Edward Kofi Ohene v Benjamin Kwamina Mensah and Arnold Tetteh Mensah and George Amonoo

1.0 INTRODUCTION:

The brief facts of this case are that the Plaintiff is a Ghanaian resident at North Kaneshie and unemployed and on Pension at the moment and brings this action per his Lawful Attorney.

1.1 The Defendants are also Ghanaians resident at Kwabenya who claim to be members and agents of the Odai Ntow Family of Kwabenya and hold themselves out as such and are in cahoots with other people to trespass on Plaintiff’s land the subject-matter in dispute.

1.2 The case of the Plaintiff is that sometime in July 1996, he was granted a piece and parcel of land situate at Kwabenya by way of a lease for 99 years by one John Armah Mensah (head of the Odai Ntow family of Teshie) at the material time and the lease was executed with the consent and concurrence of the principal members of the Odai Ntow family at the material time and the land the subject-matter of the lease is described as ALL THAT PIECE AND PARCEL of land situate, lying and being at Kwabenya Accra and bounded on the sides as plots numbers 145 and 151 on the North-East by land measuring 200 feet more or less on the North-West by a proposed road measuring 100 feet more or less or the South-East by lessors land measuring 100 feet more or less and covering an approximate area of 0.46 acre which piece of land is more particularly delineated on the plan attached hereto and therein shewn edged pink.

1.3 After the grant of the land in dispute to the Plaintiff, an indenture of lease was executed in favour of the Plaintiff by the Odai Ntow family per its head of family John Armah Mensah at the material time with the consent and concurrence of the principal members of the Odai Ntow family and the Plaintiff thereafter registered the Indenture of Lease at the Lands Commission as LVB 6853A/98.

1.4 The Plaintiff asserts that after the Indenture of Lease was registered and stamped at the Lands Commission, the Plaintiff applied for a Land Title Certificate to cover the land and after complying with all the procedures of the application, the Plaintiff was issued with a Land title Certificate by the Land Title Registry described as Land Title Certificate No. GA 15600 Vol 74 Folio 16.

1.5 Upon the due acquisition of the land aforesaid, the Plaintiff exercised overt acts of ownership over the land by erecting a fence wall around the land in an attempt to commence development of the land and erected a residential apartment on same. The Plaintiff says that a portion of the fence wall is still visible on the land up to date.

1.6 In further exercise of the overt acts of the Plaintiff on the land in dispute, the Plaintiff erected a 2 bedroom self-contained house presently occupied by one Eric Owusu an in-law of the Plaintiff on a portion of the land and placed a caretaker by name Ernest Yaw Kyei in occupation of another wooden structure on a portion of the land to look after the land which aforesaid wooden structure is still visible on the land at all material times to this suit.

1.7 As further proof of the exercise of overt acts of ownership by the Plaintiff over the land, the Plaintiff cultivated palm trees on the land and plantain which at all material times to this suit was visible until the unlawful trespass by the Defendants, sometime in September, 2018.

1.8 Again as further proof of avert acts of the Plaintiff over the land, the Plaintiff allowed his daughter by name Diana Ohene Amoako to erect a storey building which is uncompleted on a portion of the land which is being occupied by relatives of the Plaintiff particularly a nephew of the Plaintiff by name Yaw Sampong.

1.9 The Plaintiff states that sometime in 25th November, 2011, judgment was delivered in favour of the Odai Ntow family as the allodial owners of the land at Kwabenya of which the land in dispute forms part in a suit entitled NUMO GEORGE ANKONU ADJIN TETTEY V. NII ARYEE ANNANY (SUBSTITUTED BY CHARELS ARMAH CEYLON) AND ORS. SUIT NO. BC/554/07

Coram: Justice H. Ocran which held that for the grant of any Odai Ntow family land to be valid, it must be made by all the principal elders of the Odai Ntow family and the Plaintiff will plead that he is an innocent purchaser for value without notice.

2.0 By a search conducted at the Lands Commission by Patience Asantewaa a daughter of the Plaintiff, the land in dispute is affected by a Land Certificate No. GA 15600 issued to Edward Kofi Ohene, the Plaintiff herein.

2.1 In addition thereto the Plaintiff states that by a High Court judgment entitled:

1. NUMO GEORGE ANKONU ADJIN TETTEY

2. JOSHUA ODAI AMA

3. MOSES TAWIAH ARYEE

4. BEN MENSAH ARMAH

Vrs.

THE EXECUTIVE SECRETARY, LANDS COMMISSION in SUIT NO. FAL/251/2013 Coram: Justice S.H. Ocran delivered on the 10th day of June, 2016, the Plaintiff’s grantors, the Plaintiffs in SUIT NO. FAL/251/2013 therein were declared as the proper persons to grant and allocate Odai Ntow family lands and the High Court further held that the Plaintiff’s grantors are the accredited signatories qualified and competent to grant Nii Odai Ntow family lands as the representatives of the four branches of the Nii Odai Ntow family.

2.2 The Plaintiff also relied on the judgment in the case of PETER MENSAH ANTEH V. 1. SIMEON ARYEETEY GS OKINE 2. EMMNAUEL ODENKEY ABBEY; SUIT NO. 554/78 delivered in 1980 as proof that the Odai Ntow family are the allodial owners of Kwabenya lands of which the land in dispute forms a portion thereof.

2.3 According to the Plaintiff, the High Court judgment in Suit No. FAL/251/2013 also held that the Executive Secretary of the Lands Commission, its agents, servants are restrained from registering grants of Nii Odai Ntow family lands not executed by the Plaintiffs in SUIT NO. FAL 251/2013 referred to aforesaid.

2.4 By the aforesaid judgment, the Defendants’ grantors had no interest or title in the land to transfer to the Defendant, so therefore any such transfer is null and void and of no legal effect.

2.5 The Plaintiff contends strongly that having been in undisturbed and uninterrupted possession of the land in dispute since 1996 up to 2018, the Defendant’s title if any is extinguished by virtue of the Limitation Decree 1972 (NRCD 54).

2.6 The Plaintiff further states that in pursuance of the judgment aforesaid, the Odai Ntow family published in the Daily Graphic on 18th April, 2012 a legal notice inviting lessees in occupation of the lands at Kwabenya to approach the Odai Ntow family to regularise their title to their land.

2.7 The Plaintiff says that in pursuance of the publication, the Plaintiff who is in occupation of Odai Ntow family land situate at Kwabenya approached the Odai Ntow family for regularization of the Plaintiff’s title documents which the Odai Ntow family acknowledged and agreed to regularise the Plaintiff’s documents; to the land and regularization documents are being prepared in the Plaintiff’s name by the Odai Ntow family.

2.8 It is the Plaintiff’s case that in recent times, specifically September, 2018, the Defendants who claim to be members of the Odai Ntow family and in cahoots with one Madam Korkoi Dugbartey and other unknown people have encroached on the Plaintiff’s land which land the Plaintiff has been in uninterrupted possession of since 1996 without challenge from anybody.

2.9 And that as a matter of fact, the Defendants have hired thugs who they have stationed on the Plaintiff’s land to prevent the Plaintiff

from developing his land by firing of gun shots to intimidate the relatives and caretakers of the Plaintiff living on the land.

3.0 The Plaintiff further states that, the Defendants have without notice, authority or consent from the Plaintiff entered the Plaintiff’s land, demolished the Plaintiff’s existing fence wall erected by the Plaintiff and has erected a new fence wall on the existing fence wall on the land.

3.1 In further act of blatant disregard for the law and in further trespass on the Plaintiff’s land, the Defendants have demolished the Plaintiff’s existing palm trees on the land by grading a portion of the land in an attempt to commence development and when the Plaintiff’s caretaker challenged the Defendants’ unlawful encroachment on the land, the Defendants threatened to kill the caretaker the next time the Defendants see the Plaintiff’s caretaker in occupation of the wooden structure erected by the Plaintiff on the land.

3.2 In addition, the Defendants have sent onto the land workers who have dug foundation on a portion of the land without the Plaintiff’s consent and have started developing the land.

3.3 The Plaintiff caused people to inform the Defendants that the land is not a vacant land that they should stop their acts of trespass butthe Defendants have shown signs of lawlessness and have rather relied on the landguards to intimidate the Plaintiff.

3.4 It is also the case of the Plaintiff that the Defendants have also caused their workers to deposit sand, and blocks on the land and the Defendants have commenced the erection of a structure on the land without the consent of the Plaintiff.

3.5 The Plaintiff caused the matter to be reported to the Tiafa Police Station and thereafter the case was transferred to the Police Headquarters of the Ghana Police service and when the Defendants honoured the invitation by the Police, the Defendants could not produce any title document to the land.

3.6 It is also the case of the Plaintiff that unless restrained by the Court, the Defendants will continue with their brazen and lawless acts of trespass on the Plaintiff’s land to the Plaintiff’s detriment. By reason of the matters aforesaid, the Plaintiff claims as per his writ of summons and statement of claim the following reliefs:

(a) Declaration of Title to all that piece and parcel of land situate, lying and being at Kwabenya Accra and bounded on the sides as plots numbers 145 and 151 on the North-East by Lessors land measuring 200 feet more or less on the South-West by lessors land measuring 200 feet more or less on the North-West by proposed road measuring 100 feet more or less on the South-East by lessors land measuring 100 feet more or less and covering an approximate area of 0.46 acre which piece of land is more particularly delineated on the plan attached hereto and therein shewn edged pink.

(b) Recovery of possession.

(c) Damages for trespass.

(d) An order of perpetual injunction restraining the Defendants, either by themselves, their agents, assigns, thugs, hirelings, workmen or otherwise howsoever described from interfering with the Plaintiff’s use and development of the land the subject-matter of this suit.

(e) An order of demolition of all illegal structures erected on the land by the Defendants and surcharge Defendants with cost of demolition.

(f) Cost including solicitors’ fees.

3.7 The 1st and 2nd Defendants resisted the Plaintiff’s claim by causing their solicitors to enter an appearance and also filed a defence on

their behalf. Per their statement of defence the 1st and 2nd Defendants.

3.8 Per their statement of defence the 1st and 2nd Defendants counterclaimed against the Plaintiff as follows:

(a) A declaration of title to the disputed land in favour of the 1st Defendant.

(b) Perpetual injunction restraining the Plaintiff whether by himself, agents, representatives, assigns, workmen or whosoever from intermeddling with the land in dispute.

4.0 At the Application for Directions stage the following issues were set down for determination.

(a) Whether or not the grant of the land in dispute to the Plaintiff and its subsequent regularization by the four lawful heads of the four composite families of the Odai Ntow family is valid.

(b) Whether or not the grant of the land to the 1st Defendant by the 2nd and 3rd Defendants as members of the Odai Ntow family is valid.

(c) Whether or not the Plaintiff was in possession of the land in dispute through a caretaker before the Defendants trespassed on.

(d) Whether or not the Land Title Certificate issued to the Plaintiff by the land Title Registry is valid.

(e) Whether or not the Defendants’ claim to the in dispute is statute-barred under the Limitations Act 1972 (NRCD 54).

(f) Whether or not the grant of the land in dispute to the Plaintiff was prior in time to the grant of the 1st Defendant.

4.1 There is evidence before the court that notwithstanding many opportunities given the Defendants to attend court to contest the Plaintiff’s claim, they failed/neglected/refused to do so for which reason the court proceeded with the trial in their absence.

4.2 The case of the Plaintiff was articulated by his Attorney, one Yaw Sarpong. See Exhibit “A”, a copy of the Power of Attorney.

4.3 It is the evidence of the Plaintiff’s Attorney that the Plaintiff is a relative and the owner of the land in dispute situate at Kwabenya in Accra, And that the Defendants are trespassers on the Plaintiff’s land and hold themselves as members of the Odai Ntow family. He continued that in 1996, the Plaintiff was granted a piece and parcel of land situate at Kwabenya by way of a lease for 99 years by one John Armah Mensah, head of the Odai Ntow family of Teshie at the time with the consent and concurrence of the principal members of the Odai Ntow family.

4.4 That the land granted to the Plaintiff in 1996 is described as ALL THAT PIECE AND PARCEL of land situate, lying and being at Kwabenya, Accra and bounded on the sides as plots numbers 145 and 151 on the North-East by Lessors land measuring 200 feet more or less on the South-West by lessors land measuring 200 feet more or less on the North-West by proposed road measuring 100 feet more or less on the South-East by lessors land measuring 100 feet more or less and covering an approximate area of 0.46 acre which piece of land is more particularly delineated on the plan attached hereto and therein shewn edged pink.

4.5 He also testified that the lease of the land in dispute to the Plaintiff is evidenced by an Indenture of Lease executed in favour of the Plaintiff by the Odai Ntow family per its head of family at the time John Armah Mensah. See Exhibit “B”, a copy of the Lease.

4.6 The Indenture of Lease was then stamped and registered at the Lands Commission as LVB 6853A/98. After stamping and

registering the lease document, the Plaintiff applied for a land title certificate to cover the land and after following the procedure and complying with all the requirements, the Plaintiff was issued a Land Title Certificate by the Land Tile Registry. See Exhibit “C”, a copy of the Land Title Certificate.

4.7 It is his evidence that after the Plaintiff had acquired the land in dispute, the Plaintiff went into possession of the land and exercised overt acts of possession by erecting a fence wall around the land to commence development. See Exhibit “D”, a Picture of the fence wall.

4.8 A portion of the fence wall is still visible on the land up to date. In addition, in further acts of possession on the land, the Plaintiff erected a two bedroom self-contained house on a portion of the land being occupied by one Eric Owusu, an in-law of the Plaintiff. See Exhibit “E”, a photograph of the House.

4.9 And that in further acts of possession on the land, the Plaintiff erected a wooden structure on a portion of the land being occupied by a caretaker of the Plaintiff by name Ernest Yaw Kyei and the wooden structure is still visible on the land. See Exhibit “F”, a photograph of the wooden structure.

5.0 In further acts of possession by the Plaintiff on the land in dispute, the Plaintiff cultivated palm trees and plantain on the land and the palm trees and plantain were visible on the land until the unlawful trespass by the Defendants in September, 2018.

5.1 As further proof of acts of possession, on the land, the Plaintiff allowed his daughter by name Diana Ohene Amoako to erect an uncompleted storey building on a portion of the land.

5.2 The uncompleted storey building is being occupied by relatives of the Plaintiff including Yaw Sampong, a nephew of the Plaintiff. Exhibit “G”, a photograph of the uncompleted storey building.

5.3 It is also his testimony that sometime in November, 2011, whilst the Plaintiff was in possession of the land, judgment was delivered in favour of the Odai Ntow family as the allodial owners of the land at Kwabenya of which the land in dispute forms a part in SUIT NO. BC 554/07 entitled: NUUMO GORGE AKONU ADJIN TETTEY V. NII ARYEE ANNANG (SUBSTITUTED BY CHARLES ARMAH CEYLON) & ORS.

See Exhibit “H”, a copy of the Judgment.

5.4 And that the judgment in Suit No. BC 554/07 held that for the grant of any Odai Ntow family land to be valid, it must be made by

 all the principal elders and heads of the four composite families of the Odai Ntow family. And that the Plaintiff is an innocent purchaser for value without notice.

5.5 It is also his testimony that, one Patience Asantewaa, a daughter of the Plaintiff conducted an official search on the land in dispute and the search disclosed that the land is affected by a Land Title Certificate No. GA 15600 issued to Edward Kofi Ohene, the Plaintiff in this suit. See Exhibit J, a copy of the Search Report.

5.6 And that by a high Court judgment entitled; NUMO GEORGE ANKONU ADJIN TETTEY, 2. JOSHUA ODAI AMA, 3. MOSES TAWIAH ARYEE, 4. BEN MENSAH ARMAH VRS. THE EXECUTIVE SECRETARY, LANDS COMMISSION in SUIT NO.

FAL/251/2013, the Plaintiff’s grantors, the Plaintiffs in Suit No. 251/13 were declared as the proper persons to grant and allocate Odai Ntow family lands. See Exhibit “K”, a copy of the Judgment.

5.7 The High Court also held in Suit No. FAL/251/13 that the Plaintiffs’ grantors are the accredited signatories qualified and competent to grant Odai Ntow family lands.

5.8 The Plaintiff relied on the judgment in the case of PETER MENSAH ANTEH V. 1. SIMEON ARYEETEY G.S OKINE 2.EMMANUEL ODENKEY ABBEY (SUIT NO. 554/78) as proof that Odai Ntow family are the allodial owners of Kwabenya lands of which the land in dispute forms a portion. See Exhibit “L”, a copy of the Judgment.

5.9 That in SUIT NO. FAL/251/13, the court held that the Executive Secretary of the Lands Commission, it agents assigns, servants are restrained from registering grants of Nii Odai Ntow family lands not executed by the Plaintiffs in Suit No. FAL/251/13.

6.0 It is the evidence of the Plaintiff that by the decision in SUIT NO. FAL/251/13 the Defendants grantors had no interest or title to the land to transfer to the Defendants, so therefore any such transfer is null and void. According to the Plaintiff, having been in possession of the land in dispute since 1996 up to 2018, the Defendant’s title, claim or interest in the land if any is extinguished by virtue of the Limitation Decree 1972 (NRCD 54).

6.1 And that after the judgment in Suit No. BC 554/07, the Odai Ntow family published a Notice in the Daily Graphic Newspaper dated 18th April, 2012 inviting all occupants in occupation of the lands at Kwabenya to approach the Odai Ntow family to regularise their title to their land. See Exhibit “M”, a copy of the Notice.

6.2 The Attorney further testified as follows:- the Plaintiff having been in occupation of the land in dispute and having seen the notice approached the Odai Ntow family for regularization of his documents.

6.3 The Plaintiff’s documents have since been regularised by the Odai Ntow family by executing a new lease in favour of the Plaintiff. See Exhibit “N”, a copy of the new Lease.

6.4 The Attorney further testified that in September, 2018, the Defendants who claim to be members of the Odai Ntow family trespassed on the Plaintiff’s land which land has been in the possession of the Plaintiff since 1996. And that the Defendants have hired thugs who they have stationed on the Plaintiff’s land to prevent the Plaintiff from developing his land by firing gun shorts to intimidate the relatives and caretakers of the Plaintiff living on the land.

6.5 In further acts of trespass on the Plaintiff’s land, the Defendants without the Plaintiff’s consent or notice entered the Plaintiff’s land demolished the Plaintiffs existing fence wall erected by the Plaintiff and erected a new fence wall on the existing fence wall on the land. See Exhibit “P”, a photograph of the fence wall.

6.6 The Defendants further trespassed on the land when they demolished the Plaintiff’s existing palm trees on the land by grading a portion of the land to commence development on the land.

See Exhibit “Q”, photographs of the grading and demolition of palm trees.

6.7 When the Plaintiff’s caretaker challenged the Defendants unlawful encroachment on the land, they threatened to kill the caretaker in occupation of the wooden structure. That the Defendants have sent workers onto the land who have dug a foundation on a portion of the land without the Plaintiff’s consent and have started developing the land. See Exhibit “S”, the foundation and developments.

6.8 Also the Defendant have also deposited sand and blocks onto the land and have commenced the erection of a structure on the land without the consent of the Plaintiff. See Exhibit “T”, series, photographs of the sand, blocks and structure.

6.9 The Plaintiff denied the counterclaim of the Defendants. He called a witness in support of his case. In ACKAH VRS. PERGAH TRANSPORT LIMITED AND OTHERS [2010] SCGLR 728, the

Supreme Court stated at page 736 of the report that it is a basic principle of the law of evidence that a party who bears burden of proof is required to produce relevant evidence of the facts in issue, and short of which his claim may fail. In JAAS CO. LTD. AND ANOTHER V. APPAU AND ANOTHER [2009] SCGLR 263, the

Supreme Court, per Dotse JSC stated at page 271 as follows: “Thus, whenever a defendant also files a counterclaim, then the same standard or burden of proof would be used in evaluating and assessing the case of the defendant just as it was used to evaluate and assess the case of the plaintiff against the defendant.”

7.0 This clearly depicts that notwithstanding the absence of the Defendants, the Plaintiff is still obliged to prove his claim. There is evidence before the court that the Plaintiff has a Land Title Certificate covering the disputed land. See Exhibit “C”, a copy of the Land Title Certificate.

7.1 The Plaintiff further demonstrated that after the acquisition of the subject land, the Plaintiff took possession of the subject land by putting up structures on the land.

7.2 In the circumstance, I hold that the Plaintiff is entitled to the reliefs he is seeking against the Defendants for which reason I enter judgment for him on his reliefs save relief “E”. I award the

Plaintiff GhS30,000.00 as damages. Cost of GhS20,000.00 in favour of the Plaintiff and against the Defendants. The Defendants counterclaim is dismissed.