Declaration that 1st Defendant is the owner of all that land described in

Schedules “A” and “B” in this defence and counterclaim.

(b) Declaration that the land sold to the Plaintiff by the 1st Defendant measuring

0.32 acres bounded on the North-East by 1st Defendant’s land measuring

100.2 feet more or less, on the South-East by the 1st Defendant’s land measuring 140 feet more or less on the South-West by 1st Defendant’s land measuring 100.2 feet more or less and on the North-West by a proposed road measuring 140 feet more or less, was owned by the 1st Defendant and same properly granted to the Plaintiff.

(c) Declaration that the land the subject matter of this action described in relief

(1) of the Plaintiff’s Statement of Claim is owned by the 2nd Defendant.

(d) A further declaration that the subject land sold to the Plaintiff as described in reliefs (b) of the counterclaim is not owned by Anum Kodua.

 

(e) An order of perpetual injunction to restrain the Plaintiff, his alleged grantors and agents from interfering in the 2nd Defendant’s quiet enjoyment of the land the subject matter of this action.

(f) An order of the court directed at the Plaintiff to remove all his block moulding equipment and machines from the subject land and give vacant possession of same to the 2nd Defendant.

(g) Damages for harassment.”

3. Likewise, the 2nd Defendant filed its Statement of Defence on 12/7/2018 and Counterclaims against the Plaintiff as follows:

COUNTERCLAIM

2nd Defendant repeats paragraphs 1 to 29 of the Statement of Defence and Counterclaim against the Plaintiff as follows:

(h) A declaration of title to ALL THAT PIECE OR PARCEL OF LAND situate lying and being at OYARIFA in the LANMA DISTRICT and bounded on the NORTH by Lessor’s Land measuring 72.3 feet more or less on the EAST by Lessor’s Land measuring 28.9 feet more or less on the NORTH by Lessor’s Land measuring 16.5 feet more or less on the EAST by Lessor’s Land measuring 91.1 feet more or less and on the SOUTH by Proposed Road measuring 169.6 feet more or less on the WEST by Lessor’s Land measuring

46.0 feet more or less and on the NORTH WEST by Lessor’s Land measuring

15.8 feet and 104.0 feet respectively more or less containing an approximate Area of 0.379 Acre or 0.153 Hectares more or less which said piece of land is particularly delineated on a Site Plan and thereon shown edged Pink.

 

(i) General damages for trespass.

(j) An order of perpetual injunction restraining Plaintiff, its agents, assigns, privies howsoever called from having any dealings with the parcel of land described herein.

ISSUES SET DOWN FOR DETERMINATION

1. Whether or not plaintiff is in possession of the land the subject matter of dispute.

2. Whether or not the 1st defendant alienated two plots of land to the plaintiff as a replacement of the land earlier sold to plaintiff Company.

3. Whether or not the 1st defendant had long divested her interest in the land to the Plaintiff and could not purport to divest same to the 2nd Defendant.

4. Whether or not Plaintiff’s acts of ownership by establishing a block factory on

the land in dispute served as constructive notice to the 2nd Defendant.

5. Whether or not Plaintiff’s acquisition of the land in dispute was prior in time to

that of 2nd Defendant.

The 2nd defendant filed additional issues.

Whether or not the Agbawe Owusu We family of Oyarifa in the Greater Accra Region of the Republic of Ghana made a valid grant of the disputed land to the 2nd Defendant?

BURDEN AND STANDARD OF PROOF

Under and by virtue of Section 11(1) of the Evidence-Act 1975 NRCD 323, the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid a ruling against him on the issue. Section 11(4) and 12 of the Evidence Act (supra) provide that, the standard of proof in matters such as the one before this court shall be by the preponderance of the probabilities.

0.1. Section 11(4) and 12(1) and (2) states that:

“11(4) In other circumstances the burden of producing evidence requires

a party to produce 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.

12(1) Except as otherwise provided by law, the burden of persuasion requires proof by a preponderance of probabilities.

(2) “Preponderance of the probabilities” 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”.

0.2. As held by the Court of Appeal in ZABRAMA V SEGBEDZI [1991] 2 GLR at 221;

“… a person who makes an averment or assertion, which is denied by his opponent, has the burden to establish that his averment or assertion is true. And, he does not discharge this burden unless he leads admissible and credible evidence from which the fact or facts he asserts can properly and safely be inferred. The nature of each averment or assertion determines the degree and nature of that burden”.

In In Re Ashalley Botwe Lands; Adjetey Agbosu and others vrs Kotey and Others [2003-2004] SCGLR 420, the Supreme Court held inter alia at page 425 that;

“(5) … the burden of producing evidence in any given case was not fixed, but shifted from party to party at various stages of the trial, depending on the issue(s) asserted and/or denied”.

It was further held as per Brobbery JSC at page 425 that;

“… if the court has to make a determination of a fact or of an issue and that determination depends on evaluation of facts and evidence, the defendant must realize that the determination cannot be made on nothing…. The logical sequel to this is that if he leads no such facts or evidence, the court will be left with no

 

choice but to evaluate the entire case on the basis of the evidence before the

court …”.

It is trite that, in civil cases, the burden of proof is on the plaintiff generally. But where the defendant files a counterclaim, the defendant also has the burden of proving his counterclaim. The principle of law is well settled that Counterclaim is a different action. In the case of SASU BAMFO v. SINTIM (2012) 1 SCGLR 136 at 157 the Supreme Court speaking with one voice through Rose Owusu J.S.C. held:

“A counterclaim is a different action in which the defendant, as a counterclaimant, is the plaintiff and the plaintiff in the action becomes a defendant. In the instant case, where both parties were seeking declaration of title, recovery of possession and perpetual injunction in respect of the disputed piece of land, each of them bore the burden of proof and persuasion to prove conclusively, on a balance of probabilities, that he was entitled to the reliefs claimed. This Section II (1) of the Evidence Act, 1975 (NRCD 323), enjoins the Defendant in its capacity as plaintiff in the counterclaim, to introduce sufficient evidence to avoid a ruling on the issue against him.”

Since the 1st and 2nd Defendants respectively filed Counterclaim against the Plaintiff, they assume the legal burden of proof on the preponderance of probabilities. See also MALM v. LUTTERODT [1963] 1 GLR. 1 S.C. particularly part (1) of holding 1 where the Supreme Court held:

“The defendant in an action for declaration of title assumes a legal burden of proof only when he counterclaims for a declaration of title in his favour.”

PRELIMINARY MATTERS

An order for filing closing submissions was given on Monday 24th day of February, 2025. As at today, both lawyers for the defendants failed to do so. Learned counsel for

 

the Plaintiff complied with the court order. It is however the law that filing of address at the conclusion of a case is not mandatory.

Please see the case: Amerley V Otinkorang & Anor [1965] GLR 656 SC.

THE PLAINTIFF’S CASE

The 1st Defendant was introduced to the Plaintiff Company by one Mr. Alfred Appiah Bempong simply known as Mr. Bempong as the owner of two plots of land which she intended to sell.

In the presence of Mr. Bempong, the 1st Defendant allegedly, made a promise to the Plaintiff’s Managing Director (Ernest Kwame Ansah-Abiesi) PW1 that if the said two plots happened to belong to another person, then she shall replace same with another two plots of land situate at Oyarifa.

The 1st Defendant and the Plaintiff’s Managing Director/PW1 duly negotiated and agreed on a purchase price of GH¢120,000.00. The Plaintiff’s Managing Director/PW1 paid the sum of GH¢120,000.00 to the 1st Defendant in the presence of Mr. Alfred Appiah Bempong/PW2 and the 1st Defendant issued a receipt acknowledging the payment of the said sum (GH¢120,000.00). The said receipt was tendered in evidence by the Plaintiff’s Managing Director/PW1 as Exhibit A. The Plaintiff per Exhibit A which is a receipt issued by 1st Defendant in respect of land measuring 140 by 100 feet situate at Oyarifa in the Greater Accra Region. The receipt is dated 21st July, 2015. Exhibit A consist of a Cheque of GH¢120,000.00 as well as the very receipt issued by the 1st Defendant.

The 1st Defendant also executed a Deed of Conveyance with regard to the said two plots of land in favour of the Plaintiff and same was tendered in evidence by the Plaintiff as Exhibit B. When the Plaintiff’s said alter ego, Mr. Bempong (PW2) went to the land to take possession of the said two plots of land, he was fiercely resisted by Nii Anum Kodia also known as Nii Anum Kodia Glavor who asserted that the said two plots of land which was alienated by the 1st Defendant is his legitimate property and he drove the Plaintiff’s away. Due to Nii Anum Kodia’s assertion that the said two

 

plots of land belongs to him, the Plaintiff’s Managing Director/PW1 had no choice but to use the very Site Plan in Exhibit B (Deed of Conveyance prepared by the 1st Defendant in favour of the Plaintiff) to conduct a search at Lands Commission.

As submitted by learned counsel for the plaintiff, the fact that the Plaintiff’s said Managing Director used the said Site Plan in Exhibit B to conduct a search, is patently evident in the said Site Plan in Exhibit B. A cursory look at the dates in the Site Plan in Exhibit B shows that it was signed by Surveyor I. K. Awuku-Asante on 24-05-2015. Also, the Regional Director of Surveys signed the said Site Plan on 27-05-2015. Likewise, the Site Plan that the Plaintiff per its Managing Director/PW1, used to conduct a Search was signed by Surveyor I. K. Awuku Asante on 24-05-2015, and also the Regional Director of Surveys signed same on 27-05-2015. The report of the search conducted by PW1 was tendered in evidence as Exhibit C. NII Anum Kodia(PW3) was the one who claimed the land belongs to him. According to PW1, the search report exhibit C revealed that the land belongs to Nii Anum Kordia (PW4). According to Plaintiff, PW4 executed a deed of assignment in his favour. This deed of assignment was tendered and marked exhibit D. This deed of assignment was also registered, tendered and marked exhibit E. PW1 testified further that, he informed 1st Defendant he was confronted on the land. That 1st Defendant, assured him that she would replace the said two plots of land with another two plots of land also at Oyarifa. That 1st Defendant gave him (PW1) another two plots of land and he took possession of the two plots of land by establishing a block manufacturing factory on the land. Pictures of the said block factory is admitted and marked as exhibit F. The 1st defendant did not prepare any document on this land for the plaintiff.

DEFENDANTS CASE

1st Defendant testified that, she is the owner of all that piece or parcel land described

in schedules ‘A’ & ‘B’ of her statement of defence.

That she was granted a parcel of land described in Schedule “A” of her statement of defence by Nii Adjei Quaye, head of the La Agbawe family of Oyarifa, with the consent

 

and concurrence of the then principal members of the family, namely Nii Okpoti Nkpa Quarshie and Okpoti Larsey. An indenture evidencing the grant of the land was executed in her favour on the 28th day of November, 1978, a copy of which is marked Exhibit 1. She further testified that she was granted another parcel of land described in Schedule “B” of her Statement of Defence and Counterclaim by the said Nii Adjei Quaye, head of the La Agbawe family, with the consent and concurrence of Nii Okpoti Larsey and all principal members of the family whose consent was required for the valid alienation of La Agbawe family land. An indenture evidencing this second grant was executed on the 7th day of February, 1979, a copy of which is attached as Exhibit

2. That after following these grants, she took possession of the lands and exercised overt rights over them by building a dwarf wall around the said land and constructing a residential facility on part of it, while operating a poultry farm called GIFCO Farms Ltd on other portions of the land.

The 1st Defendant further testified that she paid valuable consideration for the land in 1978 and 1979, and that the payments were duly receipted for by her grantor. Copies of the said receipts are attached as Exhibit 3 series. It was her assertion that she submitted the documents covering the lands she had acquired to the Lands Commission, which, after the necessary administrative procedures and without any objection whatsoever from any person, plotted the land described in Schedule “A” of her Statement of Defence as No. P7013 and the land described in Schedule “B” as No. P5292. The 1st Defendant maintained that the documents relating to her ownership of the land were subsequently registered at the Deeds Registry in accordance with the Land Registration Act, 1962 (Act 122), under registration numbers 375/1984 and 4266/1981 respectively. She further asserted that her possession of the land, its plotting in the records of the Lands Commission, and the subsequent registration at the Deeds Registry vested in her an indefeasible interest in the property. According to the 1st Defendant, the Plaintiff Company was introduced to her by her previous grantees, after which she sold two plots of land belonging to her to the Plaintiff Company at a purchase price of GH¢120,000. The sale, she indicated, is evidenced by an indenture

 

dated the 15th day of July, 2016. She stated further that when the Plaintiff Company approached her to purchase the said two plots, she encouraged the Plaintiff Company to conduct a search and undertake due diligence to satisfy itself of her ownership of the land. That 1st Defendant added that, following this advice, the Plaintiff Company informed her that it had conducted a search at PVMLD of the Lands Commission, which confirmed that the land was indeed owned by her. 1st Defendant testified further that she personally caused a search to be conducted on the 15th day of July, 2015, prior to leasing the property to the Plaintiff, and that the search confirmed her ownership of the land. The search report is marked and attached as Exhibit 4. She further maintained that no one confronted the Plaintiff when it took possession of the land she had sold to it, and that if the Plaintiff was confronted upon taking possession, no such information was ever communicated to her. It was her testimony that she subsequently became aware of a connivance between the Plaintiff and one Nii Anum Kodua, allegedly aimed at defrauding her in an effort to take over her land, which she believed explained the Plaintiff’s claim of being confronted by the said Nii Anum Kodua when attempting to take possession. 1st Defendant testified emphatically that, at all material times, she was the owner of a vast stretch of land, including the land which forms the subject matter of this action, and which she sold to the Plaintiff as of right. She further contended that the Plaintiff’s allegation of confrontation was a product of its connivance with the said Nii Anum Kodua to defraud her, and that if this were not the case, the Plaintiff would have informed her before purporting to renegotiate a purchase price with Nii Anum Kodua. 1st Defendant asserted that she had always maintained her ownership of the land and had actively warded off encroachers and trespassers, actions undertaken with the knowledge of the Plaintiff Company, which at one point even confirmed to her that, in view of the overwhelming documentation proving her title, it was prepared to assist her in warding off the encroachers. She explained that she permitted the Plaintiff Company to take temporary possession of the land which forms the subject matter of this action. During these interactions, the Plaintiff Company’s representative became well acquainted with her and even promised to assist her in recovering possession of

 

her encroached lands. That 1st Defendant stated that, as a result of the relationship that had developed between her and the Plaintiff Company’s representative, one Ernest Kwame Ansah Abiesi, he confided in her about many of the company’s challenges. She recounted that sometime in 2014, the said representative informed her of a problem concerning the land on which the Plaintiff Company operated its block factory at East Legon, explaining that a rival claimant to that land had caused some demolitions and vandalized the company’s equipment. She further indicated that a few weeks after informing her of the difficulties at East Legon, the Plaintiff Company’s representative advised her that the company had received orders to supply blocks and pleaded with her to allow them some space on her land to temporarily install one of its block- moulding machines in order to fulfil the order. According to the 1st Defendant, and owing to her cordial relationship with the Plaintiff Company’s representative, she permitted the Plaintiff Company to install only one machine on the land temporarily for the purpose of moulding blocks to meet the said orders. It was her contention that the Plaintiff Company’s presence on the land forming the subject matter of this suit was strictly as licensees, and that at no point did she give the land to the Plaintiff Company as a replacement for any other land or for any other purpose whatsoever. She further explained that while she was dealing with the Plaintiff regarding the subject land, one Rev. Christopher Okpoti Sowah and certain members of the Agbawe Quarter, who claimed to be the allodial owners of the land, began indiscriminately allocating portions of her land to unknown third parties. Consequently, on 7th June 2016, the 1st Defendant instituted an action against Rev. Christopher Okpoti Sowah, to the knowledge of all members of the Agbawe family, seeking a declaration of title to the land. That 1st Defendant asserted that her ownership of the vast stretch of land, including the subject land granted to her by the La Agbawe Family of Oyarifa—then headed by Nii Adjei Quaye with his principal elders, Nii Okpoti Nkpa Quarshie and Okpoti Larsey—had received judicial confirmation from the High Court in the case of Gifty Yano v. Rev. Christopher Okpoti Sowah, Suit No. LD/0847/2016. That matter, she stated, proceeded to a full trial, and on 12th February, 2020 judgment was entered

 

in her favour, declaring her the absolute owner of the land. A copy of the judgment is attached as Exhibit 4A. Following from the preceding paragraph, the 1st Defendant stated that she had proceeded to execution and had been placed in absolute possession of the said land by the Deputy Sheriff of the High Court. She further asserted that, as the owner of the subject land, she leased it to the 2nd Defendant, who is now the owner of the land that forms the subject matter of this action. The lease agreement evidencing this transaction is attached as Exhibit 5. That 1st Defendant maintained that she had not received any payment whatsoever from the Plaintiff Company in respect of the land in dispute and contended that the land she sold to the Plaintiff Company is the one on which the Plaintiff constructed a storey building, which she emphasized is entirely distinct from the subject land. She added that the subject land is the bona fide property of the 2nd Defendant, who acquired it from her as the legitimate owner of the land forming the subject matter of the suit. The 1st Defendant also stated that representatives of the Plaintiff Company made a false report to the Police alleging that she had defrauded the company in relation to the subject land, despite the fact that her documents clearly demonstrate her ownership. As a consequence of this false report, she recounted that she was arrested by the Police and has since been subjected to harassment at the instance of Ernest Kwame Ansah Abiesi, acting on behalf of the Plaintiff Company.

RESOLVING THE ISSUES BEFORE THE COURT.

ISSUE ONE: Whether or not plaintiff is in possession of the land the subject matter of dispute.

PW1 testified that, plaintiff-company was in possession of the land in issue. That the 1st Defendant gave him(PW1) another two plots of land and he took possession of the two plots of land by establishing a block manufacturing factory on the land. Pictures of the said block factory is admitted and marked as exhibit F. From the picture, one can see one block moulding machine situated under a shade. From the evidence, the Plaintiff-company went unto the land somewhere in the year 2017. 1st Defendant

 

asserted that she is in possession of the land. This land has been plotted in the records of the Lands Commission, and subsequently registered at the Deeds Registry which vested in her an indefeasible interest in the property. An indenture evidencing this second grant was executed on the 7th day of February, 1979, a copy of which is attached as Exhibit 2. That after following these grants, she took possession of the lands and exercised overt rights over them by building a dwarf wall around the said land and constructing a residential facility on part of it, while operating a poultry farm called GIFCO Farms Ltd. on other portions of the land. By this evidence, 1st Defendant has been in possession of the land before the plaintiff came unto the land. I so find as a fact. Can we really say the plaintiff in possession of the land in issue has a title to it? The principle of law is clear that, “Possession by itself is not enough to give a title. It must be adverse possession. The true owner must have discontinued possession or have been dispossessed and another must have taken it adversely to him. There must be something in the nature of an ouster of the true owner by the wrongful possessor.”

Please see the case of Djin v Musah Baako[2007-2008] SCGLR 686

& Adwoa Bokor v. Madam Agbo Addoye (substituted by Philip Odoi) [2021] Unreported SC 2021-12-08(Civil Appeal No. J4/38/2021) Torkornoo JSC. The evidence by the legal owner of the land in issue is that, she allowed the plaintiff-company to put his machines on the land but she never alienated the land to Plaintiff. Plaintiff’s evidence is that the land was given to the company in exchange of an earlier land granted. So, the true state of the fact is that, 1st defendant allowed plaintiff company to operate his block molding factory on the property. That, being the case, the plaintiff was in possession of the land in issue not as the true owner but a licensee. I hold based on the evidence before me, that the plaintiff was permitted to put his machines on the land. The plaintiff is therefore a licensee.

ISSUE TWO- Whether or not the 1st defendant alienated two plots of land to the plaintiff as a replacement of the land earlier sold to plaintiff Company. It is not backed by evidence that 1st Defendant alienated two plots of land to the Plaintiff-company. The onus of proof in this matter falls on the plaintiff whose assertions were denied.

 

Denial of plaintiff’s assertions by the 1st defendant required the plaintiff to produce further evidence and in this case, there are no documents to substantiate his claim and his oral assertions.

This is what ensued during cross-examination of Plaintiff’s Managing Director/PW1 by learned counsel for 1st Defendant, please see Page 2 of proceedings dated 28th October, 2020.

Q: The details of the search report confirmed that the land you intended to acquire from the 1st Defendant was recorded in the name of the 1st defendant in the records of lands Commission. That is correct?

A: Yes. It is true that I did not read entirely the documents showed me at the Lands Commission but I read portions of it including the inspection of the site plan attached. However, the Lands Commission search report I based my entire judgement on to give the benefit of the doubt I later realized that was not correct.

Q: Based on you seeing the search report of the Lands Commission you made payments for the acquisition of the land. Is that not correct?

A:  Yes.

Q:  Subsequent to the making of the payment, the 1st defendant dutifully executed a deed of the conveyance to evidence the grant of the land to you. That is also correct.

A:  Yes.

Q: This is the document you have exhibited as exhibit B, that is also correct? A: Yes.

Q: You have also signed exhibit B on behalf of the plaintiff company. That is correct?

A: Yes, it is.

Q: I believe you read the content well before you appended your signature? A: Yes.

 

Q: And you will notice from the recitals from exhibit B that the 1st defendant has stated clearly where she had her land and the fact that as far back as 1978 the land has been registered in her name in accordance of law.

A: Yes.

Q: Now the land that the 1st defendant conveyed to you evidenced by exhibit B that by the search you read is what was pictorially presented to you in the site plan as in exhibit B.

A: Yes.

Q: This site plan replicated on the ground is the exact spot where you have erected your storey building, is that not correct?

A: Correct.

Q: In fact, that is not the land for which you are in court.

A: Yes.

Evidence in the above testimony disclosed that, the Plaintiff Company is in possession of the land purchased from 1st defendant. Plaintiff company constructed a storey building on the land that is the 1st two plots of land alienated to plaintiff by the 1st defendant. The 1st Defendant tendered a search conducted at the Lands Commission dated 15th July, 2015 marked as exhibit 4. This search referred to conveyance dated 28/11/1978 from Nii Adjei Quaye & Others to Gifty Yano & Children. So indeed, a search was conducted which revealed that the land in issue was registered in the name of 1st defendant, Gifty Yano. Based on the report/result of the search, plaintiff paid for the land. This piece of land was registered at the Deeds Registry in accordance with the Land Registration Act, 1962 (Act 122), under Registration Number 375/1984.

PW1, Plaintiff’s Company-Managing Director confirmed during cross- examination that he was shown the search report. At Page 3 of the proceedings dated 26/10/2020 during cross-examination of PW1/Plaintiff’s Managing Director this is what ensued:

Q: When the 1st defendant told you she owns a land, you in fact inspected her document evidencing her ownership of the land.

 

A: … on the 15th July, 2015 before payment she called me to meet her at Lands Commission to actually look at her documents. So when I met her at the Lands Commission, she showed me a search report, the date actually was 17th July, 2015. So that day I saw Lands Commission search report and her site plan. This evidence revealed the fact that, Plaintiff/Managing Director inspected the 1st defendant’s documents including the search report before paying for the land. However, Plaintiff’s/Managing Director tendered exhibit C which is another search conducted allegedly on the two plots of land. This search was conducted on 14th December, 2016. Almost one year after the first search was conducted. The same site plan was used to conduct the search. According to the Plaintiff/Managing Director, this search became necessary because when he took possession of the land, Nii Anum Kodia(Glover) confronted him that the land belongs to him. This search report indicates that the land was leased on 5/1/2000 from Nii Mensah O. Kodia to: Nii Anum Kodia(Glover). 1st Defendant’s search report dated 15th July, 2015, Exhibit 4 was first conducted before the PW1 conducted his search on the same land. The results of the searches are different. Exhibit 4 shows that the land in issue has been registered in the name of 1st Defendant and the Children. This land was registered in the year 1984. However, the 2nd search by Plaintiff’s/Managing Director shows that the land in issue was a lease dated 05/1/2000 from Nii Mensah O. Kodia to: Nii Anum Kodia(Glover).

In 1978 when the 1st defendant acquired the land, the applicable laws were the land Title Registry Act, 1962 (Act 122) Section 24 of Act 122 which provided that registration of an instrument was for its validity whilst section 25 of the Act 152 provided that registration was actual notice to all persons and for all purposes as from the date of registration. Effect of registration of land; Section 111 of the Lands Act, 2020 (Act 1036) provides that, an entry in the lands register shall be conclusive evidence of title of the holder of the interest specified in the lands Register.

 

The 1st Defendant was granted interest in the land as far back as 28/11/1978 by Nii Adjei Quaye and Others, head of La-Agbawe Wuku family of Oyarifa-Accra with consent and concurrence of the principal members.

From the 1st Defendant’s registered indenture, exhibit 1 with land registry No. 345/1984 and the search exhibit 4 conducted on 15/7/2015, it is clear that as far back as 1984 the records of the Lands Registry had the disputed land in its records. If that is so, then Plaintiff’s exhibit C, a search conducted at the Lands Commission which states this land in issue, is a lease dated 5/1/2000 from Nii Mensah O. Kodia & Another to Nii Anum Kodia (Glover) had been registered after the same plot of land was registered for the 1st Defendant. It is my finding of fact that the 1st Defendant had her land first in time, took possession of same and registered same 16 years earlier than when Anum Kordia purportedly registered his. I find as a fact that the first two plots of land are bona fide properties of 1st Defendant. I so hold.

There is no documentary proof that, 1st defendant did transfer her interest in the land to plaintiff company. The explanation by the 1st Defendant that, she allowed PW1 to put his block molding machine on that second plot of land because he told her the other claimants to his block molding factory were giving him problems on the East Legon land is more probable than Plaintiff’s/Managing Director’s explanation that, 1st defendant had replaced the first two plots of land with the land in issue. I said so because, the Plaintiff was sued before the District Court and he did not cause the 1st Defendant to join the action. The court did not call her to testify and there is no evidence that a complaint was lodged at the Lands Commission as to why same land was registered in the names of two different people. At page 9 of Proceedings dated 28th October, 2020. This is what ensued during cross-examination of Plaintiff’s Managing Director by Counsel for the 1st Defendant:

“Q. Did the Court where he took the plaintiff’s company to declare him owner of the subject land.

A. No, he was not declared because the plaintiff company terminated the law suit. And rather sought to amicable settlement because all efforts to get the original documents or photocopies of it from 1st defendant proved futile. She never appeared in court once. All efforts to get her to come to court also proved futile. So more or less, the plaintiff company was left in the simple statement to say an orphan so another lawyer in the court who happened to be a friend rather advised the plaintiff company to settle the matter with Nii Anum Kodia before judgment.

Q. Was she ever invited by the court to come and testify in court?

A. No, but like I said we had been in court for almost seven times but our grantor never showed up so we had to advise ourselves to rather not waste our time and resources but rather channel those resources to peaceful progress.”

It is in evidence that, 1st defendant obtained Judgement in respect of the land in dispute against other contenders of the land in dispute.

During cross-examination of 1st defendant by learned counsel for plaintiff this is part of what ensued:

Q: Did you obtain judgement against Rev. Christopher Sowah Okpoti in respect of the disputed land?

A: Yes.

This judgement was tendered in evidence and marked as exhibit 4A.

It is my holding based on evidence that, 1st Defendant did not use the plots of land in issue as a replacement.

ISSUE 3: Whether or not the 1st defendant had long divested her interest in the land to the Plaintiff and could not purport to divest same to the 2nd Defendant.

Flowing from issue two, that the 1st defendant did not alienate the land in issue to plaintiff-company, I hold that, the 1st defendant had every right to sell the property to anyone she desires since the land is hers. 1st defendant put plaintiff company in possession of the land not as grantees but as a permission for them to stay on the land. A license is a permission given by a land owner to a person to enter upon or to use his land which without the permission, his entry unto the land or use of the land will be a trespass. See page 225 of Concise Guide to the study of Ghana Land Law by Kwesi

 

Anokye Gyimah. The principle of law is that, licenses do not create any proprietary interest in land and generally speaking, a licensee will be on the property at the pleasure of the licensor. A licensee is also not entitled to exclusive possession of the land the subject matter of the license. Please see page 225 of Concise Guide to the study of Ghana Land Law by Kwesi Anokye Gyimah. Based on the principle of law and the evidence before this court I hold that, the defendant had not divested her interest in the land.

ISSUE 4: Whether or not Plaintiff’s acts of ownership by establishing a block factory on the land in dispute served as constructive notice to the 2nd Defendant.

The 1st Defendant testified that she allowed the Plaintiff-Company to just put one block moulding machine on her property to mould blocks to meet the orders given to the Plaintiff company. Plaintiff’s own exhibit F which is a picture showing the block molding factory displayed only one block moulding machine. The principle of law is that, where the evidence of a party on an issue had been corroborated, that party’s case ought to be preferred to that which had not been corroborated unless there were good reasons to be clearly stated in the judgment. Please see the cases of

MANUKURE V. AGYEKUM (1992-93) GBR 888 C/A.

HULL BLYTH (GH) LTD AND WILHELMSEN LINES OF NORWAY V. ANGLOGOLD ASHANTI LTD AND ATLAS MANUFACTURING & ENGINEERING (GH) LIMITED (2010) UNREPORTED HC SUIT NO. 1118/99.

YAKUBU SALIFU V ALHAJI FUSEINI SEIDU (2016) UNREPORTED HC SUIT NO. BC 543/2014.

ISSUE 5: Whether or not Plaintiff’s acquisition of the land in dispute was prior in time to that of 2nd Defendant.

There is no evidence before the court to say that Plaintiff acquired the land in issue. DW1 was Rev. Christopher Sowah Okpoti. He testified in support of 2nd Defendant’s case. He tendered Exhibit 2D6 which is an indenture dated 24th August, 2015. This

 

indenture was between Rev. Christopher Sowah Okpoti and the 2nd defendant. He testified further that he sold the land in issue to the 2nd Defendant. However, 1st defendant testified that, she sued Rev. Christopher for dealing with her land and had a judgement against him. This judgement was tendered as Exhibit 4A.

This is what ensued during cross-examination between learned counsel for plaintiff and DW1;

Q: There is a litigation between you and Mad. Gifty (1st Defendant) in respect of the disputed land, is that not correct?

A: It is correct.

Q: Do you still maintain that the disputed land was not conveyed to the 1st defendant by your grandfather forever?

A: So far as the land madam Gifty owns falls within the Owusu We family properties anything at all which comes in the land matters I can come and say what I know.

Q: Look at exhibit 4A annexed to the supplementary witness statement of 1st defendant filed on 1st December, 2022 …

A: I cannot see.

Q: Exhibit 4A is a judgement obtained against you by the 1st Defendant in respect of the disputed land, is that not correct?

A: It is correct.

Q: …And in exhibit 4A, … the court declared title in favour of the 1st defendant as against you.

A: It is true.

So, from Exhibit 4A, the Judgement, Court Coram His Lordship Justice E.K. Bosompem Apenkwah J declared title in the land in issue to 1st Defendant and restrained Rev. Christopher his agents, assigns and whosoever claiming title through him from interfering in any way or form with the 1st defendant’s quiet enjoyment. As earlier on stated in this judgement, Plaintiff does not have any document on the land in issue. There is no iota of evidence on record to show that, the Plaintiff acquired the land.

 

There is no contract for sale, indenture or any document at all to indicate that 1st defendant alienated or intended to alienate the land in issue to plaintiff. On the additional issue filed by the 2nd defendant, which is Whether or not the Agbawe Owusu We family of Oyarifa in the Greater Accra Region of the Republic of Ghana made a valid grant of the disputed land to the 2nd Defendant, has been dealt with conclusively in Exhibit 4A. Per Exhibit 4A and the evidence before me, 1st Defendant is the proper person to alienate the land in issue.

In conclusion, based on all the above, 1st Defendant is successful on her counterclaim as follows:

(a) Declaration that 1st Defendant is the owner of all that land described in

Schedules “A” and “B” in her defence and counterclaim.

(b) Declaration that the land sold to the Plaintiff by the 1st Defendant measuring

0.32 acres bounded on the North-East by 1st Defendant’s land measuring

100.2 feet more or less, on the South-East by the 1st Defendant’s land measuring 140 feet more or less on the South-West by 1st Defendant’s land measuring 100.2 feet more or less and on the North-West by a proposed road measuring 140 feet more or less, was owned by the 1st Defendant and same properly granted to the Plaintiff.

(c) Declaration that the land the subject matter of this action described in relief

(1) of the Plaintiff’s Statement of Claim is owned by the 2nd Defendant.

(d) A further declaration that the subject land sold to the Plaintiff as described in reliefs (b) of the counterclaim is not owned by Anum Kodua.

(e) An order of perpetual injunction to restrain the Plaintiff, his alleged grantors and agents from interfering in the 2nd Defendant’s quiet enjoyment of the land the subject matter of this action.

 

(f) An order is hereby directed at the Plaintiff to remove all his block moulding equipment and machines from the subject land and give vacant possession of same to the 2nd Defendant. Except counterclaim

(g) Damages for harassment.”

I am unable to grant damages for harassment because I do not find enough evidence to enable me grant same. 2nd defendant’s case is tied up to the 1st defendant. 2nd defendant prayed for damages for trespass. However, since the plaintiff was permitted to place his block moulding machine on the plot of land in issue, I do not think it is liable to pay damages because he is a licensee.

I have considered the number of years this case spent in the court, the number of times parties had to attend court and the documents filed, I hereby award Cost of GH¢50,000.00 against the plaintiff for the benefit of the defendants.