Pacific Solutions & Services Limited and Justice Kwesi Eyison v Ministry of Food and Agriculture, Attorney-General and T. Batoul Construction Co. Limited

1.0 INTRODUCTION:

The facts of this case as captured by the Amended Statement of Claim is that the 1st Plaintiff is a limited liability company registered under the Companies Act of Ghana. The 2nd Plaintiff is a Director of the 1st Plaintiff Company. That the 1st Defendant is a key Ministry of the Republic of Ghana, while 3rd Defendant is a department or agency under the Ministry of Food and Agriculture.

1.1 That the 2nd Defendant is a nominal defendant and under the constitution of the Republic of Ghana, acts as chief legal adviser to the Republic of Ghana and thus legally deals or represents all Governmental Agencies Ministries and Departments.

1.2 The 4th Defendant is a company registered under the laws of Ghana and engaged in construction. That the 4th Defendant has entered unto the land in dispute and has constructed a fence wall on portions of the land in dispute without the consent of the Plaintiffs.

1.3 That by a Land Title Certificate No. GA11751/Vol. 019 Folio 552 dated 31st day of August, 2015 with Registration No. 50853, Top Kings Limited, became the registered proprietor of all that piece or parcel of land situate, laying and being at Borteyman in the Tema District of the Greater Accra Region containing an approximate area of 1.089 acres or 0.441 hectare more or less and bounded on the North-West by proposed road measuring 324.8 feet more or less, on the North-East by lessor’s land measuring 155.7 feet more or less, on the South-East by lessor’s land measuring 284.9 feet more or less, on the South-West by lessor’s land measuring 155.7 feet more or less.

1.4 That Top King Limited traces its root of title from Nungua Stool and Nungua Development Trust in which by a lease referred to as the head lease, the president of the Republic of Ghana acting by the Chairman of the Lands Commission leased all that part of the Nungua Farms’ land containing an area of nine hundred and seventy-two decimal four six (976- 466) acres or 374.820 hectares to the Nungua Stool for a term of ninety-nine

(99) years with effect from the 16th day of April, 2009.

1.5 That having secured the said piece or parcel of land, the Nungua Stool and Nungua Development Trust, acting per its representatives – Nii Odai Kwei III (Nungua Kroowah/Noryaa Mantse, Nii Botwe Laryea II, Nungua Dzaasetse/Kotobabi Mantse, Nii Quaye alibi Oasakpi I (Larweh Dzaasetse) and Nii Botey Okplen Dzate Sane I (Obanai Mantse), of the one part and Top Kings Limited 17.032 acres which formed part and parcel of the larger acre measuring 976.466 acres was leased to Top Kings Limited from 8th July, 2012.

1.6 That by a judgment in Suit No. AP 541/2016 entitled GODFRED YEBOAH DAME V. TOP KINGS ENTERPRISE LIMITED AND ANOTHER, Her

Ladyship Justice Patience Mills-Tetteh (Mrs.) Justice of the High Court, Accra granted an order for purchase price, for the auction of the demarcated property situate within Kings Cottage, Adjiriganor, Accra belonging to Top Kings Enterprise Limited, the distress therein.

1.7 That on Tuesday, October 25, 2016 – ‘Nyame Tumi So’ Mart, appointed auctioneer, caused to be published Notice for the sale of land situate off the Motor Way on 3rd November, 2015 at 11:00am.

1.8 That the Plaintiff herein, as highest bidder, purchased 2.093 acres of the said auctioned land at the purchase price of US$380,000.00 or its equivalent in Cedis and made payment to ‘Nyame Tumi So’ Mart, and receipts were accordingly issued to the Plaintiff1.9 That two separate indentures bearing the names of Justice Kwesi Eyison and Pacific Solutions Limited were issued as contained in a sub-lease dated 21st march, 2017 and made between Top Kings Limited and Pacific Solutions Services and stamped at LVB GAST 219322017.

2.0 The Plaintiffs caused a fence wall to be built around the divided land. That on Sunday, February 28, 2018 a 50-member team of the Ghana Police Service fully armed with bulldozers, pay loaders, pick-ups and other earth moving equipment led by the Greater Accra Police Operations Commander, Chief Superintendent Kwasi Ofori demolished the fence wall around the 2 acre plots without any notice to the Plaintiff.

2.1 That upon enquiry from the police at the site at Borteyman, the Plaintiff was informed that that demolishing exercise was embarked upon at the behest of the Ministry of Food and Agriculture alleging that the development being carried out by the Plaintiff constituted trespass to portions of the Nungua Farm lands acquired by the Government.

2.2 That the demolishment of the Plaintiff’s property was boldly reported in the Daily Graphic issue of Monday, February 26, 2018, captioned “Agric Ministry in Warpath to claim lands, structures of squatters razed to the ground”.

2.3 That the Plaintiff wrote a letter addressed to ‘Nyame Tumi So’ Mart, Auctioneer, copied same to the Minister, Ministry of Food and Agriculture, the Inspector-General of Police indicating that the property was legally acquired through an auction conducted by the court and further insisted that the demolishment was done without recourse to the laws of the land, but no response has been received.

2.4 That having waited in vain without any official response to the claim of the Plaintiff, and as requested by law, under section 10 of Act 533, Statutory

 

Notice of Instruction to commence action was served on the Attorney- General.

2.5 That the Plaintiff caused a Surveyor, E. O. Appiah Kantankah to carry out a valuation of demolished property, who estimated the value hereof to be four hundred and twenty-one thousand, two hundred and fifty Ghana Cedis (GhS 421,250.00).

2.6 That the Plaintiff visited the site in August 2018, and found to its dismay that, the 1st and 2nd Defendants are feverishly developing the land and also discharging offensive liquid waste and effluence into portions of the land thereby polluting and or degrading the economic value of the land.

2.7 That the Plaintiff maintains that the Defendants’ action is unlawful and constitutes trespass to the Plaintiff’s property. Based on these facts the Plaintiff claims against the Defendants jointly and severally as follows:

a. A declaration of all that piece or parcel of land situate, lying and being at Borteyman in the Tema District of the Greater Accra Region containing an approximate area of 1.089 acres or 0.441 hectare more or less and bounded on the North-West by a proposed road measuring

324.8 feet more or less, on the North-East by lessor’s land measuring

155.7 feet more or less, on the South-East by lessor’s land measuring

284.9 feet more or less, on the South-West by lessor’s land measuring

155.7 feet more or less.

b. Recovery of possession.

c. Damages for trespass and causing waste on the Plaintiff’s land.

d. Perpetual injunction.

e. Immediate payment of the total cost of demolished wall valued at GhS 421,250.00.

2.8 The Ministry of Good and Agriculture, the 1st Defendant herein, through its agent Aynok Holding on 18th February, 2018 undertook a demolition exercise on the Nungua Livestock Breeding Station as a result ofencroachment by some individuals who claim to have acquire portions of the station’s land from some natives of Nungua and have commenced it development.

2.9 The demolition was restricted to the Nungua Farm lands and executed in the presence of officers from the Ghana Police Service. Unfortunately, during the demolition a short wall of about four feet high on the common boundary of the land of the Station and a parcel of land was mistakenly pulled down.

3.0 It is the case of the 1st and 2nd Defendants that the wall has since been reconstructed by the 1st Defendant through one Dr. Ahmed to whom the 1st Defendant had leased five (5) acres of the land adjoining the disputed land for a greenhouse and hydroponic centre. And that the reconstructed wall was built on the foundation of the previous wall.

3.1 The 3rd Defendant vehemently denied the allegations of the Plaintiffs. It is the case of the 3rd Defendant that the land on which the 3rd Defendant is now occupying was originally for Top Kings Limited. On the 26th day of February, 2016, top Kings Limited as the sub-lessor executed a sub-lease for the 3rd Defendant as the sub-lessee for a term of seventy (70) years.

3.2 The 3rd Defendant became the beneficial owner of all that piece or parcel of land situate lying and being at Borteyman, Tema Municipal Assembly in the Greater Accra Region of the Republic of Ghana and containing an approximate area of 1.04 acres or .042 Hectare and bounded on the North by sub-lessor’s land measuring 307.2 feet more or less on the East measuring 156.9 feet more or less, on the South by the Tema-Accra Motorway reservation measuring 298.8 feet more or less on the West by sub-lessor’s land measuring 160.4 feet more or less which piece or parcel of land is more particularly delineated on the plan attached to the sub-lease.

3.3 It is the 3rd Defendant’s case that negotiations of purchase of the land commenced in 2014. And that this was after one Frederick Lawer Tetteh, the General Manager of Batoul Construction Co. Limited, in the company of Mr. Boateng an official of Top Kings, personally visited and inspected vacant lands belonging to Top Kings in Borteyman. Sometime in the early months of 2015, Frederick once again, in the company of Mr. Boateng and one surveyor by name Mr. Acquah visited the land again to demarcate a portion of the vacant lands. The surveyor subsequently generated a site plan for Batoul Construction for purposes of due diligence.

3.4 The 3rd Defendant discovered that in that vicinity, Top Kings owned a large tract of lands which shared boundary at a point with the Ministry of Food and Agriculture, the 1st Defendant herein. Searches at the various divisions of the lands Commission showed that the land belonged to Top Kings and that Top Kings acquired the land from the Nungua Development Trust on 22nd May, 2014.

3.5 Upon acquiring a valid grant from Top Kings in 2016, the 3rd Defendant proceeded to register its interest in the land and on 29th September, 2016 obtained a Land Title Certificate with number TDA 1322 Vol. 018 Folio 158. The 3rd Defendant in 2016 cleared the lands by use of heavy-duty earth moving equipment to assert possession on the land and was in undisturbed possession until it sold the land in 2019 to Electroland Ghana Limited.

3.6 It is the 3rd Defendant’s case that on 30th May, 2019, the 3rd Defendant executed a Deed of Assignment in favour of Electroland Ghana Limited in respect of the land described above. Electroland Ghana Limited proceeded to register the land at the Lands Commission and obtained a land title certificate with registration number TDA 4691.

3.7 Electroland Ghana Limited subsequently in 2019 contracted the 3rd Defendant as a construction firm to build a fence wall on the land. In the process of constructing the fence wall in 2020, the 3rd Defendant’s workmen were fiercely approached by the 2nd Plaintiff who claimed ownership of the land. The conduct of the 2nd Plaintiff was reported to the Criminal Investigation Department of the Ghana Police Service.

3.8 It is the case of the 3rd Defendant that according to the 2nd Plaintiff, he obtained the land by means of a court Auction however, the 3rd Defendant was never a party to any action which led to the auction. The Police investigators then directed the 2nd Plaintiff to submit his site plan and the site plan of Electroland Ghana Limited was also submitted. The police investigators duly conducted a search at the Lands Commission which results showed that the land in question belonged to Electroland Ghana Limited.

3.9 According to the 3rd Defendant they were never aware of any auction held on 3rd November, 2016 affecting the land. And that the land could not have been the subject of any auction because at the time of the attachment by the court Sheriff on 28th September, 2016, the land had already been sold to the 3rd Defendant herein.

4.0 It is also the case of the 3rd Defendant that the mere issuance of a writ of fi fa. by the court does not automatically seize the property in question for a public sale without notice of attachment since a writ of fi.fa. is merely authority granted to the Sheriff/Bailiff to execute judgment by seizing the judgment debtor’s property.

4.1 That at all material times the land belonged to the 3rd Defendant who sold it to Electroland Ghana Limited who has a land title certificate on the land and it in lawful possession of the land. It is the case of the 3rd Defendant that the purported auction of the land on 3rd November, 2016 was illegal because Top Kings had no interest to convey to the Plaintiffs’ having already divested its interest in that part of the land. Therefore the Plaintiffs are not entitled to the reliefs against the 3rd Defendant.

4.2 The 3rd Defendant counterclaimed as follows:

 a. A declaration that the auction by “Nyame Tumi So” Mart on 3rd November, 2016 of the 3rd Defendant’s land as described in paragraph 3 of the Statement of Defence or any portion thereof is illegal.

b. An order setting aside the auction on 3rd November, 2016 affecting the 3rd Defendant’s land as described in the statement of Defence.

c. Perpetual injunction restraining the Plaintiffs either by themselves, their agents, assigns, privies, workmen, servants or howsoever described from interfering with the use and/or development of the land as described in the Statement of Defence.

d. General damages for trespass.

e. Cost (including solicitors fees).

4.3 At the application for direction stage the following issues were set down for trial:

i. Whether or not the land in dispute measuring 976.466 forms part and parcel of the land released to the Nungua Development Trust.

ii. Whether or not the Nungua Development Trust assigned all that piece of land in extent of 6.893 hectares or 17.132 acres more or less situate at Borteyman per survey plan no. Z50853 covered by a land certificate no. TD11751 Vol. 019 Folio 552 to Top Kings Limited.

iii. Whether or not part of the land assigned to Top Kings Limited was affected by fi.fa in respect of the suit entitled Godfred Yeboah Dame

V. Top Kings Enterprise Limited and Another Suit NO. AP54/2015.

iv. Whether or not Certificate of Purchase in respect of the fi.fa in Suit No. AP/54/2015 was issued in favour of the Plaintiffs herein in respect of the land measuring 2.0095 acres.

v. Whether or not Nungua exceeded the extent of land measuring

976.466 acres granted to it by the Government.

vi. Whether or not the Plaintiffs constructed fence wall around the land purchased through auction conducted by the High Court, Accra.

 

vii. Whether or not the Defendants caused the fence wall erected by the Plaintiffs to be demolished without a court order.

viii. Whether or not the Plaintiffs are entitled to their claim.

ADDITIONAL ISSUES:

a. Whether or not the land in dispute is a portion of state land reserved for the use of the 1st Defendant as the Nungua Livestock Farm.

b. Whether or not the Nungua Development Trust had title to the land in dispute to transfer same to Top Kings Enterprise Limited as was purported by the execution of the Deed of Assignment dated 20th April, 2012.

c. Whether or not the sub-lease dated 21st March, 2017 transferred any interest in the disputed land from Top Kings Enterprise Limited to the Plaintiffs.

4.4 The case of the Plaintiffs was prosecuted by the 2nd Plaintiff, the chief executive officer and head Consultant of 1st Plaintiff. It is the testimony of the Plaintiffs that on Tuesday 25th October, 2016, there was a publicly advertised auction sale of a parcel of land measuring 2.093 acres situate off Tema-Accra Motorway in the Ghanaian Times Edition. A copy of the said advertisement in the Ghanaian Times Edition was tendered as Exhibit A.

4.5 It is the evidence of the 2nd Plaintiff that on his own behalf and also acting for and on behalf of the 1st Plaintiff, purchased a piece or parcel of land measuring 2.093 acres situate off Tema-Accra Motorway as published at the cost of US$380,000.00 (Three Hundred and Eighty Thousand US Dollars) at its equivalent value in Ghana Cedis.

4.6 And that after payment of the purchase price to the auctioneer, a Certificate of Purchase was issued at a public auction on 3rd November, 2016. A copy of the Certificate of Purchase was tendered as Exhibit B.

 

4.7 He continued that a Land Title Certificate No. TDA 5325 registration No. 020Z710123 covering 1.006 acres of the purchased 2.093 acres was issued under the authority of the Land Title Registry, Accra, in the name of the 2nd Plaintiff. A copy of the Land Title Certificate No. TDA 5325 registration No. 020Z710123 was tendered as Exhibit C.

4.8 That an Indenture No. LVDCT 219312017 signed, sealed and delivered between Top Kings Limited, the judgment Debtor and the Sub-lessor acting through its Director and shareholder, Mr. Kingsley Owusu-Achau and the 1st Plaintiff as Sub-lessee covering 1.089 acres of the purchased 2.093 acres auction sale on 21st March, 2017. A copy of the Indenture was tendered as Exhibit D.

4.9 Notice of the Property of judgment/debtor and the defendant in Suit No. AP54/2015 between Godfred Yeboah Dame (plaintiff) and Top Kings Enterprise Limited (defendant) having been seized in execution under writ of fi.fa dated 5th January, 2015 to be sold by Public Auction on 3rd November, 2016 at 10:00am. A copy of the notice of the Property was tendered as Exhibit E.

5.0 The Plaintiffs testified that the attachment of immovable property by the Sheriff in Suit No. AP 54/2015 between Godfred Yeboah Dame (plaintiff) and Top Kings Enterprise Limited (defendant) for the attachment of the movable and the immovable properties of the judgment/debtor (defendant) and prohibited from alienating the properties by sale, gift, or any other way and all persons prohibited from receiving the said properties by purchase, gift or otherwise. A copy of the Attachment of Immovable Property by the Sheriff in Suit No. AP54/2015 between GODFRED YEBOAH DAME (PLAINTIFF) AND TOP KINGS ENTERPRISE LIMITED was tendered

as Exhibit F.

5.1 And that the said properties of the Defendant attached is inclusive of the 17 acres of land, Kings Cottage, near Trassacco off Accra-Tema Motorway of which 2.093 acres of the parcel of land purchased by Pacific solutions and Services is part with the order for reserve price valued at US$ 182,010.33 per one acre but sold and purchased at US$190,000.00 per one acre, the Order for the Reserved Price and Land Title Certificate (No. TD 11751) in the name of Top Kings Limited were tendered as Exhibit G.

5.2 The Ruling and Notice of Entry of Judgment dated 7th day of December, 2015 in Suit NO. AP 54/2015 between Godfred Yeboah Dame and Top Kings Enterprise Limited and Kingsley Owusu were tendered in evidence. See Exhibit H and H1, a copy of the Ruling and the Notice of Entry of Judgments.

5.3 That on Sunday, 25th February, 2018, that 1st Defendant without any Court Order and any prior notice in the company of fully armed 50 member police contingent with bulldozers, pay loaders, pickups and other earth moving equipment demolished fully walled and fenced 2.093 acres of the land and other construction works under development on the land purchased by the 1st Plaintiff by a judicial Sale (auction sale). See Exhibit J and J1, copies of photographs and Daily Graphic Newspaper Publication.

5.4 Compliant of this unlawful demolition and trespassing was made to the Kanewu Police and the police Property Fraud Unit accordingly. The Plaintiffs continued that the total value of the demolished property by the valuation report of Surveyor E. O. Appiah Kantankah caused by the Plaintiffs was valued at Four Hundred and Twenty-one Thousand, Two Hundred and Fifty Ghana Cedis (GhS421,250.00) in 2018.

5.5 That the 1st Defendant and an Agency under it, Nungua Farms in August, 2018 started a development on the Plaintiffs’ land and also discharging offensive liquid waste and effluent onto portions of the land polluting and degrading economic value of the land.

5.6 It is also the Plaintiffs’ case that the 1st Defendant continues to date, development on the land trespassing on the Plaintiffs’ land in spite of the

case being in court. Also a visit to the site in July, 2020 by the Plaintiffs found to their uttermost dismay that the 3rd Defendant was feverishly embarking on development works on one acre of the 2.093 acres of the Plaintiffs’ land.

5.7 A complaint was filed with the Kanewu police which ordered the 3rd Defendant to stop the development and construction works and was invited for written statement at the Police Station. This was however ignored by the 3rd Defendant and rather proceeded to the Police Property Fraud Unit and filed a complaint against the Plaintiff.

5.8 And that upon a written statement by the Plaintiffs at the Police property Fraud Unit, the 3rd Defendant was ordered to stop any construction works and development on the land. This was again ignored by the 3rd Defendant. The Plaintiffs testified that the 3rd Defendant claims to have a land title certificate to the one acre of the 2.093 acres (land owned by the Plaintiffs) and sold to the 3rd Defendant by Top Kings Enterprise Limited, the Judgement debtor.

5.9 That the 3rd Defendant purported land certificate title no. TDA 1322 is dated 26th day of September, 2016 Vol. 018 Folio 158 with date of registration 29th September, 2016 and registration No. 018/Z63730/3 with tenant or lessee for a term of 70 years from 26th February, 2016. See Exhibit K, a copy of the Land Certificate Title No. TDA1322.

6.0 And that one Mohammed Ali Tfaila, a director and Shareholder and a Lebanese National of the 3rd Defendant per the purported land title certificate of the Defendant in the Republic of Ghana is allegedly registered as tenant or lessee for 70 years contrary to the laws of Ghana on land acquisition by foreigners. A copy of the Registrar General’s Department Company details was tendered as Exhibit L.

6.1 Also an official search on the 1.089 acres of land caused by the Plaintiffs, out of the 2.093 acres purchased by the Plaintiffs at the Lands Commission, the Land Registration Division on 6th August, 2020 signed, sealed and delivered under the hand of Christopher Anibrika (Land Administrative Officer) for the director did not show the name of the 3rd Defendant as having title to that portion of land, the 3rd Defendant claims to title and has trespassed per the annexed official search report. See Exhibit M, a copy of the official Search at the Lands Commission.

6.2 It is the evidence of the Plaintiffs that an official search report at the lands Commission was also caused by the Police Property Fraud Unit on the 1.089 acres portion of the land which the police has since not been made available or followed up on the case again. See Exhibit N, a copy of the official Search at the Lands Commission.

6.3 The Plaintiffs therefore had no option than to join the Batoul Construction Company Limited as the 3rd Defendant to the Suit No. LD/0987/2018 on an order for joinder delivered by the Justice of the High Court, Justice Oppong Twumasi and given under the hand and seal of the Registrar of the High Court (Land Division), Accra, Isahaku Musah on 30th October, 2020.

The Plaintiff maintain that the Defendants’ actions are unlawful entry, and trespass of the Plaintiffs legally acquired property through judicial sale. The Plaintiffs tendered a copy of the valuation report as Exhibit N.

6.4 The case of the 1st and 2nd Defendants was articulated by one Bright Manye. According to him he was the Assistant Farm Manager of Nungua Livestock Breeding Station of the Ministry of Food and Agriculture from 2014 to 2022 and that the Ministry of Food and Agriculture, the 1st Defendant herein, through its agent Aynok Holding on 18th February, 2018 undertook a demolition exercise on Nungua Livestock Breeding Station as a result of encroachment by some individuals who claim to have acquired portions of the station’s land from some natives of Nungua and have commenced it development.

 

6.5 And that the demolition was restricted to the Nungua Farm Lands and was executed in the presence of officers from the Ghana Police Service. He continued that unfortunately, during the demolition a short wall of about four feet high on the common boundary of the land of the station and a parcel of land belonging to Pacific Solutions (the 1st Plaintiff herein) was mistakenly pulled down.

6.6 However, same has been reconstructed by the 1st Defendant through one Dr. Ahmed to whom the 1st Defendant had leased five (5) acres of the land adjoining the disputed land for a greenhouse and hydroponic centre. And that the reconstructed wall was built on the foundation of the previous wall.

6.7 In contesting the claim of the Plaintiffs, one Frederick Lawer Tetteh, the general manager of the 3rd Defendant testified that on 26th February, 2016, top Kings Limited as the sub-lessor executed a sublease for the 3rd Defendant as the sub-lease for a term of seventy (70) years. And that the 3rd Defendant became the beneficial owner of all that piece or parcel of land situate lying and being at Borteyman-Tema Municipal Assembly in the Greater Accra Region of the Republic of Ghana and containing an approximate area of 1.04 acres or 0.42 hectare and bounded on the North by sub-lessor’s land measuring 307.2 feet more or less on the East measuring 156.9 feet more or less, on the South by the Tema-Accra Motorway reservation measuring 298.8 feet more or less on the West by sub-lessor’s land measuring 160.4 feet more or less which piece or parcel of land is more particularly delineated on the plan attached to the sublease and shewn edged pink, (hereinafter “the land”). See Exhibit 1, a copy of the Deed of Sublease.

6.8 He continued that negotiations to purchase the land commenced in 2014 after he had visited and inspected vacant lands belonging to Top Kings in Borteyman in the company of one Mr. Boateng an official of Top Kings. And that sometime in the early months of 2015, he, Mr. Boateng and a surveyor by name Mr. Acquah visited the land again to demarcate a portion of the vacant lands. The surveyor subsequently generated a site plan for Batoul construction for purposes of due diligence.

6.9 The 3rd Defendant discovered that in that vicinity, top Kings owned a large tract of lands which shared boundary at a point with the Ministry of Food and Agriculture, the 1st Defendant herein. Also searches at the various divisions of the lands Commission showed that the land belonged to Top Kings. Top Kings acquired the land from the Nungua Development Trust on 22nd May, 2014.

7.0 Upon acquiring a valid grant from Top Kings in 2016, the 3rd Defendant proceeded to register its interest in the land and on 29th September, 2016 obtained a land title certificate with number TDA 1322 Vol. 018 Folio 158. See Exhibit 2, a copy of the Land Title Certificate of the 3rd Defendant.

7.1 The 3rd Defendant in 2016 cleared the lands by use of heavy-duty earth moving equipment to assert possession on the land and was in an undisturbed possession until it sold the land in 2019. In 2019, Electroland Ghana Limited approached the 3rd Defendant to acquire an interest in the land.

7.2 On 30th May, 2019, the 3rd Defendant executed a Deed of Assignment in favour of Electroland Ghana Limited in respect of the land described above. Electroland Ghana Limited proceeded to register the land at the Lands Commission and obtained a land title certificate with registration number TDA 4691. See Exhibit 3, a copy of the Deed of Assignment for Electroland Ghana Limited and Land Title Certificate.

7.3 Electroland Ghana Limited subsequently in 2019 contracted the 3rd Defendant as a construction firm to build a fence wall on the land. In the process of constructing the fence wall in 2020, the 3rd Defendant’s workmen were fiercely approached by the 2nd Plaintiff who claimed ownership of the land. He therefore reported the conduct of the 2nd Plaintiff to the Criminal Investigation Department of the Ghana Police Service. See Exhibit 4, a copy of the Letter to the Ghana Police Service.

7.4 And that according to the 2nd Plaintiff he obtained the land by means of a court auction. However, the 3rd Defendant was never a party to any action which led to the auction.

7.5 The police investigators directed the 2nd Plaintiff to submit his site plan and he also submitted the site plan on behalf of Electroland Ghana Limited. The police investigators duly conducted a search at the Lands Commission which results showed that the land in question belonged to Electroland Ghana Limited. See Exhibit 5, a copy of the search results conducted by the Ghana Police Service.

7.6 The 3rd Defendant contends that they were not aware of any auction held on 3rd November, 2016 affecting the land. And that the land could not have been the subject of any auction. It is the evidence of the 3rd Defendant that in the course of this suit, he discovered that the high Court attached properties of Top Kings Limited on 28th September, 2016 and as at the date the land did not belong to Top Kings Limited.

7.7 And that at all material times the land belonged to the 3rd Defendant who sold it to Electroland Ghana Limited who has a land title certificate on the land and is in lawful possession of the land.

7.8 An action for declaration of title to land, recovery of possession of land and perpetual injunction, among others, as the instant suit is first and foremost a civil action, and carries with it the same evidential burden as every civil case. The plaintiff was required by section 11(1) of the Evidence Act, 1975 (NRCD 323), to adduce admissible and credible evidence in support of the reliefs sought. In OWUSU V. TABIRI & ANOR. [1987-88] 1 GLR 287, holding 7 it was held: “It was the principle of law that he who asserts must prove and must win his case on the strength of his own case and not on the weakness of the defence.”

See also FAIBI V. STATE HOTELS CORPORATION [1968] GLR 47, BANK OF WEST AFRICA LTD. V. ACKUM [1963] 1 GLR 176 and TAKORADI FLOUR MILLS V. SAMIR FARMS [2005-2006] GLR 882 AT 884 HOLDING 5.

7.9 The Plaintiffs’ burden of proof was discharged if they led evidence to persuade the tribunal of fact that what they assert is more probable than not. In other words, they were obliged to prove their case by preponderance of probabilities as required by section 12(1) of the Evidence Act. A plaintiff however has no duty to prove his case with arithmetic exactness, or beyond reasonable doubt.

8.0 In explanation of the standard of proof, it was held in BISI V. TABIRI & ANOR [1985-88] 1 GLR 386, HOLDING 2 SC as follow:

“The standard of proof required of a plaintiff in a civil action was to lead such evidence as would tilt in his favour the probabilities on the particular issue.”

8.1 Having explained the duty cast on the Plaintiffs in particular, it is of moment to note that the actual mode of presenting evidence in discharging the burden must also conform to the land. The case of MAJOLAGBI V. LARBI & ORS. [1959] GLR 190, has long shown us the path to follow. Notice must however be taken of the principle of the mode of proof of assertion as straightened out by the Court of Appeal in ZABRAMA V. SEGBEFIA [1991] 2 GLR 223.

8.2 It is sufficient to end that point with the decision of the Court of Appeal in FRANCE V. GLOIGHTLY & ANOR. [1991] 1 GLR 74, holding 3 where it was held:

 

“Where a fact was capable of positive proof it was wrong to rely on assumptions.”

The discharge of the burden of proof must encompass proof of the nature of their acquisition, the identity of their land and the fact of possession, of right of possession.

8.3 An action for declaration of title of land, recovery of possession of perpetual injunction ought to fail if the plaintiff is unable to lead credible and admissible evidence to prove that he/she properly acquired the land from the appropriate grantor.

See KPONUGLO V. KODADJA [1933] 2 WACA 24 at 25 and ACQUAH

V. PERGAH TRANSPORT LIMITED & ORS. [2010] SCGLR 728.

8.4 Secondly, the action cannot succeed unless the plaintiff leads evidence to establish the identity of the land acquired as being the same as the land claimed.

See ANANE V. DONKOR [1963] GLR 188, SC; BEDU & ORS. V. AGBI & ORS. [1972] 2 GLR 226, CA; AGYEI OSAE & ORS. V. ADJEIFIO & ORS [2007-2008] SCGLR 499; NYILORKOR V. AGBEDETO [1987-88] 1 GLR 155 and GAWU & ANOR. V. PONUKU [1960] GLR 101.

8.5 Lastly, the Plaintiff must establish that upon the acquisition of the land, he has been in possession, or has had the right to possession of the subject land. I have always held the view that all, or most of the issues raised in any typical suit for declaration of title to land, recovery of possession and perpetual injunction can be determined through the three legal standards of acquisition, identity or boundaries of the said subject land, and possession or right to possession. I propose to dispose of the issues under one broad headings. In doing so, I may combine some of the issues, or may not necessarily deal distinctly with each one individual issue at a time.

 

8.6 This stems from the fact that the court may where necessary combine issues set down in its determinations. In a decision that persuades this court, the Nigerian Supreme Court held in ETAJATA V. OLOGBO [200] 6 S.C. (PT 11), PP3-4 as follows:

“That from the record of appeal, it is obvious that what the Court of Appeal did was to consider together a number of issues, instead of taking each issue distinctly and pronouncing upon them separately, which approach is perfectly in order.”

Thereafter, I shall peruse the defence that are available in an action for declaration of title, recovery of possession and perpetual injunction.

8.7 If I may ask, between the Plaintiffs and the 3rd Defendant who owns the subject-matter land? In the case under consideration, the Plaintiffs trace their root of title to an auction sale that took place on the 3rd day of November, 2016. See Exhibit B, a copy of the Certificate of Purchase. Thereafter they procured a Land Title Certificate covering the subject- matter land. A copy of the Land Title Certificate was tendered as Exhibit C.

8.8 A look at Exhibit C, the land certificate depicts it is coming from the Land Title Registry. Under the law the right of a registered proprietor of land acquired for valuable consideration shall be indefeasible. An indefeasible title means a complete assurance to all adverse claims on mere production of the certificate.

8.9 Her Ladyship, Mrs. Georgina Wood in the case of AMEGASHIE V. OKINE [1992] 2 GLR, 319 held that the certificate raises a rebuttable presumption and not a conclusive presumption of the holder’s title. The certificate can therefore be challenged provided evidence is led in proof of its irregularity.

9.0 By section 20 of the Evidence Act (NRCD 323) a rebuttable presumption imposes upon the party against whom it operates the burden of producing evidence and the burden of persuasion as to the non-existence of the presumed fact. The duty of producing evidence to question the validity of the certificate lies on the party challenging it. It is also salient to note that the 3rd Defendant also relied on a land certificate. See Exhibit 2, a copy of the Land Certificate.

9.1 Paragraphs 6 and 7 of the witness statements of the 1st and 2nd Defendants read:

“6. Unfortunately, during the demolition a short wall of about four feet high on the common boundary of the land of the station and a parcel of land belonging to Pacific Solution (the Plaintiffs herein) was mistakenly pulled down. [Emphasis supplied].

7. However same has been reconstructed by the 1st Defendant through one Dr. Ahmed to whom the 1st Defendant had leased five

(5) acres of the land adjoining the disputed land for a greenhouse and hydroponic centre. The reconstructed wall was built on the foundation of the previous wall.”

9.2 The above testimony of the 1st and 2nd Defendants depicts the admission of the Plaintiffs ownership of the subject matter land. In fact they even admitted they share a common boundary with the Plaintiffs. In contrast, the 3rd Defendant trace their root of title to top Kings Limited. It is the testimony of the 3rd Defendant that they acquired the subject matter land from Top Kings Limited on the 26th day of February, 2016, the original owner of the subject matter land.

9.3 This piece of evidence was corroborated by DW1, the site manager of Top Kings Limited who volunteered the following answers when he was cross examined on the issue as follows:

“Q: You remember that on 26th February 2016, you executed an indenture transferring your purported interest to the 3rd Defendant.

 

A: Yes I know of it as the site manager but I was not the one who signed the document. However before the said attachment we had already sold the land to the 3rd Defendant. It is therefore my evidence that the Plaintiff did not attach the land we pointed out to them even though same was closer to the land we showed them.”

9.4 There is no evidence before me that on the attachment and sale of the subject land the judgment/debtor, Top Kings Limited, the 3rd Defendant’s grantor protested.

9.5 There is evidence before me that as at the time the 3rd Defendant allegedly acquired the subject land same had already been attached in execution of the judgment obtained against their grantor. These were the answers the representative of the 3rd Defendant offered when he was cross examined on the issue.

“Q. I am suggesting to you that per Exhibit E attached to the 2nd Plaintiff’s witness statement, the notice of attachment was a public knowledge.

A: Yes but the date as per the exhibit is December, 2015, by which time the 3rd Defendant had acquired the property.” [emphasis supplied].

9.6 There is evidence before me that per Exhibit 1, the 3rd Defendant acquired the subject land on 26th February, 2016. This was what DW1 told the court when he was cross examined on the issue:

“Q: Kindly take a look at this indenture, Exhibit 1 and tell us the date. A: 2016.

Q: I am putting it to you that Exhibit 1 was executed on 26th February 2016 and signed by your managing director.

A:  Yes it was signed by the managing director.” [Emphasis supplied].

 

9.7 This clearly depict that as at the 26th of February, 2016 when the subject land was sold to the 3rd Defendant same had already been attached on 5th January, 2016 in execution of a judgment obtained against their grantors.

9.8 On the attachment of the subject property, counsel for the 3rd Defendant submits that under our laws the mere issuance of a writ of fi.fa. by the court does not automatically seize the property in question for public sale without notice of attachment. And that a writ of fi.fa. is merely authority granted to the Sheriff/Bailiff to execute judgment by seizing the judgment debtor’s property. Issuance alone creates no legal seizure or attachment. And that in the case of GHANA COMMERCIAL BANK LIMITED V. J. K. ACKAH ENTERPRISE LIMITED & MRS. ACKAH KOFI ABAIDOO [2013] DLCA 8086 decisively confirms the above position that a writ of fi.fa. does not automatically attach a property upon issuance. The court held:

“that a writ of fi.fa. does not expire once the property in respect of which it is issued is attached or execution levied within twelve (12) months from the date the writ was issued. Execution is a process, and the procedure is trite learning. However, because of the arguments proffered in this appeal I shall go into some detail. Execution commences with the filing of the Entry of Judgment. A writ of fieri facias being a writ of execution is part of the execution process used to seize or attach the property of a judgment debtor. Hence once the property in question is seized the writ of fi. fa. Is executed.

The position of the law clearly is that once the property of the judgment debtor is seized or attached by the Sheriff within 12 months the writ of fi. fa. is duly executed under Order 44 rule 9. After this the rest of the execution process can take as long as possible; so long as it does not exceed twelve (12) years as provided in the Limitation Act, 1972 (NRCD 54) when the judgment itself automatically lapses. Once the property is attached, the writ of fi.fa is executed. The procedure, which is common knowledge, is that attachment is effective upon seizure by the Deputy Sheriff or by pasting on the property/taping or flagging of chattels, as the case may be. The auction sale of the property under the Auction Sales Law 1989 [PNDCL 230] is the conclusion of the execution process.

The writ of fi.fa issued on 28th July, 2009 therefore had not expired since attachment of the property in question had been done within the 12 month period. From the records, the particulars of Attachment was filed on 28th July, 2009. The issue of renewal of the writ of fi.fa would only arise if after the initial attachment the Sheriff was to further attach other properties of the judgment debtor after 12 months from the date the original writ of fi.fa was issued. Under such circumstances, the respondent would be required to renew the writ after the expiration of the 12 months period.”

9.9 Counsel continued that as gleaned from the case above, the writ of fi.fa merely authorizes the Sheriff to levy execution and does not, in itself, constitute attachment. Counsel contends that the Plaintiff’s own Exhibit F, the Attachment of Immovable Property by the Sheriff” expressly states: “the judgment debtor is hereby prohibited from alienating the property below mentioned”. It is thus this notice that formally attached the property on 28th September, 2016 and not the mere issuance of the writ of fi.fa. Therefore any argument that the land in question was attached prior to this date cannot be supported by the civil procedure rules and case law as actual execution occurs only upon physical seizure/attachment of the debtor’s property. And that until such attachment, third parties may validly deal with the property.

10.0 That Order 45 of C.I 47 is reiterated as follows: Order 45 – writs of fieri facias.

 

Rule 1 – Nature of Writ of Fieri Facias

(1) A judgment or order for the payment of money may be enforced by a writ of fieri facias.

(2) Where a writ of fieri facias is issued it shall be executed by the seizure and sale of the debtor’s property sufficient to satisfy the amount of the judgment debt together with post-judgment interest at the appropriate rate until payment and the costs of the execution.

Rule 4 – Methods of putting Writ into effect.

(1) Subject to the other provisions of this Order and to the provisions of any other enactment, a writ of fieri facias shall be put into effect.

(a) In respect of any movable property in the possession of the judgment debtor by actual seizure; the

(e) In respect of immovable property or any interest in immovable property, whether at law or in equity, by a written order prohibiting the judgment debtor from alienating the property or any interest in the property by sale, gift or in any other way, and prohibiting all persons from receiving it by purchase, gift or otherwise.

10.01 It is also the submission of counsel that it is clear from the rules of court that the case law above that the mere issuance of the writ of fi.fa does not automatically seize the property. The court sheriff must by a written order, in this case, the notice of attachment Exhibit F, prohibit the judgment debtor from alienating the property or any interest in the property by sale, gift or in any other way, and prohibiting all persons from receiving it by purchase, gift or otherwise.

 

10.02 In this instance, even though the 3rd Defendant attempted to present to court with receipts during his cross examination proving that the property was indeed sold to the 3rd Defendant before the writ of fi.fa was issued and was refused such audience, the fact still remains that the notice of attachment which officially seized the property and prevented its sale/alienation is dated 28th September, 2016 and by that time, the 3rd Defendant already had its indenture which is dated 20th February, 2016, 7 months after the 3rd Defendant obtained its indenture from Top Kings and this fact could not be discredited by counsel for the Plaintiffs during cross examination.

10.03 See the cross examination of the 3rd Defendant’s representative by counsel

for the Plaintiffs on 26th day of January, 2026:

“Q:  Per your Exhibit 1, you purchased this property in February 2016. Correct?

A: That is not correct. As I said negotiations to buy the land started in 2014, payment was done earlier 2015 and this document was given to us earlier 2016.

Q: Per your paragraph 4 the sub-lease executed between Top Kings Enterprise and the 3rd Defendant was on 26th February, 2016.

A: Yes that was the day the indenture was finally handed over to the 3rd Defendant. As I said earlier a search, negotiation, inspection of the land and all activities related to this purchase preceded this date.

Q: I am suggesting to you that that per your own Exhibit 1, you legally acquired this land on 26th February, 2016.

A:  That is never true.

Q:  Are you aware that a Writ of FIFA was issued by the High Court, Accra on 5th January, 2016 attaching Top Kings Enterprise immovable properties for sale.

 

A: I heard this in this court. The purchase was done early 2015 by which time the said property did not belong to Top Kings.

Q: Do you have any evidence before this court to back your assertion that you purchased this land early 2015.

A: Yes a receipt was issued.

Q: Can you show this court the receipt? A: I do not have the receipt with me here.

Q: So it is true that you do not have any evidence before the court suggesting that you purchased the subject land early 2015.

A: That is not true.

Q: Are you aware that the Writ of FIFA specifically prohibited Top Kings Enterprise from selling, leasing or gifting the subject property or disposing any of the attached properties.

A: I have stated already by the time the said attachment was done this particular piece of land was already in possession of the 3rd Defendant and therefore could not be attached to Top Kings properties.

Q: You would agree with me that once the Writ of FIFA was issued and the properties of Top Kings was attached in 2015, Top Kings could not have lease the subject land to you.

A: That is not true. You keep talking about attachments, the property acquired by the 3rd Defendant was before the attachment and so if Top Kings properties were attached, I see no reason why it should affect the 3rd Defendant’s property.

 

Q: Therefore when Top Kings executed that lease in February 2016, it did so at the time its properties were already under attachments.

A: That is never true. I have provided answers to this question several times that before the attachments were done out of about 17 acres of plots of land there, that one acre plot was purchased by the 3rd Defendant earlier on before the court process. So if a thorough search was done, the 2nd Plaintiff would have also seen that that one acre plot did not belong to Top Kings.”

10.04 See also the cross examination of the 3rd defendant’s witness by counsel for

the Plaintiff on 27th January, 2026:

“Q: You remember that on 26th February 2016, you executed an indenture transferring your purported interest to the 3rd Defendant.

A: Yes I know of it as the site manager but I was not the one who signed the document. However before the said attachment we had already sold the land to the 3rd Defendant. It is therefore my evidence the Plaintiff did not attach the land we pointed out to them even though same was closer to the land we showed them.

Q:  I suggest to you that on 3rd November 2016 the auction was done.

A: On the day you mentioned 3rd November prior to the auction the land had long been sold for which reason same did not belong to Top Kings at the time.”

10.05 In the circumstance, counsel urged the court to disregard the Plaintiffs’ evidence on the attachment of the property through a writ of fi.fa, as it is riddled with inconsistencies and unsupported by law, the Plaintiffs’ submissions thus fails to meet the standard of proof required. And that in any event, the 3rd Defendant Company has consistently averred that the sale to it was perfected long before any purported fi.fa was issued and any

 

subsequent attachment took effect on 28th September, 2016 when the notice of attachment was issued.

10.06 Also the courts in Ghana have consistently held that documentary evidence riddled with material inconsistencies; particularly conflicting dates may be rejected or accorded minimal weight where such discrepancies go to the root of authenticity, credibility, or the transaction’s validity. In the case of OBAAPANYIN ADWOA ASANTEWAA SUBST. BY: KIMBERLY FRIMPONG V. ABENA KONADU SUIT NO. H1/260/2022 dated 26th

June, 2025, Barima Oppong, JA delivering the unanimous judgment of the court of appeal noted that inconsistencies noted on evidence of a party ought not to be overlooked. Where such inconsistencies are decorously considered and the impression is created that it weakens the credibility and validity or truthfulness of a party’s case, the court ought to dismiss that party’s claim. Thus the court held: “My Lords, in our opinion, the cumulative effect of the Effisah and Bempomaa cases is that unless a party would succeed on his/her case despite inconsistencies apparent on the face of the record, such inconsistencies ought not to be overlooked. Rather, they should be decorously considered, and where, in so doing, the impression created weakens that party’s case particularly with regard to their credibility or truthfulness the court ought to dismiss that party’s claim. In our view, the contradictions in the evidence of the plaintiff’s witnesses were so material that they cannot be disregarded.”

10.07 It is also the submission of counsel that there is no scintilla of evidence before this court to suggest that Nungua Farms Limited exceeded the

976.466 acres granted to it by the Government of Ghana. And that all parties are ad idem that the disputed land falls squarely within the portion lawfully sub granted by the Nungua Farms Limited to Top Kings Limited, from which the 3rd Defendant subsequently acquired its interest. This issue

 

is therefore otiose and of no legal effect, as it neither advances the Plaintiffs’ claim nor impugns the chain of title. The Plaintiffs bear the burden of proof and have adduced none. This court is thus invited to resolve Issue (e) in the negative.

10.08 Counsel submits that on the issues (f) and (g), the 3rd Defendant Company has interest in about one acre out of the land the Plaintiffs are claiming. And that of no material time has the 3rd Defendant observed any fence wall enclosing its duly alienated portion. If any wall existed, it could not have encroached on the 3rd Defendant’s land, as the 3rd Defendant asserted possession in 2016 by clearing the site with heavy-duty earth-moving equipment and enjoyed undisturbed possession thereafter until assigning its interest in 2019.

10.09 In contrast counsel for the Plaintiffs submits that the Supreme Court also held on the nemo dat quod non habet maxim in the unreported consolidated Suit No. 81/92 and L 20/92 dated 16th March, 2011 entitled MRS. CHRISTIANA EDITH AGYAKWA ABOA V. MAJOR KEELSON (RTD.) and OKYEAME YIMA & ANOR. V. MAJOR KEELSON as follows:

“It can thus be safely concluded that, the principle nemo dat quod non habet applies whenever an owner of land who had previously divested himself of title in the land previously owned by him to another person, attempts by a subsequent transaction to convey title to the new person in respect of the same land cannot be valid. This is because an owner of land can only convey what he owns, and having already divested himself of title, the new occupant of the Begoro Stool, Nana Antwi Awuah III cannot revoke what his predecessor had done.”

 

11.00 In addition, in the case of SEIDU MOHAMMED V. SAANBAYE KANGBEREE [2012] 2SCGLR 1182, the court noted as follows: “this principle of nemo dat quod non habet operates ruthlessly and by it an owner of land can only convey title that he owns at the material time of the conveyance…”

11.01 Counsel submit that the authorities cited above clearly establish that the nemo dat rule is not merely persuasive but binding and consistently applied in Ghanaian jurisprudence. The principle operates in three critical situations:

a. where a grantor never had title at all;

b. where the grantor had title but has already divested himself of it;

c. where the grant’s interest has become legally restricted or

encumbered.

11.02 In each of these circumstances, any subsequent conveyance is void to the extent of the defect in the grantor’s title. Also it is important to emphasize that the doctrine applies not only where title has been absolutely extinguished, but also where the grantor’s powers of alienation have been curtailed by operation of law. Thus, if the law has intervened to restrict a person’s power to deal with property, any purported transfer made in breach of that restriction falls within the nemo dat prohibition.

11.03 Counsel submits that having set out the law on nemo dat, it is equally necessary to examine the legal consequences of attachment under a writ of fieri facias (fi.fa). That Order 45 Rule 1 of the High Court Civil Procedure Rules, 2004 CI. 47 provides that a judgment or order for the payment of money may be enforced by a writ of fieri facias. The writ of fieri facias is therefore the statutory mechanism through which a monetary judgment is enforced.

 

11.04 And that under Rule 2, once the writ is issued, it shall be executed by the seizure and sale of the debtor’s property sufficient to satisfy the judgment debt together with post-judgment interest and the costs of execution. Execution under a writ of fi.fa thus operates directly against the property of the judgment debtor.

11.05 Where immovable property is involved, Order 45 Rule 4(1)(e) of CI. 47prescribes the method of putting the writ into effect. It requires a written order prohibiting the judgment debtor from alienating the property or any interest in it by sale, gift or in any other manner, and further prohibiting all persons from receiving the property by purchase, gift or otherwise.

11.06 The Registrar may also, by direction of the court, take and retain actual possession of the property. The legal consequence of attachment under this rule is profound. Once immovable property is attached under a writ of fi.fa, the judgment debtor is legally restrained from dealing with that property. He cannot validly sell it, gift it, mortgage it, or otherwise dispose of it. Equally, third parties are prohibited from receiving it. The property comes under the control and authority of the court, and any purported alienation in breach of that prohibition is ineffective against the execution process.

11.07 The sale of property in execution is governed by Order 45 Rule 8, of CI. 47, which provides that sales in execution of judgments shall be made under the direction of the Registrar and conducted according to such orders as the Court may make. The sale is therefore a judicial sale conducted under the court’s supervision. Order 45 rule 10 of CI. 47 permits an application within twenty-one days to set aside the sale on the ground of material irregularity, but the sale will not be set aside under substantial injury is proven.

 

11.08 Under Rule 11, if no such application is made, or if made and dismissed, the sale becomes absolute and the court grants a certificate to the purchaser stating that he has purchased the right, title and interest of the judgment debtor in the property sold. Rule 11(4) further provides that the certificate of purchase is a valid transfer of the right, title and interest of the judgment debtor.

11.09 The language of Rule 11 is deliberate and limiting. What passes to the purchaser is not an independent or indefeasible title; it is strictly the right, title and interest of the judgment debtor. Counsel submits that this position was affirmed by the Supreme Court in PARTNERS HEALTH SERVICE V. BIKKAI LIMITED & OTHERS (Suit No. J4/48/2015), where the court held that:

“The law is settled that a purchaser of property sold upon a writ of fi.fa acquires only such title as the judgment debtor had in it.”

12.00 During cross examination, the 3rd Defendant representative testified as follows:

“Q: Per your Exhibit 1, you purchased this property in February 2016.

Correct?

A: That is not correct. As I said negotiations to buy the land started in 2014, payment was done earlier 2015 and this document was given to us earlier 2016.

Q: Per your paragraph 4 the sub-lease executed between Top Kings Enterprise and the 3rd Defendant was on 26th February, 2016.

A:  Yes that was the day the indenture was finally handed over to the 3rd Defendant. As I said earlier a search, negotiation, inspection of

 

the land and all activities related to this purchase preceded this date.

Q: I am suggesting to you that that per your own Exhibit 1, you legally acquired this land on 26th February, 2016.

A: That is never true.

Q: Are you aware that a Writ of FIFA was issued by the High Court, Accra on 5th January, 2016 attaching Top Kings Enterprise immovable properties for sale.

A: I heard this in this court. The purchase was done early 2015 by which time the said property did not belong to Top Kings.”

12.01 Per the answers supra the 3rd Defendant’s witness admits that the indenture between Top Kings Enterprise Limited and the 3rd Defendant was executed and handed over to them on 26th February, 2016.

12.02 That is the very document upon which they rely on as proof of title. It is therefore the operative instrument of transfer. Whatever negotiations may have preceded that date, whatever inspections or searches may have been conducted, title in land does not pass by negotiations. It passes by execution of a valid instrument by a party legally capable of transferring an interest at the material time. See sections 34 and 35 of the Lands Act, 2020, Act 1036.

12.03 The documentary evidence before this court shows that a writ of fieri facias was issued on 5th January, 2016 in Suit No. AP 54/2015 between GODFRED YEBOAH DAME V. TOP KINGS ENTERPRISE LIMITED, marked as

Exhibit F. Prior to that, a notice of attachment dated 7th December, 2015, tendered as Exhibit E, had been duly served in accordance with Order 45 Rule 4(1) (e) of CI. 47. [Emphasis supplied].

 

12.04 That notice expressly prohibited the judgment debtor, Top Kings Enterprise Limited, from alienating the attached immovable property and further prohibited all persons from receiving same. The legal consequence of that attachment is not discretionary; it is automatic. Once the written order prohibiting alienation was issued and served, Top Kings Enterprise Limited became legally restrained from dealing with the property. It could not validly sell, assign, sublease, gift or otherwise dispose of any interest in the 17 acres described in the writ. The property, at that stage, came under the control and authority of the court. The 3rd Defendant could not have purchased any portion of the land under the control and seizure of the Registrar since the notice of attachment was a public notice.

12.05 I have noticed a salient legal issue that this court cannot gloss over. A look at Exhibit F, the writ of fi.fa is dated January, 2016. A further look at Exhibit E, the notice of attachment is dated 2015.

Under Ghana law, particularly under the High Court Civil Procedure Rules, 2004 (CI. 47) and the Sheriff and Civil Processes Act, a Writ of Fieri Facias (Writ of Fi.Fa) and a Notice of Attachment are distinct stages in the enforcement of a “money” judgment.

. Writ of Fieri Facias (Fi.FA) is the authority or court process used to initiate the seizure and sale of a debtor’s property to satisfy a judgment debt.

. Notice of Attachment is the formal announcement or written notification that specific property has been legally seized by the Sheriff and is now in the custody of the court.

12.06 DEFINITION AND PURPOSE:

 

Writ of Fi.Fa: It is a writ of execution commanded by the court to the sheriff to seize and sell the movable (and sometimes immovable) property of a judgment debtor to satisfy a debt. It is the “process” of execution.

Notice of Attachment: It is the official document issued by the Sheriff (often after serving the writ) that formally attaches (freezes/seizes) the property, prohibiting any sale or transfer by the debtor.

12.07 SEQUENCE OF EVENTS:

Writ of Fi.Fa comes first, the judgment creditor files for this to being the process.

The Notice of Attachment comes second, it is the action taken pursuant to the writ, informing the debtor that their property is now locked down for sale.

12.08 This clearly depicts that Exhibit E sins against the law. However that notwithstanding same was notice to the whole world that the subject land had been attached in execution of the judgment.

It is trite that where a wrong order is given by a court parties are obliged to respect same until same is set aside.

12.09 In the circumstance, I hold that as at the time Top Kings Limited executed the indenture in favour of the 3rd Defendant on 26th February, 2016, they knew same had already been attached in execution of the judgment. It is my considered view that Top Kings Limited instead respecting the components of Exhibit E, however bad it was until same was set aside, they rather went ahead to transfer the subject land to the 3rd Defendant when they had no interest in the property at the time as a result of the attachment.

13.00 The 3rd Defendant during cross examination further testified thus:

 

“Q: Do you have any evidence before this court to back your assertion that you purchased this land early 2015.

A: Yes a receipt was issued. [Emphasis supplied].

Q: Can you show this court the receipt?

A: I do not have the receipt with me here. [Emphasis supplied].

Q: So it is true that you do not have any evidence before the court suggesting that you purchased the subject land early 2015.

A: That is not true.”

13.01 The failure of the 3rd Defendant to tender copies of the said receipts clearly made it difficult for the court to form an opinion on the 3rd Defendant’s contention that they acquired the subject land in early 2015. In his written address counsel for the 3rd Defendant created an impression that the 3rd Defendant attempted tendering the said receipts but was not given audience by the court.

13.02 It is salient to note that if really the 3rd Defendant had the said receipts they would have attached same to their witness statement. In fact the 3rd Defendant during cross examination told the court that he did not have the receipts on him. If really the 3rd Defendant had in their possession any receipt evidencing the said transaction, they would have tendered same when counsel for the 3rd Defendant was given the opportunity to re- examine his client since the issue of the receipts cropped up during cross examination by laying the essential foundation but he failed to do so especially when per the evidence on record, counsel for the Plaintiffs never asked the 3rd Defendant to produce the said receipts during cross examination.

 

13.03 In their statement of defence filed on 28th September, 2018, the 1st and 2nd Defendants denied the Plaintiffs’ claim and counter-argued that in or about 1940, the Government of Ghana (GoG) compulsorily acquired a large tract of land measuring approximately 2,400 hectares from the Nungua Stool. Over the ensuring years, portions of the land of varied measurement were granted to the University of Ghana for the Legon Farms, the Ghana Turf Club and for the construction of affordable housing. 95 acres of the said land was set aside for the Ministry of Food and Agriculture for the establishment of the Nungua Livestock Farms.

13.04 On 25th September, 2008, the Government of Ghana entered into an agreement with the Nungua Stool for the return of 976.466 acres of the land to the Stool. The Stool sold off the returned land and eventually entered into the 95 acres reserved for the Nungua Livestock Farms. The 1st and 2nd Defendants therefore argued that the land in dispute was wrongfully sold to Top Kings Limited, the Plaintiffs’ grantor because the Stool did not have any interest in same to transfer to Top Kings Limited.

13.05 The 1st and 2nd Defendants further asserted that the demolition exercise only removed structures that had been illegally sited on the Nungua Livestock lands and that when the Plaintiffs instituted the instant suit, the Ministry of Food and Agriculture caused the wall to be reconstructed. Consequently, the 1st and 2nd Defendants vehemently opposed the Plaintiffs’ claim for GhS421,250.00 as being the value of the demolished fence wall.

13.06 There is evidence before me that in view of the conflicting claims, the court ordered on 16th November, 2018 that parties file survey instructions for the preparation of a composite plan. The composite plan received from the Survey and Mapping Division of the lands Commission showed that the land in dispute was separate from the Nungua Livestock Farm lands

 

thereby confirming that the Plaintiffs had not encroached upon the 1st

Defendant’s land.

13.07 Consequently, the 1st and 2nd Defendants withdrew their challenge to title of the land in dispute. However, the 1st and 2nd Defendants maintained their challenge to the Plaintiffs’ claim for damages of Four Hundred and Twenty- One Thousand Two Hundred and Fifty Ghana Cedis (GhS421,250.00) hence conducted their case at trial on that score.

13.08 The Plaintiffs bear the burden of producing evidence and the burden of persuasion on their claim for damages of GhS421,250.00 as being the value of the demolished fence wall. In answer to this burden, the Plaintiffs tendered Exhibit S, a valuation report prepared by one E. O. Katanka Appiah, a registered surveyor. The Plaintiffs tendered the said Exhibit S as an expert report to establish the value of the demolished wall and to substantiate their claim for GhS421,250.00 against the 1st and 2nd Defendants. The 1st and 2nd Defendants vehemently dispute the propriety and credibility of Exhibit S and contend that same should be completely disregarded by this court because it is riddled with inaccuracies, contradictions and grossly inflated figures.

13.09 Counsel for the 1st and 2nd Defendants submits that in MFUM FARMS & FEED LIMITED V. MADAM AGNES GYAMFUAH (Suit No. J4/25/2017),

the Supreme Court in a judgment dated 24th October, 2018 restated this principle “in coming to this understanding, we are not unaware of the legal position stated in a good number of respected judicial decisions that, a court is not bound by the evidence relating to an expert’s opinion such as the surveyor in this case.” This position of the law was reiterated by the apex court of the land in KOJO BAAH (SUBT. BY JENNIFER BAAH) V. GHANA WATER AND CHINA GERZOUBA GROUP (Civil Appeal NO.

J4/52/2022), where the Supreme Court per Amadu JSC held that “it is

 

settled law that a court is not bound to adopt the evidence of an expert witness. Reasons ought to be given for the rejection or acceptance of the expert evidence.”

14.00 the 1st and 2nd Defendants submit that on the strength of the above quoted decisions, this court, being the final arbiter of the value of the demolished wall, must evaluate Exhibit S, based on methodology, independence and evidentiary support in order to come to a decision on whether to adopt same or reject it..

14.01 As demonstrated at trial during the cross-examination of the 2nd Plaintiff on 5th March, 2025, assuming without conceding that the fence wall was in fact constructed around the entire perimetre of the land in dispute, and that the per square meter (m2) value of same is Two Hundred and Fifty Ghana Cedis (GhS250.00), the cost of GhS421,250.00 remains grossly inflated. This is because the calculations underpinning that figure disregard basic and universally accepted principles of geometry and construction measurements.

14.02 Counsel submits that the formula for calculating the Area of a rectangular 4-sided wall, such as the one in issue in this matter, is universally accepted as length × Height. It is also trite that the standard unit of measurement for the Area of a wall is either square meters (m2) or square feet (ft2) depending on the system of measurement being used. Measurements in the metric system adopts the use of meters (which includes square meters), kilograms and liters while measurement in the imperial system employs the use of foot, pounds and gallons. Measurements in either system may be freely converted into the other by use of a universally accepted conversion rate or factor.

 

It is undoubted that to convert a value from square feet to square meter, one will have to multiply the value in square feet by 0.092903 and convert from square meters to square feet, you multiply the value in square meters by 10.7639 to get its equivalent in square feet. Thus for instance, 200 square feet in square meters is:

200×0.092903=18.58 square meters.

14.03 It is not in dispute between the parties that both systems of measurement can be used in valuation because Exhibit S makes use of both systems of measurement to arrive at the value of GhS421,250.00.

In this case, it is claimed on pages 6 and 16 of Exhibit S that the land in dispute was divided into two sections and covered by two sub-leases; one in the name of the 1st Plaintiff and the other in the name of the 2nd Plaintiff. The length (perimetre) of Property A is said to be 920.57 feet and that of Property B is 842 square feet. The valuer then purports to convert the said values to square meters and arrives at values of 281 square meters and 257 square meters for Property A and land B respectively.

14.04 Having established the perimeters of the land supra, Counsel for the 1st and 2nd Defendants reiterated the manifest and inherent contradictions in Exhibit S in respect of the issue of the height of the wall, and to drew the court’s attention to same. On page 6 of Exhibit S and under the heading of “Brief description of the property”, the following statement is made. “The subject property is an undeveloped land but has two separate documents with about 8 feet sandcrete black fence wall with two double leafed metal gate mounted at the entrance of the property. At the time of inspection, the fence wall had been demolished which shows visibly the debris (sic)”. Counsel however contends that in his calculation of the Area of the wall, the valuer indicates a height of 3 meters and not 8 feet. The 1st and 2nd

 

Defendants contend that this is deliberate. And that the valuer intentionally adopts a different unit of measurement so as to mislead the court and to exaggerate the actual height of the wall since 3 meters is equivalent to 9.8 feet and not 8 feet as stated in the same Exhibit S, as reproduced above. [Emphasis supplied].

14.05 The calculations presented in Exhibit S were put to the 2nd Plaintiff in cross examination on 5th March, 2025 by counsel for the 1st and 2nd Defendants and the following exchange that ensued:

“Q  What is the equivalent of 920.57 square feet in square meters?

A: I do not have the conversion factor. If counsel gives me the conversion factor I will compute it.

Q: The conversion factor is 10.764. A: It is 85.52.

Q: Let’s move to property B fenced wall on page 16 of Exhibit S, the figure there is 842 square feet. Is that correct?

A: That is correct.

Q: I put it to you that 842 square feet when converted into square meters is 78.22 square meters and not 257 square meters as stated in Exhibit S.

A: Again the cadastral instrument that was used picked an area of 257 square meters on property B and there was no conversion factor calculation used.

Q: Is it your testimony that the valuer converted the area of the wall from square feet to square meters without applying the conversion factor.

 

A:  The valuer used the cadastral instrument to pick the area as stated as 257 square meters.

Q: I put it to you that the cost of the wall in respect of property B is GhS58,665.00 and not GhS210,500.00 as you are claiming.

A: That is not correct. Again the area that counsel used was based on conversion from imperial to metric system and the unit of measurement used in this report by the valuer is the metric system.”

14.06 Per the evidence on record it was not the Plaintiffs’ who valued the subject matter fence wall. Clearly it is the said valuer who can best tell the court how he came by those conclusions in Exhibit S. However, he was not called to testify notwithstanding the fact that he is a material witness to the success of the Plaintiffs’ claim for damages. In the circumstance, I hold that it will be fatal for this court to rely on same.

14.07 Per my analysis as above discussed, I hold that the 3rd Defendant failed to prove his counterclaim for which reason I dismiss same accordingly. In contrast, I hold that the Plaintiffs were able to prove their case for which reason I enter judgment for the Plaintiffs per all the reliefs endorsed on their writ of summons save reliefs (c) and (e) since there is evidence before me that the 1st and 2nd Defendants, their boundary owners subsequently re- constructed the demolished fence wall. Cost of GhS20,000.00 against each of the Defendants and in favour of the Plaintiffs.