Joseph Achibald Kofi Acquah Vrs Attram Tetteh [2022] GHACC 22 (3 October 2022)

IN THE CIRCUIT COURT HELD AT AMASAMAN – ACCRA ON MONDAY THE 3RD DAY OF OCTOBER, 2022 BEFORE HER HONOUR ENID MARFUL-SAU, CIRCUIT COURT JUDGE SUIT NO:C1/42/2017 JOSEPH ACHIBALD KOFI ACQUAH UNNUMBERED HOUSE MANHEAN, NEAR AMASAMAN … PLAINTIFF VRS. ATTRAM TETTEH UNNUMBERED HOUSE MANHEAN, NEAR AMASAMAN … DEFENDANT _____________________________________________________________________ PARTIES: PLAINTIFF ABSENT REPRESENTED BY MALIK ABASS DEFENDANT ABSENT COUNSEL: ANTHONY LARTEY ESQ. FOR PLAINTIFF ABSENT JOHNSON AMETORWO ESQ. FOR DEFENDANT ABSENT JUDGMENT By an Amended Writ of Summons and Statement of Claim filed on 7th December, 2017, Plaintiff claims against Defendant the following reliefs: a. “An order of perpetual injunction restraining defendant herein, his agents, assigns, workmen, privies and all who claim through or under him from interfering with plaintiff’s rights of ownership over plaintiff’s land. b. General damages for trespass c. Costs including legal fees d. Any order(s) as to this honourable court may deem fit.” Plaintiff says that sometime in 1990, he acquired a 99 year lease for a piece of land from Nii Ayikortor II the Manhean Mantse and accredited head and lawful representative of Manhean family stool and received an indenture in 2007. Plaintiff says that he acquired a Land Title Certificate with registration number GA 29984 volume 014 folio 217 at the Land Title Registry. He says that in or about 1993 he entered full occupation and possession of his land by building a dwelling house and planting trees on the boundaries. It is the case of Plaintiff that in April, 2017 Defendant without his permission cut off some of his hedges and boundary trees, so he confronted him and Defendant informed him that the leaves from the hedges were making his house dirty hence the action. Plaintiff says that in May, 2017, Defendant prevented workmen hired by him to construct a fence wall along the northern boundary of his land claiming to be owner of same hence the instant action. Defendant entered appearance on 16th June, 2017 and filed a Statement of Defence on 7th July, 2017. He contends that he granted Plaintiff a portion of his land and Plaintiff went to get an indenture without his knowledge. According to him, he has been farming on the land since 1978 and has his residence on the land. It is his case that Plaintiff registered more land than he was given hence the measurement in his Statement of Claim is different from that on the Site Plan. He says that it is rather the Plaintiff who has trespassed on his land, so Plaintiff requested Nii Akwashong, one of the elders at Manhean to demarcate the land for them but during the demarcation when Plaintiff realized that the measurement showed that he had taken more than appeared on his indenture, he stopped Nii Akwashong from continuing with the measurement. He says that he travelled to Sunyani and on his return, he realized that Plaintiff had put up another structure on his land so he reported the matter to the Council of elders of Manhean but when they went to measure the land, Plaintiff drove them away and resorted to the instant action. Defendant says that Plaintiff’s reliefs should be dismissed. On 25th September, 2017, this court differently constituted adopted and set down the following issues for trial: 1. “Whether or not it was the Defendant who gave the present land the Plaintiff is occupying to Plaintiff. 2. Whether or not the Plaintiff had trespassed on the Defendant’s parcel of land. 3. Any other issues arising on the pleadings.” It is a trite principle of law that for a Writ of Summons to be competent, it must be endorsed with a substantive claim or relief to be enforced against the Defendant. Thus, a Defendant cannot issue a writ claiming an ancillary relief only. In the case of REPUBLIC VRS. HIGH COURT, TEMA; EX PARTE OWNERS OF MV ESSCO SPIRIT (DRAYA SHIPPING SA INTERESTED PARTY) [2003-2004] SCGLR 689; SC it was held as follows: ‚Since the writ issued by the interested party had not been indorsed with a substantive claim in accordance with the mandatory provisions of the High Court (Civil Procedure) Rules 1954 (LN140A), namely order 2, rr1, 3 and 6 and Order 3, r 3, it was a nullity upon which no valid orders could be based.‛ In this instant action, the claim by Plaintiff is for an order for perpetual injunction, general damages for trespass and costs. These are not acceptable substantive claims. See also: A Practical Guide to Civil Procedure in Ghana, Special Edition, by S. Marful-Sau, 2017 at pg. 27. Thus, the reliefs endorsed on the Writ of Summons do not meet the test of a substantive claim. This notwithstanding, there are instances where it has been held that though a substantive claim is not disclosed, a reading of the Writ of Summons and Statement of Claim together could cure the defect. In the case of HYDRAFOAM ESTATES (GH) LTD VRS. OWUSU (PER LAWFUL ATTORNEY) OKINE & OTHERS [2013-2014] 2 SCGLR 1117; SC it was held as follows: ‚The indorsement in the plaintiffs’ writ of summons for an injunction, restraining the defendant from interfering with the plaintiffs’ possession of the disputed land, was not for any substantive relief known in law. Such a claim would have been declared void in law. However, upon reading the writ together with the accompanying statement of claim, the defect in the writ was cured by the statement of claim filed together with the writ.‛ Also, in OPOKU & OTHERS (NO 2) VRS. AXIS CO LTD (NO 2) [2012] 2 SCGLR 1214, it was held that: ‚In the instant case, the writ of summons ought to be read together with the statement of claim in order to determine if there was any cause of action before the trial court because a statement of claim might in appropriate cases, as provided in rule 15(2) of Order 11 of the High Court (Civil Procedure) Rules, 2004 (CI47), amplify or diminish the scope of the writ on which the cause of action was founded. The cause of action for that purpose must be determined by looking only at the writ and accompanying statement of claim, without any extrinsic document… ‛ In this case, reading the Writ of Summons and Statement of Claim together, there appears to be a claim for land on the northern boundary of land which Plaintiff contends he acquired a Land Title Certificate for against the Defendant. Thus, the issue this court shall consider from the cause of action disclosed is “whether or not the disputed area forms part of the land Plaintiff claims ownership over by virtue of a Land Certificate.” I shall thus proceed to determine the issue raised. Plaintiff testified that the land in dispute was originally occupied by some Ghanaians who returned around 1983 with the permission of the Manhean Stool and some Nigerian returnees voluntarily vacated the land in the 1980s. He stated that his mother who was a subject of the Manhean stool moved into possession of the land with the consent of the stool and farmed on same until 1989 when she stopped farming as the land had lost its fertility. He testified that in 1990, he went unto the land and made a farm and built a dwelling house. According to him, in 1993, his mother presented drinks and money to the Mankralo of Manhean in respect of the land and planted different types of trees and hedges along their boundary with the Defendant of which Defendant never complained. He testified that in 2007, his mother died so he decided to perfect his title so he took a 99 year lease commencing 27th April 2007 from Nii Ayikortor II, the Manhean Mantse. According to him, he obtained an indenture in respect of the land and acquired a Land Title Certificate from the Land Title Registry with number, GA29984 which he tendered as Exhibit A. Defendant testified per his lawful attorney Thomas Tetteh. According to him, Defendant has been farming on the land in dispute since 1978. According to him, Defendant granted the land in dispute to Plaintiff, but Plaintiff measured the land to include more than he was given. According to him, the measurement of the land in Plaintiff’s Amended Statement of Claim is different from that which he has on the Site Plan of his registered land. He testified that it is rather the Plaintiff who has trespassed on his father’s land. To assist the court, determine this matter, an order was made for a Composite Plan to be prepared. The composite Plan, Exhibit CE 2 was duly prepared. (See. MADAM COMFORT OFORI VRS KWAME APPENTENG, CIVIL APPEAL NO. J4/ 17/ 2017 dated 6TH DECEMBER, 2017, Supreme Court, unreported). I note from Counsel for Defendant’s Written Address filed on 12th September, 2022 that he argues that Plaintiff did not depose to the issue of Nigerian returnees farming on his land in his Statement of Claim hence the Plaintiff had departed from his pleadings. In the case of EDWARD NASSER & CO LTD V MCVROOM [1996-97] SCGLR 468; SC it was held as follows: ‚If a party failed (as required by the Evidence Decree, 1975 (NRCD 323), s6(1) to object to the admission of evidence which in his view, ought not be led, he would be precluded by section 5(1) of the Decree to complain on appeal or review about the admission of that evidence unless that admission had occasioned a substantial miscarriage of justice. Factors helping to determine whether or not a substantial miscarriage of justice had occurred have been set out in section 5(2). Consequently, where evidence in respect of an unpleaded fact had been led without objection, the trial court was bound to consider that evidence in the overall assessment of the merits of the case, unless that evidence was inadmissible per se…‛ In the instant case, the evidence of who came to settle on the land first before Plaintiff came to acquire the said land does not constitute inadmissible evidence and since no objection was taken on these facts, this court could consider same as part of the evidence in determining this matter. I thus find that Defendant has failed to show how the admission of these facts has occasioned a miscarriage of justice in this matter. I observe from Exhibit A, which is the Land Certificate dated 10th June, 2010 that the extent of land described therein is 0.461 hectare (1.140 acres) more or less. I also note that per the Statement of Claim, the land in dispute is described as being 0.461 hectare (1.140 acres) with the coordinates correlating with that indicated on the cadastral plan. Therefore, there is no argument about the description of the land is in dispute per the Statement of Claim. It is a trite principle of law that an instrument confers no legal rights until it is registered. Section 111 of the LAND ACT, 2020 (ACT 1036) provides that ‘an entry in the land register shall be conclusive evidence of title of the holder of the interest specified in the land register.’ See also the case of AMUZU V. OKLIKAH (1998-99) SCGLR 141 where the Supreme Court affirmed the efficacy of registered instruments affecting land subject only to fraud and notice of adverse title to the registered instruments. In this case, Plaintiff possesses a Land Certificate which is conclusive evidence of Plaintiff’s interest in the land as described therein. In the case of ACQUAYE v. AWOTWI AND ANOTHER [1982-83] GLR 1110 it was held as follows: ‚…For it was a well-known rule of evidence that although proof in a civil case rested on the plaintiff, that burden was discharged, once the plaintiff had introduced sufficient evidence of the probability of his case.‛ From Exhibit CE2, which is the composite plan, Plaintiff’s land as shewn on the cadastral plan is shown edged yellow. The land of Defendant as shewn by his Site Plan is shown edged green. It is also apparent that Plaintiff has two buildings on the land both of which have part falling into the area in dispute as shown on the ground. From Exhibit CE2, it is apparent that the area in dispute falls within the land Plaintiff owns by virtue of his Land Certificate. I observe that there is an overlap of Defendant’s land into Plaintiff’s registered land. The land surveyed as shown by Defendant is shown edged purple and this land overlaps into Plaintiff’s land on his cadastral shown edged yellow. Also, there is a clear distinction between Defendant’s land as shewn by his Site Plan which he relies upon in proof of ownership of his land shewn edged green and his land as shown by him on the ground edged purple. In the case of NSIAH V ATTUAHENE [1992-93] 2 GBR 897 CA it was held as follows: ‚Where there was documentary evidence over a transaction, the practice was to consider both the oral and documentary evidence but often to lean favourably towards the documentary evidence, especially when the documentary evidence was found to be authentic while the oral evidence is conflicting...‛ (See also HAYFRON V EGYIR [1984-86] 1 GLR 682. From the documentary evidence before me, I find that Defendant’s land is the land shewn edged green superimposed from his own Site Plan and Plaintiff’s land as per his cadastral is the land shewn edged yellow. To the extent that Plaintiff has an indefeasible title over the land in dispute which has not been impeached, I answer the issue raised in the affirmative, that the disputed area, forms part of the land Plaintiff owns which is shown on Exhibit CE2 edged yellow. Plaintiff is thus declared owner of the land shewn edged yellow on the Composite Plan, Exhibit CE2. Accordingly, the Defendant his agents, assigns, workmen, privies and all who claim through or under him are hereby restrained from interfering with Plaintiff’s rights of ownership over the land shewn edged yellow on Exhibit CE2. I award general damages of Three Thousand Ghana Cedis (GHȼ3,000.00) in favour of the Plaintiff against the Defendant. I shall award costs of Three Thousand Ghana Cedis (GHȼ3,000.00) in favour of the Plaintiff against the Defendant. H/H ENID MARFUL-SAU CIRCUIT JUDGE AMASAMAN 9