Juliana Buckman v Ruth Appiah

1.0 INTRODUCTION:

The brief facts of this case are that the Plaintiff is a Ghanaian and ordinarily resident in the United Kingdom and brings this action per her lawful attorney, Frank Morgan.

1.1 Defendant is a trespasser who has trespassed unto a portion of the Plaintiff’s land at Abesey, Pokuase. The Plaintiff avers that in the year 2004 she was offered six plots of land by the Nii Opah Kofi family of Abesey, near Pokuase.

 

1.2 The Plaintiff avers that on 5th August, 2004 she made a part payment of GhS4,000.00 and was issued with a receipt to that effect. The plaintiff avers that on 2nd December, 2009, she made payment of GhS2,000.00 and on 17th March, 2010 made another payment of GhS1,000.00 and was issued with receipts.

1.3 The Plaintiff avers that the Nii Opah family later sold two of the plots because the Plaintiff delayed in making payment leaving four plots of the land for the Plaintiff. The Plaintiff avers that she was given a Deed of Assignment dated 16th December, 2005 covering the remaining four plots of land granted by Emmanuel Odartey Lamptey and Godfred Nii Lamptey, the lawful representative of Nii Opah Kofi family.

1.4 The Plaintiff avers that she was granted all that piece or parcel of land situate and being at Abesey-Pokuase, Accra and bounded on the North-East by a proposed road measuring 120.0 and 40.0 feet more or less on the South-East by a proposed road measuring 130 feet more or less on the South-West by the Assignors land measuring 200.0 feet more or less on the North-West by a proposed road measuring 145.0 and 45.0 feet more or less and containing an approximate area of 0.18 acre.

 

1.5 The Plaintiff avers that Emmanuel Odartey Lamptey, and Godfrey Nii Lamptey also derived their title from a lease dated 1st July, 2001, registered as No. AR/5892/2001 and stamped as No. LVB 7735/2002 and made between Emmanuel Odartey Lamptey, Head of the Nii Opah family of Abesey and Emmanuel Odartey Lamptey and Godfred Nii Lamptey.

1.6 The Plaintiff avers that she was put in possession of the land and has constructed a fence wall around part of the land and has also put up a single room on a portion of the land. The Plaintiff avers that in or about 2009 the Defendant trespassed unto a portion of the Plaintiff’s land and made a foundation and started putting up a structure on the said land.

1.7 The Plaintiff says she contacted the chief who sold the land to her through her lawful attorney and was told her land has not been sold, for which reason the Plaintiff stopped the Defendant from developing the land.

1.8 The Plaintiff avers that few years later the Plaintiff’s Lawful Attorney received a call from a certain man purporting to be the husband of the Defendant saying that from their enquiries they have realized that the land belonged to the Plaintiff for which reason they were ready to settle the issue with the Plaintiff.

 

1.9 The Plaintiff avers that in October 2013, the Defendant came to see the Plaintiff’s Lawful Attorney and offered to replace the land for the Plaintiff whereupon the Defendant was granted permission to continue with her development on the land.

2.0 The Plaintiff says that subsequently the Defendant came with a written proposal to pay the Plaintiff GhS9,000.00 and offered to pay cash of GhS3,000.00 and the balance later but the Plaintiff rejected same and stopped the work on the land.

2.1 The Plaintiff avers that later her Lawful Attorney was contacted on phone by a certain man claiming to be a friend to the Defendant and wanting to meet the Plaintiff’s Lawful Attorney to show him a parcel of land if the Plaintiff is interested to take same as the replacement for the Plaintiff’s land.

2.2 The Plaintiff avers that her Lawful Attorney met the said man and was taken to two different places, one at Ashongman around Bank of Ghana and the other at Pokuase ACP Estates. The Plaintiff avers that through her lawful Attorney, the Plaintiff agreed to take the land around ACP Estate as replacement but after two weeks the Plaintiff’s Lawful Attorney was called on phone and told that the value of the Plaintiff’s land was not up to the value of the land at

 

ACP and that was the last time the Plaintiff heard from the Defendant.

2.3 The Plaintiff avers that in the month of March 2015, the Defendant resumed her development on the land with the speed of light ignoring all warnings and protestations from the Plaintiff’s Lawful Attorney.

2.4 The Plaintiff avers that the structure being put up on the land by the Defendant is a storey building and the Defendant is now busily preparing to deck and floor the first floor of the building. The Plaintiff avers that her Lawful Attorney reported the matter to the police headquarters and also took pictures of the development on the land.

2.5 The Plaintiff avers that the police arrested one of the workers of the Defendant on the land in dispute and invited the Defendant to the police station but after sometime the Defendant resumed the development. The Plaintiff avers that the Defendant does not intend to stop her development on the land unless restrained by this Honourable Court.

2.6 Based on these facts, the Plaintiff’s claim against the Defendant as follows:

 

a. Declaration of title to the land described in paragraph 8 of the statement of claim.

b. Damages for trespass

c. Recovery of possession.

d. Perpetual injunction.

2.7 In contesting the action, the Defendant entered an appearance and also filed her defence and counterclaimed against the Plaintiff.

2.8 At the Application for Directions stage, the following issues were set down for the trial:

a. Whether or not the Plaintiff validly acquired the disputed land.

b. Whether or not the Defendant validly acquired the disputed land.

c. Whether or not the Defendant acknowledged the Plaintiff’s ownership of the disputed land and undertook to find a replacement land for the Plaintiff.

d. Whether or not there was an arbitration that resolved that the disputed land be given to the Defendant and for the Plaintiff to be given another plot elsewhere.

2.9 The case of the Plaintiff was articulated by his Attorney, one Frank Edem Morgan. See Exhibit A, a copy of the Power of Attorney.

 

It is his testimony that the Plaintiff was initially granted six (6) plots of the land by the Nii Opah Kofi family of Pokuase. See Exhibits “B”, “B1” and “B2”, copies of the Receipts evidencing the purchase of the land.

3.0 But the chief of Abesey, Nii Abonseiku II subsequently informed the Plaintiff that they had given out two (2) plots out of the six (6) plots they had granted the Plaintiff because they needed money urgently since the Plaintiff was left with some balance of payment to be made, even though they did not call on the Plaintiff when they needed the money.

3.1 The Plaintiff agreed with the Nii Opah family and settled for the remaining four (4) plots of land and an indenture dated 16th December, 2005 was prepared for the Plaintiff covering all four (4) plots. See Exhibit “C”, a copy of the Indenture.

3.2 The Plaintiff then caused sand and stones to be deposited on the land. Trenches and dwarf walls were constructed on portions of the land. A single room was erected in the middle of the four (4) plots and a caretaker was placed there but the caretaker later moved out.

3.3 The Attorney continued that he visited the land in question which is also opposite the Plaintiff’s ongoing development and realized that someone had deposited sand and stones on one of the four (4) plots

 

of land. He quickly contacted the Nii Opah family if they were involved in any sale of the Plaintiff’s land but they denied having any knowledge of it.

3.4 He visited the land another time and this time met a mason and workers trying to dig the ground to start working on the land in dispute. He stopped them from working on the land and the workers told him their madam who is undertaking the development on the land lives in the United States and that they would like to give his phone number to her to call him.

3.5 He continued that the Plaintiff constructed the single room on the middle of the four (4) plots and placed a caretaker there to prevent any encroachment. The single room was subsequently moved to one corner of the four (4) plots. See Exhibit “D”, a picture of the single room.

3.6 According to the Attorney he later relocated to live in Abesey, Pokuase just opposite the four (4) plots of land in the year 2010 and so it became difficult for the Defendant to cause her workmen and agents to develop the land.

3.7 The Plaintiff testified that he later received a call from the United States of America from a lady describing herself as the one who bought the disputed land who is now the Defendant herein. After

 

identifying herself, she pleaded with him to exercise patience with her and that she had been deceived by her grantors who sold the Plaintiff’s land to her.

3.8 According to the Attorney he later received a call from the Defendant in the year 2012, and this time using a local phone number saying she has arrived in Ghana and wants to hold a discussion with him to resolve the matter since she has been disappointed by her grantors.

3.9 The attorney met the Defendant at his residence at Abesey, Pokuase for the first time in October, 2012 at her request when she came and pleaded to be allowed to keep the disputed plot and then find a replacement with in that same community for the Plaintiff because she recognizes the Plaintiff’s ownership of the disputed land.

4.0 The Defendant then pleaded with him to put in a word for the Plaintiff to allow her to continue with the development of the land and out of trust and sympathy the Plaintiff agreed on the basis that the Defendant will replace the land within the same community and not to later challenge the Plaintiff’s title.

4.1 It is the Attorney’s case that he met the Defendant for the second time at his residence at Abesey barely two weeks after the first

 

meeting and after the Plaintiff had permitted the Defendant to commence with the development of the disputed land. At the second meeting, the Defendant caused an agreement to be executed admitting that the Plaintiff’s ownership of the land and her willingness and preparedness to replace the land within the community. See Exhibit “E”, a copy of the Agreement.

4.2 At the said meeting, the Defendant has signed her part of the agreement and left the document to be signed by him as well and that she added a brown envelope containing money as part payment for the land which he rejected because that was not the arrangement or understanding the parties had.

4.3 The Plaintiff then caused the Defendant’s workers to stop any form of work on the land in dispute to await for the replacement. According to the Attorney he later received a call from a man who said he knew the Defendant and her husband in the United States of America and has the instructions of the Defendant to find him a suitable land of his choice.

4.4 He then met this man and he showed him two different sites around Ashongman Estates close to a locality called “Bank of Ghana” and then a place behind the ACP Estate around Pokuase. In the interest

 

of peace and to show good faith the Plaintiff directed him to accept the land behind the ACP Estates as the replacement.

4.5 However, after about three weeks that he was shown the land by the man at ACP Estates which the Plaintiff directed him to accept as the replacement, he was informed by the said man that he could not give that land to the Plaintiff because the Defendant claims the intended land to be used as the replacement was quite expensive as compared to the disputed land hence the Defendant will not pay for the land.

4.6 The Defendant then tried to continue with the development of the land and the Plaintiff caused the matter to be reported to the Property Fraud Unit of the Ghana Police Service where one of the Defendant’s workers was arrested and subsequently the Defendant herself was arrested and later granted bail.

4.7 The police advised the Defendant to desist from developing the land but after two weeks she resumed work hence the police advised the Plaintiff to institute a legal action since according to the police it was more of a civil matter.

4.8 According to the Attorney, he received an invitation from the Asere Traditional Council over a complaint which he honoured with two friends; Michael Yiadom and Samuel Owiredu, who was the

 

Plaintiff’s foreman. Present at the meeting were the Plaintiff’s grantors in the person of Nii Abonseiku II, Nii Ahitey, the linguist of the Asere Traditional Council and two other men. See Exhibit “F”, a copy of the Invitation.

4.9 At the meeting, he was informed there was a complaint against the Plaintiff that she has caused fence walls to be erected on the lands belonging to the complainants and explained to them how the six

(6) plots of land were purchased by the Plaintiff and later reduced to four (4) plots of land.

5.0 That the council concluded that the Plaintiff should go and take her land and develop it for the family to find a way of holding those who sold the land accountable to the complainants including the Defendant herein.

5.1 He then left the palace and never went back, neither did he sign or agree on any decision to the contrary and that he was not a party to whatever agreement that was reached between the complainants including the Defendant herein, the Nii Opah Kofi’s family and the Asere Traditional Council after he was permitted to leave the palace.

5.2 It is the testimony of the Plaintiff that the Plaintiff owns the disputed land and that she was never involved in any agreement purporting

 

to ask the Defendant to take over a land that rightfully belonged to the Plaintiff.

5.3 The Attorney continued that he was also invited by the chief of Abessey for a meeting where two representatives of the Defendant were present in that meeting. They were one gentleman who said he had arrived from the United States of America and one Thomas Twum, the Defendant’s caretaker. At the said meeting, the chief who is one of the Plaintiff’s grantors said the Defendant had approached him to mediate and assist them to settle the matter since there has been a court injunction on the land and her grantors have left her alone.

5.4 The meeting concluded by the Defendant and chief agreeing to replace the Plaintiff’s land with two plots of land within the community as a form of compensation from the Defendant, so that the Plaintiff could allow the Defendant to continue work on the disputed land and also end the matter.

5.5 The Attorney testified that it was a condition for the Defendant to replace the disputed land for the Plaintiff before continuing to develop the land. But after unsuccessful attempts at finding a replacement land for the Plaintiff, the Defendant continued with her development of the disputed land.

 

5.6 That the conduct of the Defendant in continuing with the development without finding a replacement for the Plaintiff compelled the Plaintiff to commence this instant action and applied and obtained an interlocutory injunction stopping the Defendant from further development of the land. See Exhibit “G”, a copy of the Injunction Order.

5.7 Also the Defendant was restrained from further developing the disputed land, she again made attempts to replace the land for the Plaintiff. These attempts led to the preparation of an indenture covering two plots of land as a replacement but when the Plaintiff did due diligence on the said plots, it was discovered that the said land belonged to another person. See Exhibit “H”, a copy of the Indenture.

5.8 After the unsuccessful attempts of replacing the land for the Plaintiff, the Defendant applied to the court for a variation of the interlocutory injunction order which was granted against her and her application was granted.

5.9 The court in varying the interlocutory injunction order stated that the event that the Defendant loses the case, the Plaintiff shall be entitled to claim the building that would have been built on the land. See Exhibit “J”, a copy of the Ruling.

 

6.0 The case of the Defendant was articulated by his only witness one Thomas Twum. It is his testimony that the Defendant is a grantee of the Opah Kofi family of Pokuase, Accra, per a Deed of Lease dated 29th January, 2014 and executed on behalf of the said family by Godfrey Odartei Lamptey, which plot of land covers an area of approximately 0.16 acre or 0.07 hectare more or less and bounded on the North-West by Opah Kofi family land measuring 100.0 feet more or less on the North-East by a proposed road measuring 70.0 feet more or less, on the South-East by Opah Kofi land measuring

100.0 feet or less, and on the South-West by Opah Kofi family land measuring 70.0 feet more or less. See Exhibit 1”, a copy of the Lease Agreement.

6.1 He continued that the Defendant obtained architectural drawings for the construction of a dwelling house and appointed agents to supervise the construction of the building on the plot of land.

6.2 And that it was after the ground floor had been completed and she was preparing to construct the upper floor, that her agents were contacted by one Frank Morgan in the company of others, who with threat of force, made a claim to the land on behalf of the Plaintiff and threatened violence, should works on the plot of land did not cease. See Exhibit “3” series, photographs of the building before the Plaintiff’s agent confronted the Defendant.

6.3 The Defendant directed her agents to make a complaint on her behalf to her grantors, and this complaint resulted in an invitation to all the parties concerned to appear before the Arbitration Committee of the Asere Traditional Council at Kaneshie for a resolution.

6.4 That on 30th April, 2013, a resolution was arrived at by the committee aforementioned which declared that the Defendant should be in an undisturbed possession of her plot, and for the Plaintiff (acting through her agent) to be given another plot elsewhere or have all monies paid and expended on the land, if any reimbursed, by the Defendant’s grantors.

6.5 The Defendant thus was free and able to instruct her agents to continue with the construction of her dwelling house.

6.6 It is the testimony of the Attorney that before the Defendant acquired the land, all the informal searches and the formal searches she conducted at the lands Commission showed that the land she intended to buy, and indeed bought, was not and is still not, encumbered in anyway.

 

6.7 It is also the testimony of DW1 that the Defendant is a bonafide purchaser for value with legal interest without any notice of defect of title of the disputed property.

6.8 That the Plaintiff is estopped by her own conduct to institute the instant suit after agreeing for the Defendant to continue her construction on the disputed land and that having agreed with the Defendant’s grantor to find a replacement land for her, the Plaintiff had nothing to do with the Defendant again.

6.9 This being a civil case the standard was proof on the preponderance of the probabilities. The law is that the plaintiff apart from pleading his root of title, mode of acquisition and overt act of ownership must prove that she is entitled to the declaration sought.

7.0 In AWUKU V. TETTEH [2011] 1SCGLR 366, the court decided that in an action for declaration of title to land, the onus was heavily on the plaintiff to prove his case and could not rely on the weakness of the Defendant’s case.

7.1 In MONDIAL VENEER GH. LIMITED V. AMAH GYEBU [2011] 1 SCGLR 466 AT 475, Her Ladyship the Chief Justice, Georgina Wood, wrote that: “In land litigation, even where living witnesses who were directly involved in the transaction under reference are produced in court as witnesses, the law requires the person asserting title and on whom the burden of persuasion falls,….to prove the root of his title, mode of acquisition and various acts of possession exercised over the subject-matter of litigation.”

7.2 Again, in the case of YAW KWESI V. ARHIN DAVIS & ANOR [2007-2008] SCGLR 580 it was held that:

“since the plaintiff/applicant sued not only for declaration of title but also for damages for trespass and order for perpetual injunction, he assumed the onerous burden of proof of title to the disputed land by the preponderance of the probabilities as required by sections 11(1) and (4) and 12 of the Evidence Act, NRCD 323 of 1975.

7.3 This brings the court to the issues set down for determination. I will take Issues (C) and (D) together thus:

“(C) Whether or not the defendant acknowledged Plaintiff’s ownership of the disputed land and undertook to find a replacement land for the Plaintiff and (D) whether or not there was an arbitration that

 

resolved that the disputed land be given to the Defendant and for the Plaintiff to be given another plot elsewhere.”

7.4 On issue (c) counsel for the Plaintiff submits that while the Defendant has denied in paragraph22 of her defence that she agreed to replace the land for the Plaintiff, she contradicted her own pleadings when she pleaded that the Plaintiff was estopped from bringing an action after agreeing for her to continue her construction on the disputed land. And that the Defendant also pleaded in paragraph 18 of her Further Amended Defence that she has been able to secure a replacement land for the Plaintiff.

7.5 Counsel submits that in proof of the assertions, the Plaintiff’s lawful attorney testified in paragraphs 14 to 26 of his witness statement as follows:

“14. I received a call from the United States of America from a lady describing herself as the one who bought the disputed land who is now the Defendant.

15. After identifying herself, she pleaded with me to exercise patience with her and that she had been deceived by her grantors who sold the Plaintiff’s land to her.

16. I again received a call from the Defendant in the year 2012m and this time using a local phone number saying she has arrived in Ghana and wants to hold a discussion with me to assist resolve the matter since she has been disappointed by her grantors.

17. I met the Defendant in my residence at Abessey, Pokuase for the first time in October, 2012 at her request when she came and pleaded to be allowed to keep the disputed plot and then find a replacement within that same community for the Plaintiff because she recognizes Plaintiff’s ownership of the disputed land.

18. The Defendant then pleaded with me to put in a word for Plaintiff to allow her to continue with the development of the land and out of trust and sympathy Plaintiff agreed on the basis that Defendant will replace the land within the same community and not to later challenge Plaintiff’s title.

19. I met the Defendant for the second time in my residence at Abessey barely two weeks after the first meeting and after Plaintiff had permitted Defendant to commence with the development of the disputed land. At the second meeting Defendant caused an agreement to be executed admitting Plaintiff’s ownership of the land and her willingness and preparedness to replace the land within the community. I wish to tender in evidence the agreement as Exhibit “E”.

20. At the said meeting, Defendant had signed her part of the agreement and left the document to be signed by me as well. In fact, she added a brown envelope containing money as part payment for the land which I rejected because that was not the arrangement or understanding the parties had.

 

21. The Plaintiff then caused Defendant worker to stop any form of work on the land in dispute to await the replacement.

22. I later received a call from a man who said he knew the Defendant and her husband in the United States of America and has the instructions of the Defendant to find me a suitable land of my choice.

23. I then met this man and he showed me two different sites around Ashongman Estate close to a locality called “Bank of Ghana” and then a place behind the ACP Estate around Pokuase. In the interest of peace and to show good faith Plaintiff directed me to accept the land behind the ACP Estates as a replacement.

24. After about three weeks that I was shown the land by the man at ACP Estates which the Plaintiff directed me to accept a replacement, I was informed by the said man that he could not give that land to the Plaintiff because the Defendant claims the intended land to be used as

 replacement was quite expensive compared to the disputed land hence Defendant will not pay for the land.

25. Defendant then tried to continue with the development of the land and the Plaintiff caused the matter to be reported to the property fraud unit of the Ghana Police Service where one of the Defendant’s workers was arrested and subsequently the Defendant herself was arrested and later granted bail.

26. The police advised Defendant to desist from developing the land but after two weeks, the Defendant and her workers resumed work hence the police advised the Plaintiff to institute a legal action since according to the police it was more of a civil matter.

7.6 According to counsel, it is clear from the above evidence-in-chief of Plaintiff’s lawful attorney that the Defendant was permitted to continue the development of the disputed land on condition that she replaced the land for the Plaintiff. And that in the Defendant’s own undertaking tendered in evidence by the Plaintiff as Exhibit “E”, the Defendant agreed to provide a plot of land as a replacement of Pokuase.

7.7 Counsel states that though neither the Plaintiff nor her attorney signed the said agreement, Exhibit “E”, the Plaintiff said based on the Defendant’s own undertaking to replace the land, the Plaintiff permitted her to continue the development but when the Defendant failed to honour her own undertaking, she was stopped from developing the land and the Plaintiff consequently commenced the instant action against the Defendant.

7.8 It is the submission of counsel that during the cross examination of the Defendant’s witness on the replacement of the land, this was what transpired:

“Q: You will agree with me that the only condition on which the Defendant was allowed to continue the development of the disputed land was because she voluntarily undertook in 2012 to replace the land for the Plaintiff.

A: It was based on the agreement made in 2012 that the Defendant continued with the development of the land.

 

Q: And the Defendant woefully failed to fulfil her own undertaking of replacing the land for the Plaintiff.

A: She complied with the undertaking.

Q: Which failure compelled the Plaintiff to institute this present action against the Defendant for recovery of the land, is that not so?

A: We were in the process of replacing the land for the Plaintiff when she brought the action.

Q: And when the Plaintiff brought the action, the Defendant still failed up till now to replace the land for the Plaintiff at Pokuase.

A: We have replaced the land and informed the Plaintiff’s attorney who said I should get in touch with my lawyer to get in touch with his lawyer, this was done. But my lawyer later called that the Plaintiff’s lawyer had told him that the Plaintiff’s attorney was no longer interested in the land but was demanding for US$100,000.00.

Q: What you have just stated took place allegedly in the course of the hearing of this matter. Is that so?

A: Yes.

 

Q: So it means that in the course of the hearing, there were attempts to still see if the matter can be resolved.

A: Yes.

Q: So it was based on that that you provided Exhibit “S5”, the indenture of lease.

A: Yes.

Q: But Exhibit “S5”, the land is not located at Pokuase for which reason the Plaintiff through her counsel rejected your offer.

A: The land is located at Pokuase and moreover the Plaintiff’s attorney refused to go and look at the land and as such he did not know where the land is.

Q: So it was to still accommodate the Defendant that the Plaintiff’s attorney proposed that if the Defendant is unable to get the replacement as she has promised, she should pay for the value of the land which present is going for US$100,000.00.

A: As part of the settlement, we did not state that we will pay money to the Plaintiff, we only agreed on replacement. And during cross-examination of the

 

Plaintiff’s attorney, he admitted that the Defendant offered him money but he rejected it.

Q: The Plaintiff is not a party to the Defendant’s own undertaking to replace the land.

A: It was the Plaintiff’s attorney who agreed to the replacement.

Q: So the Defendant having failed to honour her own undertaking is not entitled to her reliefs.

A: I disagree that the Defendant failed to honour her promise and that we have secured a land to replace her land.”

7.9 Counsel continued that from the evidence of the Plaintiff’s attorney and the cross examination of the Defendant’s witness above, it is clear that the Defendant’s offer to replace the land for the Plaintiff was condition precedent for allowing the Defendant to continue the development of the land and when the Defendant failed to honour the condition, she was stopped from doing so and the instant action instituted in 2015.

8.0 It is also the submission of counsel that when the Defendant failed to replace the land and the Plaintiff instituted the instant action, the Plaintiff applied in the year 2015 and obtained an interlocutory injunction order restraining the Defendant from further developing the land and sought for declaration of title and recovery of possession. The Plaintiff’s attorney testified per paragraphs 37, 38, 39, 40 and 41 of his witness statement as follows:

“37. I can testify that it was a condition for the Defendant to replace the disputed land for the plaintiff before continuing to develop the land. But after unsuccessful attempts at finding a replacement land for the Plaintiff, the Defendant continued with her development of the disputed land.

38. The conduct of the Defendant in continuing with the development without finding a replacement for the Plaintiff compelled the Plaintiff to commence this instant action and applied and obtained an interlocutory injunction stopping the Defendant from further Development of the land. I wish to tender in evidence the order for interlocutory injunction as Exhibit “G”.

39. I am aware that after the Defendant was restrained from further developing the disputed land, she again made attempts to replace the land for the Plaintiff. These attempts led to the preparation of an indenture covering two plots of land as replacement but when the Plaintiff did due diligence on the said plots, it was discovered that the said land belonged to another person. I wish to tender in evidence the indenture as Exhibit “H”.

40. After the unsuccessful attempts at replacing the land for the Plaintiff, the Defendant applied to the court for variation of the interlocutory injunction order which was granted against her and her application was granted.

41. The court in varying the interlocutory injunction order stated that in the event that the Defendant loses the case, the Plaintiff shall be entitled to claim the building that would have been built on the land. I wish to tender in evidence the ruling of the court as Exhibit “J”.

8.1 Counsel submits that from the above testimony of the Plaintiff’s attorney, it is clear that when the Plaintiff commenced the action against the Defendant in 2015 for failing to replace the land, an order of interlocutory injunction was applied for and obtained against the Defendant restraining the Defendant from further developing the land pending the determination of the matter. This is evident from Exhibit “G”. And that in the said Exhibit “G”, it was stated in conclusion as follows:

“In the circumstances, I review my ruling delivered on 25th August, 2015 and grant the application for interlocutory injunction. Accordingly, the application for interlocutory injunction is granted.”

8.2 Also per Exhibit “H”, the judge stated as follows:

“In any event, I think the principle of quid quid solo plantatar cedit (“he who owns the land owns everything on it’) forcefully applied to this case so that in the event of the applicant losing the case eventually, the Plaintiff shall be entitled to claim the building that would have been completed on the res litigosa or in the alternative, the applicant may be ordered to give vacant possession of same to the Respondent. And I will order the applicant to give an undertaking to that effect.”

 

8.3 Counsel submits that the witness of the Defendant, DW1 confirmed the above state of affairs during the cross examination. This was what transpired under cross examination of DW1:

“Q: You are aware that when the Plaintiff brought the action against the Defendant the court granted an injunction order to stop the Defendant from further developing the land.

A: Yes.

Q: Now, you are aware that in the year 2022, the Defendant brought an application for variation of the injunction order and this was granted. Is that not so?

A: Yes.

Q: At the time that the injunction order was varied, the building on the land was as you have stated at the first floor, lentil level, is that not so?

A: Part was at the lentil level and others were at window level.

Q: What is the state of the building now on the land?

A: We are done with the roofing and we have finished with all the plastering.

 

Q: Take a look at Exhibits S7 (1). Witness shown Exhibits S7 and S7 (1). Tell the court whether that is the state of the building on the land now?

A: Yes.

Q: The present state of the building was done after the variation of the injunction order, is that not so?

A: Yes.”

8.4 Continuing, counsel submits that from the foregoing, it is clear that the Defendant has completed the building on the disputed land after the order of the interlocutory injunction was varied. This was confirmed by DW1 and evidenced by Exhibits S7 and S7 (1). And this was done according to DW1 when the Defendant was still in the process of replacing the land for the Plaintiff. This is what DW1 said under cross examination:

“Q: And the Defendant woefully failed to fulfil her own undertaking of replacing the land for the Plaintiff.

A: She complied with the undertaking.

Q: Which failure compelled the Plaintiff to institute this present action against the Defendant for recovery of the land, is that not so?

 

A: We were in the process of replacing the land for the Plaintiff when she brought the action.”

8.5 Counsel submits that the Plaintiff is entitled to claim the land together with the completed building or an order for recovery of possession of same as stated in the ruling of the court, Exhibit “H”.

8.6 It is the submission of counsel that from the evidence adduced, it is clear that the Defendant took a calculated risk knowing very well that she was still in the process of replacing the land for the Plaintiff. And that by applying for the variation of the injunction order and completing the building on the land when she knew that she was still in the process to replace the land and the action was still pending for determination, she took a calculated risk with all the facts known to her. More so as she was warned in the ruling of the court, Exhibit “H”, that if she loses the case the Plaintiff shall be entitled to claim the building or be given vacant possession of same.

8.7 Counsel for the Defendant on the issue submitted that even though the Defendant eventually found a replacement land for the Plaintiff, the Plaintiff rejected same and rather demanded USD$100,000.00 from the Defendant, which figure was highly unreasonable at a place like Pokuase in the Greater Accra region.

 

8.8 And that during the cross examination of DW1 by counsel for the Plaintiff, the following ensued:

“Q: So it was to still accommodate the Defendant that the Plaintiff’s attorney proposed that if the Defendant is unable to get the replacement as she has promised, she should pay for the value of the land which presently is going for USD$100,000.00.

A: As part of the settlement we did not state that we will pay money to the Plaintiff, we only agreed on replacement. And during cross examination of the Plaintiff’s attorney he admitted that the Defendant offered him money but he rejected it.

Q: The Plaintiff is not a party to the Defendant’s own undertaking to replace the land.

A: It was the Plaintiff’s attorney who agreed to the replacement.

Q: So the Defendant having failed to honour her own undertaking is not entitled to her reliefs.

A: I disagree that the Defendant failed to honour her promise and that we have secured a land to replace her land.”

 

8.9 The pleadings and the evidence show that the parties before coming to court met on several occasions to resolve the issues between them. The rationale behind the meetings was for the Defendant to give the Plaintiff another land as a replacement for the land in dispute.

9.0 DW1 on the issue testified per paragraphs 15, 16 and 17 of his witness statement as follows:

“15. That the plaintiff is estopped by her own conduct to institute the instant suit after agreeing for the Defendant to continue her construction on the disputed land.

16. The Plaintiff agreed with the grantor of the Defendant, for the Defendant’s grantor to find a replacement land for the Plaintiff.

17. I say that having agreed with the Defendant’s grantor to find a replacement land for her (Plaintiff), the Plaintiff had nothing to do with the Defendant again.”

9.1 However, the Plaintiff’s Attorney testified that eventhough there were attempts to resolve the issue same proved futile. There is

 

evidence on record depicting that presently the Defendant has put up a building on the disputed plot.

9.2 This was what DW1 told the court when he was cross examined on the issue.

“Q: You will agree with me that the only condition on which the Defendant was allowed to continue with the development of the disputed land was because she voluntarily undertook in 2012 to replace the land for the Plaintiff.

A: It was based on the agreement made in 2012 that the Defendant continued with the development of the land,” emphasis supplied.

9.3 In the circumstance, can the Plaintiff now claim the land and the building thereon as a result of the failure of the Defendant to replace the Plaintiff with another land?

9.4 Under section 26 of the evidence Act 1975 (NRCD 323) a person is estopped by his own conduct if he intentionally causes another to believe something to be true and the person to whom the representation is made relied upon such belief to his detriment. The language of the provision is that:

 

“Except as otherwise provided by law, including a rule of equity, when a party has by his own statement, act or omission, internationally and deliberately caused or permitted another person to believe a thing to be true and to act upon such belief, the truth of that thing shall be conclusively presumed against that party or his successors in interest in any proceedings between that party or his successors in interest and such relying person or his successors in interest.”

9.5 In his book “Essentials of Ghana Law on Evidence” published in 2014 the eminent Ghanaian jurist JUSTICE S. A. BROBBEY a retired justice of the Supreme Court of Ghana stated at paragraph 8-6-11 page 311 under the rubric “estoppel by conduct as follows:

“Estoppel by Conduct arises this way:

A person puts up behavior or makes a statement on the basis of which he knows the other party will act and when that other party acts on its to his detriment, that person will be prevented from asserting the opposite of what his behavior has led the other party to believe in. That person will be estopped from denying his behavior or statement or the

 

consequences of his behaviour or statement. The doctrine is said to have been formally articulated in the old case of PICKARD V. SEARS [1837] 6AD & EI 469, as follows:-

“Where one by his own words or conduct willfully causes another to believe in the existence of a certain state of things, and induces him to act on that belief, or to alter his own previous position, the former is precluded from averting against the latter a different state of things as existing at that time.”

9.6 In our jurisdiction, the general principles for the application of estoppels are predicated on the principles of fairness and justice. This was summed up in the case of SOCIAL SECURITY BANK V. AGYARKWA [1991-1992] holding 1 in the following words;

“The principle of estoppel by conduct was applicable only in those circumstances where it was just to invoke it, namely in those circumstances in which it could be unjust, inequitable or inconceivable to permit a party against whom a plea of estoppel by conduct was raised to go back on his word or conduct. Consequently, in invoking a plea of estoppel by conduct one has to have regard to the circumstances surrounding the particular conduct which was the subject of the plea. Invariably each case has to be decided on its own peculiar facts.”

9.7 A perusal of the evidence on record depicts that the Defendant continued with the development of the disputed land based on the agreement the parties reached supra. Clearly it was based on the Plaintiff’s conduct of allowing the Defendant to continue with the development of the land that induced the Defendant to incur cost in developing the subject-matter land.

9.8 This conduct of the Plaintiff clearly estops her from claiming the subject-matter land but rather an enforcement of the agreement they entered into for a replacement of the subject-matter land with a new one by the Defendant.

9.9 In the circumstance, I hereby dismiss Plaintiff’s claim and enter judgment for the defendant as follows:

a. An order appointing a valuer to value a comparative land around the disputed land area for the Defendant to pay to the Plaintiff as a replacement within six (6) months.

b. I decree to title to all that land situate at Abessey, Accra and which plot of land covers an area of approximately

 

0.16 acre or 0.07 and bounded on the North-West by Opah Kofi family land measuring 100.0 feet more or less on the North-East by a proposed road measuring 70.0 feet more or less, on the South-East by Opah Kofi land measuring 100.0 feet or less, and on the South-West by Opah Kofi family land measuring 70.0 feet more or less to the Defendant.

c. Perpetual injunction restraining the Plaintiff from any further disturbance of the Defendant in her quiet enjoyment of the disputed land. There will be no order as to cost.