Elizabeth Asaam and Esther Sahadatu Salam v Tema Development Corporation, Joseph A. Abbey and Col. Ishmael Salifu (Rtd)

INTRODUCTION

 

[1] The 1st Defendant, Tema Development Corporation is an organisation incorporated under the laws of Ghana whose core business includes the planning, development, construction and management of parcels of land in the Tema Metropolis. The 1st Defendant owns the land called the Tema Acquisition Area including the land described as Adjei Kojo, under a lease from the Government and dated 21st March, 1956. The 1st Defendant allocates portions of its lands to prospective developers. Plaintiffs claim to have acquired portions of the 1st Defendant’s land and subsequently constructed dwelling houses but the 1st Defendant unlawfully demolished them.

Pleadings of Plaintiffs.

[2] Per their amended Statement of Claim filed on 26th October 2017, the Plaintiffs aver that 1st Plaintiff is the bona fide owner of the approximately 20 acres of TDC land surveyed and numbered into 99 TDC building plots situate, lying and being at Community 23, specifically at sites F and L respectively and popularly called Adjei Kojo Farms at Santeo which sites are within the Tema Metropolis.

[3] It is the case of the Plaintiffs that the 1st Defendant had in the early 1990s granted portions of its TDC lands near the Plaintiff’s 20 acres (99 TDC plots) in Adjei Kojo at Santeo to one Ibrahim Daitey. According to Plaintiffs, Ibrahim Daitey who had in the 1990s already built his residential apartment on the land, granted a portion of his (Ibrahim Daitey) land to 1st Plaintiff. That, 1st Plaintiff having acquired same from Ibrahim Daitey continued to farm the land and built her residential home on it without let or hindrance.

[4] According to 1st Plaintiff for several years, the two of them and their families were in full possession of the land protecting same and warding off encroachers while the whole area began gradually to spring up with building development attracting all manner of deadly land guards who had taken total control over the 200 acres TDC lands in the area such that the 1st Defendant and their task force and employees completely deserted the said lands and gave up hope of recovering it.

[5] According to 1st Plaintiff, the 1st Defendant having deserted the land owing to the invasion of deadly land guards was surprised that the 1st Plaintiff still lived on the land wherefore the Defendants on their own volition offered and promised 1st Plaintiff that if she is able to fight off and clear off the deadly land guards, the 1st Defendant would reward her with 20 acres out of their over 200 acres in the area.

[6] It is the case of the 1st Plaintiff that, the 2nd Defendant representing the 1st Defendant called her and her family to the 2nd Defendant’s office and in the presence of some of the 1st and 2nd Defendants’ officers, he repeated the offer to reward her with 20 acres out of their 200 acres of land in the area and the 1st Plaintiff agreed and took up the challenge. According to 1st Plaintiff, she granted portions of the land to 2nd Plaintiff and a few others from whom 1st Plaintiff borrowed money to fight off the land-guards

[7] According to 1st Plaintiff on the said commitment and offer she mobilised resources and successfully secured the entire 200-acre land in the area. That after securing the land for the 1st Defendant, the Defendants highly recommended her and in fulfilment of their promise the 1st Defendant rewarded her with the 20 acres piece of land aside the parcel of land Ibrahim Diatey had granted her. That 1st Defendant confirmed the same by detailing its surveyors to the land, surveyed it and allocated same into her name and issued an official allocation site plan in her name leaving the final lease to be issued which the 1st Defendant promised to do in no time.

[8] According to 1st Plaintiff in the course of her dealings with the 1st Defendant, the first Defendant informed her that Ibrahim Daitey’s land granted him was 4.8 acres and the 1st Defendant and its officials including the 2nd Defendant advised that she apply for change

 

of use of the land so that they could register it for her. The 1st Plaintiff successfully applied for a change of ownership of the said land.

[9] It is the further case of the Plaintiffs that on or about the 26th day of November 2013, the 1st Defendant acting through the 2nd and 3rd Defendants respectively without recourse and notice to them, trespassed unto the said parcel of land in question and demolished completed 4 dwelling houses being properties belonging to the 1st and 2nd Plaintiffs and their servants.

[10] The Plaintiffs by their amended Writ of Summons and Statement of Claim pursuant to an order of the court dated 13th October 2017 and filed on 26th October 2017 therefore claim against the Defendants the following reliefs:

a. A declaration that the 1st defendant having already allocated 20 Acres TDC (99 building plot) to the 1st Plaintiff in fulfilling its promise/offer and reward for which the Plaintiff provided valuable consideration including sacrificing her life, the 1st Defendant is estopped from now denying 1st Plaintiff’s ownership of same and further estopped from granting same to 3rd parties.

b. A declaration confirming the 1st Plaintiff as the owner of the 20 Acres TDC(99 building Plots) clearly demarcated and numbered TDC Plots No. 1 to Plot No. 99 by the TDC for Plaintiff situate, lying and being at Community 23, specifically at site F&L respectively and popularly called Adjei Kojo/Santoe as well as 0.14 Acre land situate in the self-same area adjoining the 99 building plot.

c. An order directing and compelling the 1st Defendant to issue a final lease to the 1st Plaintiff’s 99 TDC building plots and the approximately 1.48 acres of land or in the alternative compensate Plaintiffs in its prevailing market value.

d. An order of Perpetual injunction restraining Defendants whether by themselves, agents, employees, servants, assigns, grantees and or any person(s) or entities claiming through, under it in trust for them from entering upon any portion of the subject land ( i.e. 20 Acres 99 building plot 1 to plot 99 ) making grants or engaged in any form of development.

e. General damages for trespass and losses suffered including valuables by plaintiffs.

f. Special damages of GH¢120,000.00 being the cost of 4 demolished houses at the time of the demolition and interest on same from date of demolition till date of final payment in favour of the plaintiffs.

g. Any other Order(s) as the Honourable Court may seem just and costs including Solicitors fees.

1st Defendant’s Pleadings

[11] Per the amended Statement of Defence filed on 6th December 2017 by the 1st Defendant, it denied the claim of the Plaintiffs in its entirety. According to 1st Defendant, it owns the land called the Tema Acquisition Area including the land described as Adjei Kojo, under lease from the Government dated 21st March 1956 and registered as No. X2111/1 which it is mandated to plan, develop and manage. It is the case of the 1st Defendant that as the owner of the said land in Adjei Kojo including the disputed plots, it obtained judgment against the Chief of Adjei Kojo at the High Court in the case of Nii Otoo Kwadjan & 2 Ors. Vs. TDC & Anor. (Suit No. LS.26/2000) dated 23rd February 2003 which was affirmed by the Court of Appeal on 17th January, 2008.

[12] According to 1st Defendant, it granted a farmland measuring 4.82 acres to Ibrahim Daitey, now deceased, sometime in 1996 for a term of 10 years, which was renewed for a further term of 10 years in April 2002. That by an application dated 24th August 2005, the said Ibrahim Daitey sought the consent of the 1st Defendant to transfer the farmland to 1st Plaintiff.

[13] It is the case of the 1st Defendant that due to the impending development of the area into a site and services scheme to create its communities 23 and 24, and the fact that the term remaining on the lease was short, the request was not immediately processed.

[14] The 1st Defendant contends that an application for transfer of the land did not automatically transfer same to the 1st Plaintiff and if she developed the land as she alleged, without waiting to acquire the legal interest in same and obtaining a development permit, then she has only herself to blame for the any consequence arising therefrom.

[15] According to 1st Defendant, it was to curb encroachment on its land at Adjei Kojo, Santeo and Borteyman that it commenced development of its Communities 23 and 24. It used a combination of personnel from its task force, the military and National Security to fight off land guards and encroachers from the area.

[16] It is the case of the 1st Defendant that the 1st Plaintiff has no interest in any land in the area apart from the farmland sought to be transferred to her by Ibrahim Daitey and that she fought off the interference of land-guards in that farm land to protect her equitable interest in same.

[17] According to 1st Defendant after it recovered its land in the area, and in recognition of the 1st Plaintiff’s efforts at warding off encroachers on the farmland, the 1st Defendant proposed to offer the 1st Plaintiff 14 residential plots (1.45 acres) in line with the zoned user of land in the area, including structures contained on the land, at a discounted fee.

[18] According to Defendants the 1st Plaintiff in agreement with the proposal, formally applied for residential plots by an application dated 2nd May, 2013 but subsequently failed to accept the proposal. The 1st Defendant contends that its combined patrol team carried out legitimate demolitions of unauthorised structures on its land within Communities 23 and 24 and the demolition was done in good faith.

[19] According to 1st Defendant, 1st Plaintiff had no right to alienate any land to anyone when she had no title to same and the alleged assignees ought to have investigated her title. The Defendants did not counterclaim. The 2nd and 3rd Defendants did not enter appearance and did not take part in the proceedings.

[20] The following issues were settled for the determination of the suit.

1. Whether or not the 2nd Defendant is the directing and controlling mind of the 1st Defendant in its operations and decides day-to-day activities and decisions taken or implemented in the name of the 1st Defendant.

2. Whether or not 1st Defendant had in the early 1990s granted portions of its TDC lands at Adjei Kojo, Santeo to one Ibrahim Daitey and if 1st Defendant granted portions of its to Ibrahim Daitey what was the acreage of the said land.

3. Whether or not Ibrahim Daitey in 2004 granted 1st Plaintiff a lease of portions of his land.

4. Whether or not the 1st Defendant completely deserted their 200 acres of land owing to the invasion of deadly land-guards

5. Whether or not the 2nd Defendant representing the 1st Defendant offered to reward the 1st Plaintiff with 20 acres out of the 1st Defendant’s 200 acres if she was able to fight off and clear off deadly land guards from 1st Defendant’s land.

6. Whether or not the 1st Plaintiff accepted the Defendants’ offer and fought off and cleared the land guards in anticipation of the promised 20 acres of land offered by the 1st Defendants.

7. Whether or not the Defendants having awarded the 1st Plaintiff with the agreed 20 acres (99 numbered TDC plots) pursuant to their offer/promise which the 1st Plaintiff accepted, can now purport to want to grant the same to 3rd parties.

8. Whether or not the 1st Defendant acting through the 2nd and 3rd Defendants without recourse or notice to the 1st Plaintiffs trespassed unto 1st and 2nd Plaintiffs’ land and completely demolished four (4) dwelling houses belonging to Plaintiffs.

9. Whether or not the 1st Plaintiff is the bona fide owner of the 20 acres TDC land surveyed and numbered in 99 TDC building plots located at Community 23 site F and L respectively.

10. Whether or not the Defendants are estopped from denying the 1st Plaintiff’s ownership of the land in dispute and repossess same.

11. Whether or not the Plaintiffs have suffered damages as a result of the unlawful conduct the Defendants perpetrated on the properties.

[21] ISSUE 1: Whether or not the 2nd Defendant is the directing and controlling mind of the 1st Defendant in its operations and decides day-to-day activities and decisions taken or implemented in the name of the 1st Defendant.

[22] From the facts and evidence, there is no doubt that the 2nd Defendant was the Managing Director of the 1st Defendant Corporation at the material time of the matters herein. It is trite that as the Managing Director, he is the most senior Executive Leader and responsible for the day-to-day operations of the Company. However, as the senior-most Executive and the one responsible for the day-to-day running of the company, in terms of the principle of the separate legal entity of a company, he is not personally liable for the liabilities of the company except in circumstances where the veil of incorporation is lifted on stated grounds.

 

[23] The Company Law principle that a company is a separate legal entity separate at law from its Shareholders and Directors was applied in the case of Morkor v Kuma [1998-99] SCGLR 620 at page 632 where the Supreme Court per Sophia Akuffo JSC (as she then was) stated as follows:

A Company is, thus a legal entity with a capacity separate, independent and distinct from the persons constituting it or employed by it. From the time the House of Lords clarified this cardinal principle more than a century ago in the celebrated case of Salomon v Salomon & Co [1897] AC22, it has, subject to certain exceptions, remained the same in all Common Law Countries and is the foundation on which our Companies Code, 1963 is grounded.

[24] Even though the 2nd and 3rd Defendants did not contest the case, as employees of the 1st Defendant Corporation, the 1st Defendant is a separate legal entity and distinct from the 2nd and 3rd Defendants. The 2nd and 3rd Defendants, therefore, are not liable for the acts, omissions and liabilities of the 1st Defendant Corporation. They were and they were improperly joined to this suit.

[25] ISSUE 2: Whether or not 1st Defendant had in the early 1990s granted portions of its TDC lands at Adjei Kojo, Santeo to one Ibrahim Daitey and if 1st Defendant granted portions of its to Ibrahim Daitey what was the acreage of the said land.

[26] It is the case of the 1st Plaintiff that the 1st Defendant granted 20 acres of 1st Defendant land at Adjei Kojo to one Ibrahim Daitey. The 1st Defendant does not deny granting a portion of its farmland to Ibrahim Daitey, what they deny is the claim of the 1st Plaintiff that it was 20 acres that was granted to Ibrahim Daitey.

[27] It is pleaded at paragraphs 6 and 7 of the amended Statement of Claim as follows:

 

6. The 1st Plaintiff says that the 1st Defendant had in early 1990s granted portions of its TDC lands near 1st Plaintiff’s 20-acre (99 TDC plots) in Adjei Kojo at Santeo to one Ibrahim Diatey whom was at the time known to plaintiff for over a decade and had farming [on] the land. The Plaintiff say, Ibrahim Daitey who had in the 1990s already built his residential apartment on the land and granted 1st Plaintiff lease out of portion of his land in 2004 which was an entirely abandoned bushy area whereupon the 1st Plaintiff having acquired same continued to farm the land built her residential home on it without any let or hindrance.

[28] 1st Defendant in response to paragraphs 6 and 7 of the Statement of Claim pleaded at paragraphs 7 and 9 of the Statement of Defence as follows:

7. The 1st defendant vehemently denies paragraphs 5, 6 and 7 of the statement of claim and puts the 1st Plaintiff to strict proof of the averments contained therein.

9. The 1st Defendant says that it granted a farmland measuring 4.82 acres to Mr. Ibrahim Daitey, now deceased, sometime in 1996 for a term of 10 years, which was renewed for a further term of 10 years in April 2002.

[29] The Plaintiffs claim that the 1st Defendant in the 1990s granted a 20-acre land at Adjei Kojo to one Ibrahim Daitey. The 1st Defendant has denied ever granting 20 acres of land to Ibrahim Daitey. The law is that if a party makes an averment or assertion which is denied, he has the burden to establish his averment or assertion if he wants to succeed he does so by adducing credible evidence in proof of his averment or assertion.

[30] In Wrangler Ghana Ltd v. Spectrum Industries Pvt. Ltd, Lands Commission [2023] DLSC 16164 the Court per Asiedu JSC held as follows:

 

Thus, within the meaning of sections 12,13,14 and 17 of NRCD 323 as quoted above, whenever a party to a civil suit makes positive averment which is crucial to a claim or defence which he had asserted in his pleading and which had been denied by his opponent and the party wishes to succeed on that claim or defence, then the law enjoins that party to adduce that kind of credible evidence, in relation to the assertion made, within the meaning of Section 17 as quoted above, which will establish that degree of belief in the mind of the court, in accordance with the provision contained in Section 12 of NRCD 323, that the existence of the fact(s) which he had been asserted (but which had been denied by his opponent) is more probable than its non-existence.

[31] So, in the circumstances of this case where the 1st Defendant has denied the assertion of the 1st Plaintiff that Ibrahim Daitey obtained a 20-acre land from the 1st Defendant, the Plaintiffs have to lead credible and sufficient evidence in support of the assertion that his grantor Ibrahim Daitey had a grant of 20-acres land from the 1st Defendant failing which her claim will fail.

[32] The 1st Plaintiff in her evidence-in-chief testified as follows:

In the 1990s, Mr. Ibrahim Daitey, now deceased, acquired at least 20 acre land from the 1st Defendants at Santeo in Adjei Kojo, Ashaiman (this was later converted into Community 23). At that time, the place was a completely abandoned bush enclave. Mr Daitey built his residence on a portion of he (sic) acquired and the place became his permanent village.

[33] The claim of 1st Plaintiff that Ibrahim Daitey obtained a grant of 20 acres of land from the 1st Defendant is capable of positive proof and she has to do so by producing the kind of evidence required by law in proof of her assertion. It is trite law that, matters that are capable of proof must be proved by producing sufficient evidence so that on all the evidence a reasonable mind could conclude that the existence of the fact is more probable than its non-existence. This is a requirement of the law of evidence under sections 10(1) and (2) and 11(1) and (4) of the Evidence Act, 1975 (NRCD 323). See Ackah v Pergah Transport Ltd & Others [2010] SCGLR 728 at 736 the Supreme Court per Adinyira JSC.

[34] On this issue, the 1st Plaintiff tendered in evidence Exhibit ‘A’. Exhibit ‘A’ is a Right of Entry issued by the 1st Defendant to Ibrahim Daitey in respect of Plot No. AGR/2606 which was allocated to Ibrahim Daitey by the 1st Defendant. The acreage of the land allocated to Ibrahim Daitey for which Exhibit ‘A’ was issued is 4.82 acres. The Plaintiff was granted access to the land with effect from 1st April 2002.

[35] Under cross-examination of 1st Plaintiff on 12th March 2024, the following took place:

Q. And you have also stated in your Witness Statement that Mr. Daitey acquired a 20-acre land from the 1st Defendant. Is that right?

A.  That is so.

Q. And I guess at the time you wanted to purchase the land from the said Daitey you were shown documents covering his interest over the 20-acre land.

A.  Yes, that is true.

Q. Do you have a copy of these documents attached to your Witness Statement.

A. Yes, it is part of my Witness Statement.

Q. Please can you look at Exhibit A. Is that the document that you were shown by Mr. Daitey over the land you claimed he purchased from TDC i.e. 1st Defendant.

A.  No. He gave me a document which he said was Right of Entry and I took it to TDC, 1st Defendant to verify if it belongs to Mr. Daitey and whether I can buy it. They asked me to go and ask Emmanuel Martey who is a surveyor whether he can help and ask him if I can purchase the land and he told me the land belongs to Mr. Daitey so I can buy it.

Q. I am putting it to you that Exhibit A is the Right of Entry document which was granted to Mr. Ibrahim Daitey by the 1st Defendant.

A. The document that was shown to me is not clear but what Mr. Daitey gave me was clearer than this and he told me that was the Right of Entry.

Q.  This Right of Entry you yourself have exhibited to your Witness Statement.

A.  Yes, I brought it but it was clear.

Cross-examination on 14th March 2024

Q. Looking at Exhibit A, the document that was shown to you by Mr. Ishmael Daitey confirms the acreage of the property given to him by TDC, am I right?

A.  Mr. Daitey told me he has 20 acres of land. But what I see on the document is 4.82 acres. When he told me he had 20 acres he brought the TDC surveyor to demarcate the lands with roads and he gave me documents with a site plan and after he gave me the land, land guards came to the whole area.

 

Due to that, I went to TDC with Ibrahim Daitey to see Mr. Darkey to report the issue.

Q. I am putting it to you that Mr. Daitey never had any 20-acres land from TDC, from your own Exhibit A.

A. Yes, Mr. Daitey did not have 20-acres of land but when I said I wanted to regularize the land with the MD, the MD told me Daitey does not have 20 acres but 4.82 acres but said I heard you are fighting for the whole area but I have agreed to it before I will help you and go and fight after the fight if you are successful I will create community 23 and 24 at that place and he told me what he asked me to do I have done it and so this is the documents which shows that he has given me the 20 acres and also gave me a file number.

[36] On this issue, the 1st Defendant’s representative testified as follows:

The 1st Defendant granted farmland measuring 4.82 acres to Mr. Ibrahim Daitey, now deceased, sometime in 1996 for a term of 10 years, which was renewed in 2001 for a further term of 10 years effective 1st April 2002.

[37] From the oral and documentary evidence of the 1st Plaintiff, the Plaintiffs admit that Ibrahim Daitey did not have 20 acres of land from the 1st Defendant but had 4.82 acres of land. The evidence of the 1st Plaintiff corroborates the evidence of the 1st Defendant that the size of the land granted to Ibrahim Daitey was 4.82.

[38] The law is that where an adversary has admitted a fact advantageous to the cause of a party, the party does not need any better evidence to establish that fact than by relying on such admission which is an example of estoppel by conduct. See the case of Asere Stool Per Nikoi Olai Amontia v. Akotia Oworsika Iii (Substituted By) Laryea Ayiku III,[ 2005-2006] SCGLR 837.

[39] In the instant case, the 1st Plaintiff admitted that the size of land granted to Ibrahim Daitey by the 1st Defendant was 4.82 acres the 1st Defendant does not need any better evidence than relying on the admission of the 1st Plaintiff. However, the 1st Defendant led further evidence on this issue.

[40] The 1st Defendant’s representative tendered in evidence Exhibit 4. Exhibit 4 is an allocation letter dated 12th October 2001 and addressed to Mr. Ibrahim Daitey. The acreage of the said land allocated to Ibrahim Daitey was 4.82 acres (I.5 HA). The term is 10 years commencing from the date of right of entry with an option for a further term of two (2) years subject to the 1st Defendant’s programme of development.

[41] In civil cases, it is trite law that the parties are required to prove their respective cases on the preponderance of probabilities.

Section 12 (1) of the Act provides as follows:

‘Except as otherwise provided by law, the burden of persuasion requires proof by a preponderance of probabilities.’

Section 12(2) of the same Act explains what ‘preponderance of probabilities’ is as follows: ‘Preponderance of 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.’

 

[42] Amadu J.A (as he then was) explained section 12(2) in relation to the burden of proof in civil actions in the case of Edmund Danso v Moses Adjei (2013) GMJ 71 @ 96-97 thus:

‘I think in order to dismiss the Appellant’s claim, the trial judge allocated a far higher burden on the Appellant than she was statutorily required to discharge as if by law to prove per her claim to a standard beyond all reasonable doubt. This is wrong because, being a civil suit, the rules of evidence require the Appellant herein, produces sufficient evidence to make out a claim on a preponderance of probabilities as defined in Section 12(2) of NRCD 323 and in assessing the balance of probabilities all the evidence be it of the Appellant’s or Respondent’s must be considered and the party in whose favour the balance tilts is the person whose case ought to be adjudged as more probable of the rival version and deserving of a favourable verdict….’

[43] In considering the evidence of the 1st Plaintiff and the evidence of 1st Defendant’s representative, I take the view that on the balance of the probabilities the evidence on this issue tilts in favour of the 1st Defendant and I find and hold the 1st Defendant granted a

4.82 farmland to Ibrahim Daitey and not 20 acres as claimed by the Plaintiffs.

[44] ISSUE 3: Whether or not Ibrahim Daitey in 2004 granted 1st Plaintiff a lease of portions of his land.

It is the case of the 1st Plaintiff that in 2004, Ibrahim Daitey granted a portion of his (Ibrahim Daitey’s) land to the 1st Plaintiff.

[45] The 1st Plaintiff testified as follows:

 

I met Mr. Daitey in early 2000 on his farm land. The entire land area was his farm land and the rest a thick bush (a light forest). So, when I met Mr. Daitey, he was already occupying his land for years. I have strong likeness for greenly forest settings. In 2002, I offered to lease part of his land to build a dwelling place for my family and for future estate development projects.

Mr. Daitey agreed to sell about 20 acres out of his land to me regarding which I paid £10,000 and ¢180,000.00 in instalment. I started paying in instalment from January 2002 to I finished paying in 2004. In 2006, Mr. Daitey executed a lease for covering 20 acres and made me pay for the extra 5 acres.

[46] The 1st Plaintiff tendered in evidence Exhibit B series in support of her claim that Ibrahim Daitey sold a 20-acre Plot to her. Exhibit B and B4 are receipts dated 18 August 2003 and 14 November 2004 respectively and issued by Ibrahim Dominic Daitey to 1st Plaintiff for the amounts of ¢180,000.00 and £10,000 being full payment of the cost of a 20-acre plot located at Adjei Kojo Farms. Exhibit B1 is a Statutory Declaration by Ibrahim Daitey declaring that he has sold Plot No W/53 (TDC) TPD/T/11190 to the 1st Plaintiff and requesting 1st Defendant to cause a formal change of ownership into 1st Plaintiff’s name.

[47] Exhibit B2 is also a Statutory Declaration by Ibrahim Daitey transferring ownership of a 15-acre plot situate, lying and being at Adjei Kojo Farms near Santeo to 1st Plaintiff. Exhibit B3 is an application by Ibrahim Daitey to 1st Defendant requesting 1st Defendant to change ownership of Plot No. TPD/TAGR/11190(TDC) (AGR 2606) to Elizabeth Assam the 1st Plaintiff. Exhibit B4 is a receipt issued by Ibrahim Daitey for the payment of £10,000 by Elizabeth Asaam for 20 acres of land.

[48] 1st Plaintiff also tendered in evidence Exhibit C. Exhibit C is a lease dated 14th January 2006 and made between Ibrahim Daitey as lessor on one side and Elizabeth Asaam as lessee on the other side. The subject matter of the lease is a 20-acre land situate and lying

 

at Adjei Kojo Farms. The term of the lease is 99 years. The lessor in Exhibit C, Ibrahim Daitey does not give his root of title.

[49] Exhibit C partly provides as follows:

NOW THIS INDENTURE WITNESSETH as follows:

IN CONSIDERATION of the rent hereby reserved and performed observances for the various covenants conditions and stipulations on the part of the Lessee to be paid, performed and observed the Lessor hereby DEMISE UNTO the Lessee ALL THAT PIECE OF PARCEL OF LAND situate lying and being at Adjei Kojo Farms, near Santeo in the Greater-Accra Region aforesaid the boundaries whereof are described and delineated on the plan annexed hereto and thereon shewn edged Pink and having on the whole an Area of 20 acres TOGETHER WITH all rights and easements and to the use of the Lessee for the term of NINETY-NINE (99)

YEARS…

[50] Exhibit C refers to the land delineated on a site plan attached to the lease and shewn pink. However, there is no such site plan attached thereto. There is no schedule that describes the land purportedly leased to the 1st Plaintiff by Ibrahim Daitey. The effect is that Exhibit C does not transfer any title or interest in any identifiable land to 1st Plaintiff.

[51] In his book Land Law, Practice and Conveyancing in Ghana, third edition, the author Dennis Dominic Adjei at page 277 had this to say on a lease:

A landlord with an indefinite or customary freehold or usufruct or allodial interest in a land may define a specific area of the land or the entire land and allocate same to a lessee for a specific duration and further give exclusive possession of the property to the lessee. According to A.J. Oakley in Megarry”s Manual of the Law of Property, a lease must have four feature, which are:

 

(a) the land must be well defined to make its identity certain;

(b) the lessee must have the right to exclusive possession of demised property during the subsistence of the lease;

(c) fulfilment of the requirements of a valid lease including reducing it into writing and being signed by the parties of their agents; and

(d) certainty of duration of the leasehold.

The four essentials of a lease are important and each of them needs to be well explained to ensure that any lease that possesses the above essentials would not be rendered void.

[52] In the instant case, Ibrahim Daitey did not have a customary freehold or usufruct or allodial interest in the land leased to him by 1st Defendant. He obtained a 10-year lease of land from the 1st Defendant and he could not have leased the same land to the 1st Plaintiff as a lessor or like someone who had a customary freehold or usufruct or allodial interest in the land. He could only have assigned the residue of his 10-year leasehold interest, in the land to 1st Defendant or could have made a sublease to 1st Plaintiff which sublease could not have been more than the remainder of his term in the lease granted by 1st Defendant.

[53] As said earlier, Exhibit C does not give any description of the land leased to 1st Plaintiff by Ibrahim Daitey. Exhibits B and B4 are receipts in respect of monies received by Ibrahim Daitey for 20-acre land allegedly sold by him to 1st Plaintiff which culminated in the execution of Exhibit C.

[54] The law is that receipts issued in respect of land transactions are given effect even though they are not instruments affecting land. However, in the present case, even though Exhibit B and B4 mention 20 acres of land at Adjei Kojo as the land sold to 1st Plaintiff, they do not describe the land that was sold. These exhibits also fall in the same error and defect as Exhibit C and in my view are incapable of transferring any interest in land to the 1st Plaintiff. I find and hold that Exhibit C does not transfer any title or interest in any identifiable land to 1st Plaintiff

[55] Exhibit B1 describes the land, and it is a Statutory Declaration and Ibrahim Daitey declares that he has sold Plot Number W/53(TDC) TPD/T/AGR/11190 (AGR 2606) to the 1st Plaintiff. Plot No. AGR 2606 is the land for which the Right of Entry was granted Ibrahim Daitey by 1st Defendant. By Exhibit B1, Ibrahim Daitey transferred his interest in the land to 1st Plaintiff. Exhibit B3 is a letter informing the 1st Defendant that Ibrahim Daitey has transferred his interest in Plot No. AGR 2606 to the 1st Plaintiff and requesting 1st Defendant to effect a change of ownership in favour of 1st Plaintiff.

[56] However, Ibrahim Daitey had only 4.82 acres of farmland from the 1st Defendant as evidenced by Exhibit 4. Exhibit 4 is dated 12th October 2001 and the term of the allocation was 10 years commencing from the day the right of entry is granted to the lease with an option to renew for a further term of 2 years. The right of Entry was granted on 28th March 2002 and it took effect from 1st April 2002. So, in 2004 when Ibrahim Daitey purported to transfer his interest in the land to 1st Plaintiff, the unexpired term of the lease was 8 years. Again, by the terms of Exhibit 4, the land leased to Ibrahim Daitey was for agricultural purposes and not for residential even though he was permitted to commence building operations for farming purposes. Clause IV provides as follows:

USER: The land shall be used for mixed farming only.

[57] The 1st Plaintiff could have acquired only 8 years unexpired term of the interest of Ibrahim Daitey and nothing more in a farmland. Ibrahim Daitey could not grant more

 

than the unexpired term of his lease to the 1st Plaintiff and he could also not have granted a residential plot to the 1st Plaintiff when his lease from the 1st Defendant was in respect of a farmland.

[58] Again, clause vi (d) provides as follows:

The lessee shall not be permitted to sublet or transfer the whole or part of the vacant land or assign the lease.

[59] So, by the terms of the lease of the farmland granted to the 1st Plaintiff by the 1st Defendant, Ibrahim Daitey was not permitted to sublet, transfer the land or assign the lease. There is evidence that Ibrahim Daitey and 1st Plaintiff applied at different times to 1st Defendant to allow Ibrahim Daitey to transfer his interest in the land acquired by him from 1st Defendant to 1st Plaintiff. See Exhibits B1 and B3. There is no evidence that Ibrahim Daitey obtained the consent of the 1st Defendant to lease or transfer his interest in the land to the 1st Plaintiff. Ibrahim Daitey made attempts to seek permission or consent to transfer his interest in farmland granted to him to the 1st Plaintiff but that consent was not granted by the 1st Defendant.

[60] The 1st Defendant’s representative testified that in 2005 Ibrahim Daitey applied for consent to transfer his interest in the farmland to the 1st Plaintiff but due to the impending development of the area into a site and services scheme to create 1st Defendant’s communities 23 and 24 and coupled with the fact that the term remaining on the lease was short, the request was not processed. He also testified further that the 1st Plaintiff repeated the application in 2010 but the same was not granted.

[61] However, from the subsequent conduct of the 1st Defendant would be estopped from denying the 1st Plaintiff’s interest in and occupation of the land. 1st Plaintiff tendered in evidence Exhibit G without objection. The contents of Exhibit G indicate that the 1st

 

Defendant acknowledged and accepted the transfer of Ibrahim Daitey’s interest in the

4.82 care farmland to the 1st Plaintiffs. I will reproduce Exhibit G for its full meaning and purport.

[62] I will come back to exhibit G in the discussions of the other issues later in this delivery.

P.O.46

EMA-GHANA TEL:233(22)202731-4

FAX: 233(22)202737

233(22)207162

E-

mail:tdc@tdc.org.gh

29/10/10

THE SUPERINTENDENT GHANA POLICE ASHAIMAN

Dear Sir,

RE: REQUEST FOR ASSISTANCE

GEORGE KOFI ASARE VRS ELIZABETH ASAM

Reference to your letter dated October 22nd, 2010 and received on October 26th 2010, in connection with the above mentioned subject.

 

As indicated on the attached layout, all the plans submitted fall within the Tema Acquisition Area, at Community 23.

The tenurial interest of Madam Elizabeth Asam and Ibrahim Daitey originated from the allocation of a farm land to Ibrahim Daitey by Tema Development Corporation around 1996. That of Agbintso Borketey did not originate from Tema Development Corporation.

All the site plans for all the parties fall within the Tema Acquisition Area, which area is public land under the sole management of the Tema Development Corporation. It is only Tema Development Corporation that can make valid alienations of portions of the land with (sic) the Acquisition Area.

Whiles the plan bearing the name Agbinsto Borketey family appendix C and D (edged green) on the attached layout falls within the property of Trasaco, that for Elizabeth Asam ‘A’ and Ibrahim Daitey ‘B’ (edged pink and cyan respectively) falls within Community 23. ( bold italics mine)

Hope this information would serve the purposes it is intended for Thank you

Yours faithfully,

Sgd

(Joe Abbey)

Managing Director

[63] It must be noted that Exhibit G was in response to a request by the Ghana Police, Ashaiman to the 1st Defendant about the ownership of a piece of land at Community 23

 

in respect of a complaint made by 1st Plaintiff against one George Kofi Asare who had allegedly trespassed on a portion of the land granted to 1st Plaintiff by Ibrahim Daitey. By paragraphs 3 and 5 of Exhibit G, the 1st Defendant acknowledged and accepted that 1st Plaintiff Elizabeth Asaam had acquired an interest in TDC lands and her acquisition was derived from the grant made by 1st Defendant to Ibrahim Daitey. Having acknowledged and accepted 1st Plaintiff’s interest in the land as derived from the interest of Ibrahim Daitey, the 1st Defendant cannot now deny the interest of 1st Plaintiff in the said land albeit the unexpired term of Ibrahim Daitey in the farmland granted to him by 1st Defendant which interest expired 10 years after 1st April, 2012.

[64] Section 26 of the Evidence Act (supra) provides as follows:

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

(a) that party or the successors in interest of that party, and

(b) the relying person or successors in interest of that person.”

[65] This estoppel by conduct is a principle of law which prevents a party from taking unfair advantage of another when by his conduct he has induced another person to act in a certain way, with a result that that other person has been injured in a way. In Moorgate Mercantile Co Ltd v Twitching (1975) 3 ALLER 314, at Page 323 CA Lord Denning MR explained it thus;

“Estoppel….. is a principle of justice and equity. It comes to this. When a man by his words and conduct has led another to believe in a particular state of affairs, he will not be allowed to go back on it when it would be unjust or inequitable for him to do so.

In the Ghanaian case of Sasu v. Nyaduala [1973] 1 GLR 221 Apaloo JA (as he then was) on this subject opined as follows:

“A party should be held to any act or statement which it would be unconscionable to permit him to deny”.

[66] In the instant case, by the contents of Exhibit G, which was authored by the 1st Defendant through its agent, the Managing Director, the 1st Defendant acknowledged the interest of the 1st Plaintiff in the land having acquired the same through Ibrahim Daitey. The 1st Defendant would be estopped from denying 1st Plaintiff’s interest in the said land.

[67] On the evidence, I find and hold that 1st Plaintiff acquired an interest in TDC farm lands and 1st Defendant therefore cannot deny the interest of 1st Plaintiff in the said land albeit the unexpired term of Ibrahim Daitey in the farmland granted to him by 1st Defendant which interest expired 10 years after 1st April, 2012 and was not renewed.

[68] ISSUE 4: Whether or not the 1st Defendant completely deserted their 200 acres of land owing to the invasion of deadly land guards.

Per their pleadings, it is the case of the 1st Plaintiff that the 1st Defendant abandoned its 200-acre land at Adjei Kojo due to the activities of land guards. The 1st Defendant in its Statement of Defence denied abandoning the land.

[69] On this issue, the 1st Plaintiff testified as follows:

We had to ward off encroachers because the fast-developing nature of the area started attracting very deadly land guards to the area. These dangerous land guards succeeded in taking over completely of about 200 acres TDC land in Santeo (which included our 20 acres land) to the extent that 1st Defendant could sustain warding them off. So, TDC abandoned the land altogether without any hopes of recovering it.

Between 2005 to 2011 especially, the land guards have grown in to a whole network and have heavily been over the entire land (community 23) and succeeded in turning the area into their ‘den’ or centre. It was virtually a no-go area.

[70] The 1st Defendant denied this claim of Plaintiffs that the 1st Defendant abandoned its 200-acre land at Adjeikojo. 1st Defendant’s representative testified that the 1st Defendant owns the land through a grant of lease from the government of Ghana and in further confirmation of 1st Defendant’s ownership of all land at Adjei Kojo including the disputed land, it obtained judgments against the chief of Adjei Kojo at the High Court in the case of Nii Otoo Kwadjan & 2 Others vs. TDC & ANOR (SUIT No. LS26/2000) dated 23rd February 2003 which was affirmed by the Court of Appeal on 17th January 2008. The judgments were tendered as Exhibits 2 and 3.

[71] I seem not to accept the narrative of the 1st Plaintiff that the 1st Defendant abandoned the Adjei Kojo lands for the following reasons. First, in 2000 1st Defendant litigated over the ownership of land at the High Court and had a judgment in their favour. The matter went on appeal and on 17th January 2008 judgment delivered in its favour. Second, in 2001 1st Defendant leased a portion of the Ibrahim Daitey for farming purposes. The granting of portions of the land and litigating over the ownership of the land is not consistent with the claim that the 1st Defendant abandoned their 200-acre land at Adjei Kojo. I must state that on the evidence I find that there were land guards terrorising people including agents and workers of the 1st Defendant but the presence of the land guards does not in my view amount to an abandonment of one land. I am satisfied that the 1st Defendant never abandoned their 200-acre land at Adjeikojo.

[72] I will discuss issues 5, 6 and 7 together.

ISSUE 5: Whether or not the 2nd Defendant representing the 1st Defendant offered to reward the 1st Plaintiff with 20 acres out of the 1st Defendant’s 200 acres if she was able to fight off and clear off deadly land guards from the 1st Defendant’s land.

ISSUE 6: Whether or not the 1st Plaintiff accepted the Defendant's offer and fought off and cleared the land guards in anticipation of the promised 20 acres of land offered by the 2nd and 1st Defendants.

1SSUE 7: Whether or not the Defendants having awarded the 1st Plaintiff with the agreed 20 acres (99 numbered TDC plots) pursuant to their offer/promise which the 1st Plaintiff accepted, they can now purport to want to grant same to 3rd parties.

[73] It is the case of the Plaintiffs that the 1st Defendant through the 2nd Defendant and in the presence of other officials of 1st Defendant made an offer to her that if she (1st Plaintiff) is able to fight on to ward off the land guards from the 1st Defendant’s 200-acre land at Adjei Kojo making the place safer such that 1st Defendant is able to enter the land (Community 23), the 1st Defendant would reward her with 20 acres of land. According to the 1st Plaintiff, she accepted the offer and was able to ward off the land guards but the 1st Defendant has reneged on its promise to give her the 20 acres of land. The 1st Defendant denied this allegation and said it never made any such offer to the 1st Plaintiff.

[74] The law is that it is the party who stands to lose on an issue if no evidence is led on it that bears the burden of proof as far as that issue is concerned. This is provided for by Sections 14 and 17 of NRCD 323;

 

“14. Allocation of burden of persuasion

Except as otherwise provided by law, unless it is shifted a party has the burden of persuasion as to each fact the existence or non-existence of which is essential to the claim or defence that party is asserting.

17. The burden of producing evidence

Except as otherwise provided by law, the burden of producing evidence of a particular fact is on the party against whom a finding on that fact would be required in the absence of further evidence.

[75] In the case of Okudzeto Ablakwa (No. 2) v. Attorney General & Another [2012] 2 SCGLR 845 at 867 the Court explained that

“If a person goes to court to make an allegation, the onus is on him to lead evidence to prove that allegation, unless the allegation is admitted. If he fails to do that, the ruling on that allegation will go against him. Stated more explicitly, a party cannot win a case in court if the case is based on an allegation which he fails to prove or establish. This rule is further buttressed by section 17 (b) which, emphasizes on the party on whom lies the duty to start leading evidence…”

[76] See also Memuna Moudy & Ors v. Antwi [2003-2004] SCGLR 967 at 974 -975 where Wood JSC (as she then was) commented on the burden placed on a party making an allegation which is disputed as that:

“ 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 doesn’t discharge his burden unless he leads admissible and credible evidence from which the fact or facts he asserts can be properly and safely inferred.”

 

[77] In the circumstances where the 1st Defendant has specifically denied the allegations made by the Plaintiffs in their Statement of Claim that 1st Defendant made a promise to the 1st Plaintiff to reward her with 20 acre land if she is able to ward off land guards from 1st Defendant’s Adjei Kojo land, it is the Plaintiffs' responsibility to present evidence that supports their claims. If they fail to do so, the Plaintiffs will lose on this issue.

[78] The 1st Plaintiff repeated her averments of the offer of the 20-acre land and that she accepted the offer and was able to ward off the land guards on oath when she mounted the witness box and nothing else. This is what she said in her evidence:

Sometime in 2010 or so, the TDC Chief Executive Officer (Mr. Joseph Abbey sent for me. I went to meet him. He told me they have heard for (sic) the good fight I have put up in protecting their community 23 land at Adjei Kojo and wanted to have a meeting with me. Mr Abbey arranged the meeting and eventually, I met the (TDC Officials about 6 of them). I don’t know them all. I only know Mr. Abbey and the head of their taskforce at the time called Colonel Salifu. I went with my daughter (Forbisterlandier Assam) and Madam Alice Agbakpey, one of my grantees who became close to me. They can confirm to what happened that day in the meeting.

……... At the time of the meeting, TDC had severally tried to ward off the land guards but they could not contain them. It had resulted in police fatalities and injuries to TDC Staff in the past so they gave up on the Community 23 lands.

So, the TDC through Mr. Joseph Abbey in the presence of the other officials made an offer to me that if I am able to fight on to ward off the land guards from the land making the place safer that TDC is able to enter the land (Community 23 land which is about 200 acres in all) with its taskforce, TDC would reward me with 20 acres of land (which turned out to the same land Mr Daitey had granted to me earlier).

[79] The 1st Plaintiff testified that she attended the meeting with her daughter Forbisterlandier Assam and one Madam Alice Agbakpey yet he never called them to testify on this issue on her behalf. 1st Plaintiff did not say these two persons she went to the meeting with were unavailable as witnesses. The Plaintiff rather called one Peter Kweku Spio (PW1) a former private security personnel and a member of 1st Defendant’s task force to testify on her behalf on this issue. PW1 who also testified that he was present at the meeting where the 2nd Defendant on behalf of the 1st Defendant promised the 1st Plaintiff 20-acre land if she is able to ward off land guards on the 1st Defendant’s Adjei Kojo land.

[80] I do not believe PW1 was at any meeting at which the 1st Defendant promised 1st Plaintiff 20 acres of land if 1st Plaintiff is able to ward off land guards from the Adjei Kojo lands.

[81] First, the 1st Plaintiff in her testimony said she went to the meeting with her daughter, Forbisterlandier Assam and one Madam Alice Agbakpey. She did not mention her husband as being part of the meeting. However, PW1 mentioned that the 1st Plaintiff attended the meeting with her husband and a daughter.

[82] Second, the 1st Plaintiff in evidence-in-chief said Mr. Abbey, (2nd Defendant) and the head of 1st Defendant’s head of security, (2nd Defendant) were present at the meeting. Indeed, the Plaintiff did not mention that PW1 was at the meeting. However, under cross examination PW1 mentioned the persons present as follows:

Q. During this meeting that you have indicated to the court, were you present at that meeting.

A. Yes.

Q. And who and who from TDC side were there.

A. Mr Wilie Koso, Mr. Martin, Mr. Joseph Abbey, Mr. Asare and Mr. Darkey were the only people present.

[83] PW1 did not mention Colonel Salifu, 2nd Defendant as one of the persons from the TDC side present. The 1st Plaintiff testified that she knew 2nd Defendant and that he attended the meeting. From the evidence 2nd Defendant was the boss of the PW1 so PWI knew 2nd Defendant because PW1 testified that it was 2nd Defendant who led the task force team of the 1st Defendant which included PW1 to demolished structures on 1st Defendant’s Adjei Kojo land.

[84] These inconsistencies in the evidence of 1st Plaintiff and PW1 on persons who were present at the meeting makes me not believe the story of the 1st Plaintiff that such a meeting at which the 1st Defendant made a promise of a reward of 20 acre of land to 1st Plaintiff took place.

[85] In any case, when PW1 mounted the witness box he repeated on oath the averment of the Plaintiffs that the 1st Defendant made a promise of 20 acres of land to the 1st Plaintiff if she is able to ward off land guards from 1st Defendant’s Adjei Kojo land. The law is that, where a party makes an averment capable of proof in some positive way, e.g. by producing documents, description of things, reference to other facts, instances, or circumstances, and his averment is denied, he does not prove it by merely going into the witness box and repeating that averment on oath, or having it repeated on oath by his witness.

[86] In Kluste and Anor v Nelson [1965] DLSC 1816 Apaloo J.S.C citing with approval the dictum of Ollenu on what proof is in law in Majolagbe v. Larbi stated thus:

 

“In any event, she did not prove excessive speed by merely repeating in the witness-box an averment denied in the pleadings. In this connection, I refer, with respectful approval to the dictum of Ollennu J. (as he then was) in the High Court case of Majolagbe v. Larbi, where the learned judge is reported to have said:

‘Proof in law is the establishment of facts by proper legal means. Where a party makes an averment capable of proof in some positive way, e.g. by producing documents, description of things, reference to other facts, instances, or circumstances, and his averment is denied, he does not prove it by merely going into the witness box and repeating that averment on oath, or having it repeated on oath by his witness. He proves it by producing other evidence of facts and circumstances, from which the Court can be satisfied that what he avers is true’.”

[87] In the instant case, the Plaintiffs would be deemed not to have proved the allegation that 1st Defendant made an offer of 20-acre land to 1st Plaintiff by the 1st Defendant. 1st Plaintiff and her witness (PW1) merely mounted the witness box and repeated the averments on oath.

[88] This allegation is capable of positive proof and in terms of the definition of proof outlined by the dictum of Ollennu J. (as he then was) in the case of Majolagbe v. Larbi (supra) the Plaintiffs would have to provide that kind of evidence that can positively proof the averments. In an attempt to prove the averments, the 1st Plaintiff in her testimony tendered some documentary evidence.

[89] The 1st Plaintiff testified as follows:

The Defendants in fulfilling their promise of rewarding me with 20 acres of land, they detailed their task force and surveyors whom I made to lead the land to re

 

survey the 20-acre land on the ground and thereafter they allocated it to me and prepared an official site plan (with individual plots demarcated) in my name. I have attached copies of the site plans and other relevant documents marked as exhibit E series.

[90] Exhibit E is a site plan in the name of the 1st Plaintiff. There is no indication on Exhibit E that shows that it emanates from the 1st Defendant. Exhibit E1 is also a site plan. Exhibit E1 does not bear the name of 1st Plaintiff and it does indicate that the lands belong to the 1st Plaintiff. In my view, Exhibits E and E1 do not have any probative value in helping to prove the claim of the 1st Plaintiff that the 1st Defendant rewarded her with 20-acre land.

[91] The 1st Plaintiff further testified as follows:

My Lord, after our meeting with the TDC and the promise for (sic) them, I continued to fiercely fight off the land guards with my life and all our resources on the strength of the promise of the 1st and 2nd Defendants. Which is that they would reward me with 20 acres with its documents. They have already allocated the 20 acres for me both on the ground and on paper. On the strength of the promise and opened official file land owners file for me. I attached copy of the allocation and the front of the file marked as Exhibits F Series. This Exhibit F confirms that TDC opened filed (sic) for me and have allocated the land to me with file no PP/WT/11205.

Thereafter, one George Kofi Asare (also a tenant of tenant (sic)) sought to trespass of my 20-acre land and the matter ended before the Ashaiman Police. The police outfit demanded confirmation from the TDC as who owns which part of land in Tema Community 23. The TDC Acting per its CEO (the 2nd Defendant) wrote to the Commander, Ashaiman Police and confirmed portion of the land which belonged to me. TDC attached the TDC official site plan for the area to the letter.

 

I attached copy of the letter marked as Exhibit G and G1. In the letter, TDC confirmed clearly that portion marked ‘A’ on the accompanying site plan (Exhibit G1) falls within my land. My Lord, portion A of Exhibit G1 is 20 acres (which is 99 plots), the land the TDC had rewarded me with. It is marked and edged red colour. So it is undisputable that the TDC recognizes me as the owner of the 20 acres they have given to me as a reward.( emphasis mine)

[92] In my view, Exhibit G was not referring to a 20-acre land allocated to 1st Plaintiff by 1st Defendant as a reward for 1st Plaintiff warding off land guards from 1st Defendant’s Adjeikojo lands. I say for two reasons.

[93] First, Exhibit G is dated October 2011 and at the time Exhibit G was written, it was in reference to the land granted to Ibrahim Daitey and not the reward of 20 acre land made to 1st Plaintiff by 1st Defendant. The 1st Plaintiff in her evidence testified that it was sometime in 2010 that 2nd Defendant the then Chief Executive Officer of the 1st Defendant called her for the meeting and promised her that if she is able to ward off land guards of the Adjei Kojo land they will give her 20 acres as a reward. She further testified that in the course of the exercise to ward off the land guards she got stranded with funds and needed money to continue so she sold her house to raise funds and borrowed monies from other perspective interested land purchasers numbering at least 9 different people. She tendered Exhibits D series as some of the receipts and land documents in support of her claim. Exhibit D is a receipt in respect of monies received by the 1st Plaintiff for the sale of two plots of land situate at Adjei Kojo to one Alice Agbakey. The receipt is dated 27th May, 2011. Exhibit D1 is a lease made between Elizabeth Asaam as lessor and Frank and Philip Tetteh as lessees. The document is dated 16th May, 2014. Exhibit D2 is a lease made between Elizabeth Asaam as lessor and Stephen Adjei as lessee. The document is dated 16th August, 2012.

 

[94] Exhibit D3 is a lease made between Elizabeth Asaam as lessor and Isaac Mensah and Mrs. Eunice Mensah as lessees. The document is dated 27th April, 2011. Exhibit D 4 is a lease made between Elizabeth Asaam as lessor and Albert Charway as lessee. The document is dated 17th September 2013. Exhibit D 5 is a lease made between Elizabeth Asaam as lessor and Gregory Cudjoe as lessee. The document is dated February 2011.

[95] All these exhibits post-date 2010, the year that 1st Plaintiff alleges that she had a meeting with 1st Defendant and its officers at which meeting she was promised a 20-acre land if she is able to ward off land guards. If she raised funds in 2011 to continue the fight, the 1st Defendant could not have given her the 20 acres in 2010 when in 2011 and beyond she was still raising funds to ward off the land guards and had not completed the task to merit her the 20-acre land promise.

[96] Second, from the contents of Exhibit G, the land that was the subject in the letter was not any 20 acres of land reward given by the 1st Defendant to 1st Plaintiff. The subject matter of the letter was the farmland allocated to Ibrahim Daitey by 1st Defendant for which Ibrahim Daitey alienated his interest to the 1st Plaintiff for emphasis and ease of reference, I will reproduce paragraphs 3 and 5 of Exhibit G

The tenurial interest of Madam Elizabeth Asam and Ibrahim Daitey originated from the allocation of a farm land to Ibrahim Daitey by Tema Development Corporation around 1996. That of Agbintso Borketey did not originate from Tema Development Corporation.

Whiles the plan bearing the name Agbinsto Borketey family appendix C and D (edged green) on the attached layout falls within the property of Trasaco, that for Elizabeth Asam ‘A’ and Ibrahim Daitey ‘B’ (edged pink and cyan respectively) falls within Community 23. ( bold italics mine)

 

[97] The contents of Exhibit G indicate that the interest of 1st Plaintiff in the land originated from the allocation of farmland to Ibrahim Daitey by Tema Development Corporation, the 1st Defendant. Exhibit G therefore cannot be said to be documentary evidence in proof of the claim of the 1st Plaintiff that 1st Defendant fulfilled the promise and granted her 20-acre land as a reward for warding off land guards from the 1st Defendant’s Adjeikojo Lands

[98] If the 1st Defendant had made a reward of the 20-acre land and it was the subject matter land in respect of the attached site plan, 1st Plaintiff would have stated it explicitly in Exhibit G that 1st Plaintiff had her interest directly from 1st Defendant without tracing 1st Defendant’s interest to Ibrahim Daitey.

[99] On the evidence, I am satisfied that and I hold that the 1st Defendant did not make any promise of 20 acres of its Adjeikojo land to the 1st Plaintiff as a reward for warding off land guards from the land.

[100] It is the case however of the 1st Defendant that, they offered 1st Plaintiff a 1.45-acre land when they realised that 1st Plaintiff was able to ward off land guards on the farmland granted to her by Ibrahim Daitey and had buildings on the said land.

[101] It is pleaded at paragraphs 18 and 19 of 1st Defendant’s statement of claim as follows:

18. After the 1st Defendant recovered its land in the area, and in recognition of the 1st Plaintiff’s efforts at warding off encroachers on the farmland, the 1st Defendant proposed to offer the 1st Plaintiff 14 residential plots (1.45 acres) in line with the zone user of land in the area, including structures contained on the land, at a discounted fee.

 

19. The 1st Plaintiff in agreement with the proposal formally applied for residential plots by application form dated 2nd May, 2013 but subsequently failed to accept the proposal.

[102] This is what 1st Defendant’s representative said in his evidence:

After the 1st Defendant recovered its land in the area, and in recognition of the 1st Plaintiff’s efforts at warding off encroachers on the farm land, the Defendant proposed to offer the 1st Plaintiff 1.45 acres in line with the zoned user of the land at a discounted fee. The 1st Plaintiff in agreement with the proposal, formally applied for residential plots by application for dated 2nd May 2013 but subsequently failed to accept the proposal. Copies of the application forms and the proposed letter are marked as Exhibits 9 and 10.

[103] Exhibit 8 is the application form signed by 1st Plaintiff for residential plots in the size of 14 plots. The 1st Defendant in response to the application of the 1st Plaintiff wrote Exhibit 10 in which the 1st Defendant reserved 1.45 acres of plot to the 1st Plaintiff. The 1st Plaintiff accepted the offer of the 1st Defendant of the 1.45 acres of land and signified this acceptance by the making of Exhibit 8 and upon receipt of Exhibit 8 the 1st Defendant reserved those Plots for her i.e. 1.45 acres (14 residential plots) land at Community 23. Indeed, the 1st Plaintiff did not challenge or object to the tendering of Exhibit E. She did not deny signing it.

[104] The 1st Plaintiff would be bound by the contents of exhibit E. The acceptance of the offer and signing of Exhibit E supports my earlier finding that the Plaintiff never made a promise of 20 acres of land (as she puts it 99 TDC Plots). I say so because if the promise was for 20 acres why would the 1st Plaintiff a shrewd businesswoman agree to take 1.45 acres instead of 20 acres and apply for same.

 

[105] It is the case of the 1st Defendant that the 1st Plaintiff later rejected the offer of the

1.45 acres. There is no evidence that the 1st Plaintiff rejected the offer. The 1st Defendant made an offer of 1.45 acres of land to the 1st Plaintiff in consideration of her fight against land guards and protecting the 4.82 farmland granted to her by Ibrahim Daitey. The said offer was accepted by the 1st Plaintiff by putting in the application for the said 1.45 acres. The 1st Defendant then by Exhibit 10 accepted the application and allocated the 1.45 acres to the 1st Plaintiff. In terms of section 26 of the Evidence Act, the 1st Plaintiff would be estopped from denying that she was granted 1.45 acres of land by the 1st Defendant.

[106] By the conduct of the 1st Defendant, they would be estopped from denying the lawful existence and interest of the 1st Plaintiff in the 1.45-acre land at Community 23 comprising of the 14 plots of land especially so when the 1st Defendant acknowledged that the 1st Plaintiff had structures on it and fought to ward off encroachers. This is the import of section 26 of the Evidence Act. See Sasu v. Nyaduala (supra).

[107] ISSUE 8: Whether or not 1st Defendant acting through the 2nd and 3rd Defendants without recourse or notice to the 1st Plaintiff trespassed unto 1st and 2nd Plaintiffs land and completely demolished four (4) dwelling houses belonging to the Plaintiffs.

[108] Despite the allocation of the 1.45 acres of land to the 1st Plaintiff and knowing that she had structures on the said land the 1st Defendant through its agents unlawfully demolished 1st Plaintiff’s properties on the land. The 1st Plaintiff testified that a convoy of a task force from 1st Defendant’s Corporation conducted a massive demolishing operation at Adjeikojo and demolished a lot of buildings at Community 23. Her buildings were unfortunately demolished.

[109] PW1 in his evidence corroborated the evidence of 1st Plaintiff and testified as follows:

 

With the Community 23 land now safe, TDC later arranged a massive demolition exercise. I was one of the team members of TDC task force which undertook the massive demolition in Community 23. We were led by Colonel Salifu our head. Before we left for the exercise, the TDC CEO, Mr. Abbey, instructed us to demolish all structures in the area except those of American woman. She had her 3-bedroom matrimonial house and 5 other completed building and 3 uncompleted building which she showed us.

On the day of demolition, we were divided into groups unto different portions on the land. We demolished lots of buildings on the day. When we got to the buildings of American woman, the group alerted Colonel Salifu that it was American Woman’s building and so we left. Of the blue, another group behind us, were wrongfully ordered by Colonel to demolish American Woman’s building and they demolished it completely. When we got to the Office (TDC), news had already reached the CEO that we (the taskforce) had wrongfully and tragically demolished American Woman’s building against his instructions. The CEO called us and was highly upset and disappointed and accused Colonel Salifu for the mess. Colonel Salifu could only say sorry.

[110] The 1st Defendant acknowledged the occupation of 1st Plaintiff on the land and offered her the land on which the 1st Plaintiff had her buildings. The 1st Plaintiff accepted the offer and applied for the 1.45 acres. The 1st Defendant granted the application yet went ahead and unlawfully demolished the properties of the 1st Plaintiff on the land. The 1st Defendant will be liable to the 1st Plaintiff in damages.

[111] I therefore enter judgment for the Plaintiff as follows:

1. A declaration that in consideration of her warding off land guards from 1st Defendant’s farmland at Adjeikojo (Community 23) the 1st Plaintiff is

 entitled to 1.45 acres of Land numbered as 14 Building Plots at TDC Community 23 Adjei Kojo where 1st Plaintiff had her buildings offered by the 1st Defendant.

2. 1st Defendant to issue a lease to Plaintiff in respect of the said 1.45 acres of land numbered as 14 Building Plots at TDC Community 23 Adjei Kojo, where 1st Plaintiff had her buildings.

3. An Order of perpetual injunction restraining Defendants whether by themselves, agents, employers, servants, assigns, grantees or any person(s) or entities claiming through, under the trust for them from interfering with 1st Plaintiff’s interest in the said 1.45 acres numbered as 14 Building Plots at TDC Community 23 Adjei Kojo.

4. GH¢1,200,000.00 general damages for unlawful demolition of 1st Plaintiff’s properties.

5. GH¢120,000.00 special damages.

Costs of GH¢60,000.00 in favour of the Plaintiffs and against 1st Defendant.