ERIC ABOAGYE vs. ASHANTI REGIONAL POURTRY & LIVESTOCK & ORS.
  • IN THE SUPERIOR COURT OF JUDICATURE
    IN THE HIGH COURT
    KUMASI - A.D 2016
ERIC ABOAGYE - (Plaintiff)
ASHANTI REGIONAL POURTRY & LIVESTOCK & ORS. - (Defendant)

DATE:  14TH OCTOBER, 2016
CIVIL APPEAL NO:  IRL/60/10
JUDGES:  HER LADYSHIP ANGELINA MENSAH-HOMIAH (MRS.)
LAWYERS:  YAW ACHEAMPONG BOAFO FOR THE PLAINTIFF
NANA OBIRI BOAHEN FOR THE DEFENDANTS EXCEPT THE 4TH DEFENDANT
JUDGMENT

Plaintiff instituted the instant action against the 1st to 4th defendants on 10/05/2010 and on 23/02/2011, the 5th defendant was joined to the suit by an order of this court. The plaintiff filed an amended writ of summons and statement of claim on 28/04/2012 and further amended the same on 26/07/12.These were filed pursuant to orders of the court dated 23/02/11 and 23/07/12 respectively. The reliefs sought by the plaintiff in the (further) amended writ of summons and statement of claim are these:

 

A declaration of title to plot No. 20 Lake Road, Adum- Kumasi

 

An order of ejectment and recovery of possession against the 1st, 2nd and 3rd defendants.

 

Perpetual injunction restraining the Defendants, their employees, agents, servants, workmen, and all those claims through it from interfering with the plaintiff's ownership, possession and control of the plot in dispute.

 

In view of the amendment filed by the plaintiff, the 1st, 2nd , 3rd and 5th defendants also amended their statement of defence. That amended statement of defence was filed on 25/09/12. The 4th defendant also amended its statement of defence and filed the same on 08/08/2012. I must however point out that the said process which sought to amend the 4th defendant's statement of defence filed on 10/06/2010 was not properly headed as such. That notwithstanding, this mere irregularity can be ignored and the process treated as an amended statement of defence of the 4th defendant.

 

THE PLAINTIFF'S CASE

The plaintiff's stated that Plot No. 20 Lake Road, Kumasi was originally a State land acquired under the Kumasi Lands Ordinance, Second Schedule "b" of 1943, but the Government of the Republic of Ghana leased it to the Ahafo Co-operative Union Limited for a period of twenty (20) years from 01/04/1949 to 30/03/1969. The plaintiff alleged that when the said lease expired on 31/03/1969, it was not renewed and so the reversionary interest became vested in the Lessor; and by a lease dated 18/12/09, the plot was demised in his favour by the Government of Ghana acting per the Chairman of the Ashanti Regional Lands Commission for a period of 50 years commencing from 01/11/2009.

 

The plaintiff further asserted that after obtaining his lease, he served notices on the 1st , 2nd and 3rd defendants to quit and when they refused , he again caused his solicitors to write to them to quit but these defendants refused to quit. Instead, they caused their solicitor to reply to the plaintiff's solicitor's letter wherein they alleged that the premises was rented to them by the 4th defendant whom they consider as their grantor. The plaintiff's position is that the 4th defendant has no interest in the disputed plot to enable it rent the same out to the 1st , 2nd and 3rd defendants. The plaintiff described the 5th defendant's claim of title to the property based on an alleged de-confiscation as spurious.

 

THE CASE OF THE 1ST ,2ND ,3RD AND 5TH DEFENDANTS.

In their amended statement of defence filed on 25/09/12, these defendants affirmed that the Ahafo Co-operative Union amalgamated with other co-operative bodies which became known as Ghana Co-operative Marketing Association; the assets and liabilities of the amalgamated bodies were taken over by the Ghana Co-operative Marketing Association. The defendants denied the plaintiff's averments that the disputed property was leased to him for 50 years after the expiration of an alleged twenty - year lease granted to Ahafo Co-operative Union Limited, but admitted receipt of the letters written by the plaintiff. They also alleged that the 4th defendant who permitted the 1st,2nd and 3rd defendants to occupy the building over two decades ago advised them to ignore the notice to quit and therefore their occupation of the disputed property is not illegal.

 

The defendants further averred that the disputed land forms part of plot numbers 15-20, Railway Station which the Co-operative Marketing Association acquired from J. LYONS CO LTD AND FINEST LTD. With the passage of the CMB (Amendment) Decree 1972 (NRCD 63); PNDCL 81 of 1984 and the Cocoa Board law, PNDCL 89, the 4th defendant was mandated to manage all the properties of the 5th defendant. They further contended that until 05/01/2009 when the properties belonging to the GCMA were ceded to the 5th defendant, the 1st , 2nd and 3rd defendants used to attorn tenancy to the 4th defendant . Based on the principle of Nemo Dat Quod Non Habet, these defendants also alleged that the Lands Commission, not being the owner of the property, had no capacity to have entered into any transfer agreement with the plaintiff; and by so doing the Lands Commission perpetrated fraud on the 5th   defendant which rendered any lease prepared in the name of the plaintiff null and void.  It is also the case of the 1st , 2nd  and 3rd  defendants that currently, the 5th defendant is their Land Lord; the plaintiff is aware  of the 5th  defendant's ownership and even approached the General Manager of the 5th   Defendant  to buy the disputed plot from the 5th defendant; the Plaintiff made a part payment of GH¢ 15,000.00 to the 5th defendant but fraudulently struck a deal with officials of the Lands Commission who fraudulently made a lease in the plaintiff's name; but when this fraud came to the notice of the 5th defendant, all monies received from the plaintiff were refunded to him on 04/03/2011.

 

The defendants also pleaded estoppel; their contention being that the plaintiff is estopped by his conduct and actions from laying claim to the disputed property.

 

THE CASE OF THE 4TH DEFENDANT

The 4th defendant 's case is that it took possession of the disputed property in 1977 upon the promulgation of NRCD 63 which forfeited and vested certain properties including Plot No. 20 Lake Road in the 4th Defendant. The 4th defendant further averred that with the passage of the Forfeiture of Assets (Specialized Licensed Buying Agents) law, 1984 (PNDCL 89), the Assets of Ghana Co-operative Marketing Association (GCMA) and other Licensed Buying Agents, including the disputed property were forfeited on account of their indebtedness to COCOBOD. It is the case of the 4th defendant that those forfeited properties were vested in COCOBOD and it has been in possession without any let or hindrance since 1977. The 4th Defendant further asserted that it successfully defended its title to the property in the Kumasi High Court case in suit No. OS 30/2000 between Kumasi Co-operative Union Ltd v. Ghana Cocoa Board; and having acquired vested rights in the property since 1977, the Lands Commission does not have the right to dispose of the properties to the plaintiff and were even estopped by the Limitations Act from dealing with the property.

 

In reply to the respective amended statements of defence filed by the defendants, the plaintiff denied most of the assertions therein; repeated the averments contained in his statement of claim to a large extent and re-iterated that the Lands Commission had capacity to lease the disputed property to the Plaintiff. The plaintiff also indicated that he conducted a search at the Lands Registry and the search report revealed that contrary to the impression that had been created by the 5th defendant that it was the legal owner of the property in dispute, it in fact had no interest in the property . Based on this revelation, the Plaintiff stated that he ended any negotiations with the 5th defendant and dealt with the entity that title to the disputed Land was vested in, i.e. the Lands Commission, to enable it pass a valid title to the plaintiff.

 

The plaintiff denied the particulars of estoppel and also alleged that the 5th  defendant perpetrated fraud on him by dealing with the land in dispute as if it were the owner when the 5th defendant was at all times aware and had notice that it had no title to the said property. In response to the defence put up by the 4th defendant, the plaintiff contended that the disputed property has never been forfeited and vested in the 4th defendant ; that the 4th defendant never acquired any rights and/or interest in the property; and the provisions of the Limitations Act are not applicable to the circumstances of this suit.

 

ISSUES FOR TRIAL

After a couple of amendments, the issues set down for trial by the court at the directions stage are as follows:

 

Whether or not the Lands Commission was vested with legal authority to pass title in plot Number 20, Lake Road, Adum Kumasi in favour of the plaintiff?

 

Whether or not title to the property in dispute is vested in the 4th defendant?

 

Whether or not title to the property in dispute is vested in the 5th defendant?

 

 Whether or not the plaintiff is estopped by reason of conduct from laying claim to the property in dispute?

 

Any other issue raised on the pleadings?- the issues of the plaintiff's capacity, fraud perpetrated by the 5th defendant against the plaintiff and fraud perpetrated by the Lands Commission against the 5th defendant are issues arising from the pleadings and will have to be considered by the court.

 

 ISSUE OF PLAINTIFF'S CAPACITY TO SUE.

It is trite law that capacity goes to the root of every action and a person who has an iron cast case would not be heard on the merits of her case if she is unable to satisfy the court that she has capacity to maintain the suit. It follows that where the issue of lack of capacity is raised, the court is precluded from determining the case on its merits without first determining the issue of capacity.

 

 In Youhana v Abboud (1973) 1 GLR 258, when the plaintiff's capacity was challenged, albeit on different grounds, the court held, inter alia, that:

Where the authority of a person to sue in a representative capacity had been challenged, the onus was upon him to prove that he had been duly authorised. He could not succeed on the merits without first satisfying the court on this important preliminary point.”

 

 Even in circumstances where the issue is not raised by a party but it is apparent on the record, the trial judge must not ignore the same. The Court so held in the case of Yorkwa v Duah (1992-93)1 GBR 278 that:

“Where a person’s capacity to institute proceedings was in issue, it was no answer to give that person a hearing on the merits even if he had a cast iron case. Even though the point of respondent’s capacity was not raised at the trial it involved a serious point of law that the trial judge ought to have considered.” Sarkodie I v Boating II (1982-83) GLR 881 cited."

 

Still on the question of capacity, Apaloo JSC  in Akrong v Bulley (1965) GLR 469 SC  stated:

" I need hardly say that i reached this conclusion with no relish, especially as the Plaintiff made out an unimpeachable case of negligence against the defendants on the merits. But the   question of capacity, like a plea of limitation, is not concerned    with the merits."

 

The issue of capacity can be raised at any time and it is therefore not surprising that Counsel for the defendants (except the 4th) did so in his final address filed on 15/08/16. Indeed, counsel cited and relied on a more recent unreported case titled FKA Company Ltd & Anor v Nii Ayia Kaia Akramah II, substituted by Nii Tetteh Okorh Aryee Civil Suit No. J4/01/2016 dated 13/04/2016 where Akamba JSC stated:

if a party brings an action in a capacity that he does not have, the writ is a nullity and so are the proceedings founded on it."

 

Counsel made reference to the endorsement on the plaintiff's amended writ of summons by which he is asking for "a declaration of title to plot No. 20 Lake Road Adum, Kumasi". He also referred to the plaintiff's pleadings and exhibits tendered in court, especially exhibit "A" (the lease) in which the plaintiff is described as a lessee. Counsel then argued that since a lease is basically an interest in land for a period, a lessee cannot claim to be an owner of the subject matter of a lease. Hence, the plaintiff herein who describes himself as a lessee cannot pray to the court for "declaration of title". Counsel then submitted that the plaintiff is bereft of capacity to institute the present action.

 

Da Rocha B.J. and Lodoh C.H.K. (1995) GHANA LAND LAW AND CONVEYANCING, Anansesem Publications page 16 define a lease as follows:

"A lease is a contract between the lessor or landlord and the lessee or tenant whereby the lessee is granted exclusive possession of land for a fixed period upon terms and conditions agreed upon between the parties."

 

In Black's Law Dictionary, 9th edition, "title" is defined as " Legal evidence of a person's ownership rights in property; an instrument (such as a deed) that constitutes such evidence."

 

It is further explained therein as follows:

"Though employed in various ways, [title] is generally used to describe either the manner in which a right to real property is acquired, or the right itself..."

 

Ordinarily, where a lessee talks about "title" to a leasehold property, it is referable to the lessee's interest in the subject matter of the lease and nothing more- that interest can never translate into any other interest such as the customary freehold or the allodial title. Therefore, the expression, 'declaration of title', as endorsed on the plaintiff's writ of summons is an invitation to the court to confirm the plaintiff's interest in the disputed landed property i.e. by way of a lease, and/or affirm the right so acquired. For instance, just as a lease is an interest in land, so is a customary freehold. The only difference is that a lease is for a specific or limited period- but that does not take away the right of the lessee to protect his or her interest in the subject matter of the lease by asking a court of competent jurisdiction to make a declaration to that effect. The plaintiff could have sought a declaration that he is the lessee of the disputed property and if he had done so, he would be required to produce evidence of that interest, just as he would do in the circumstances of this case.

 

From the foregoing, the distinction which counsel for the defendants (except the 4th) seeks to draw between the interest of a 'lessee' and that of some other title holders will not suffice. It is my considered opinion that the plaintiff herein did nothing wrong in asking the court to declare title (which I have demonstrated to mean his alleged leasehold interest) in his favour. On that basis, the plaintiff's capacity to institute the instant action cannot be faulted. It is up to him to prove to the satisfaction of this court that he is entitled to the declaratory relief sought. Therefore, his suit cannot be dismissed for want of capacity as submitted by counsel for the defendants (except the 4th ).

 

I notice that counsel for the plaintiff dealt with the issues for consideration in a chronological manner in his closing address but i will not follow that order. Counsel for the defendants (except the 4th) touched on various factual and legal issues which he wants the court to consider. For the 4th defendant, counsel had not filed his final written address as at the time of writing this judgment, an indication that he had waived his right to address the court and so the only reasonable option left was to proceed without having the benefit of his inputs. In this judgment however, since the defendants are contesting the lease executed in favour of the plaintiff by the Lands Commission, it will be expedient to first determine the interests of the 4th and 5th defendants to whom the 1st to 3rd defendants allegedly attorned tenancy at different times. That way, resolution of the issue on the grant of the lease to the plaintiff by the Lands Commission will be much easier. Thereafter, any other issue arising will be considered.

 

THE BURDEN OF PROOF

In all these, the principle of proof in civil suits as provided for in sections 10, 11(4), 12 and 14 of the Evidence Act, 1975 NRCD 323 will apply.

 

And as expounded by Kpegah JA (as he then was) in Zambrama v Segbedzie (1991) 2 GLR 221, CA ,the party who makes any positive assertion and which is denied by his opponent is to bear the burden of proof. This principle has been applied in subsequent cases such as Adwubeng v Domfeh (1996/97) SCGLR 660; Takoradi Floor Mills v Samir Faris (2005/06) SCGLR 882; Yaa Kwesi v Arhin Davis(2007/08) SCGLR 580; Sarkodie v FKA Co. Ltd. (2009) SCGLR 65 holding 1 and Abbey v Antwi (2010) SCGLR 17 at 19 (holding 2).

 

Depending on the nature of the pleadings, both the evidential burden and the burden of persuasion may fall on the same party, but the evidential burden may shift onto the party on whom the burden of producing evidence rests in respect of a particular issue. The application of these evidential rules and principles were adequately discussed by Dr Date Bah (JSC) in the case of Sumaila Bielbiel v Adamu Dramani & Anor (2012) SCGLR 370.

 

WHETHER OR NOT TITLE TO THE PROPERTY IN DISPUTE IS VESTED IN THE 4TH DEFENDANT?

Obviously, the evidential burden on this issue falls on the 4th defendant. On 17/06/2014, the Deputy Estate Manager of the 4th defendant by name Kwasi Asiedu Mensah testified on its behalf. He was emphatic that Ghana Cocoa Board owns the disputed property and that the 1st to 3rd defendants are its tenants. His account of the 4th defendant's ownership dates back to the year 1977 when he said a law was passed confiscating the assets of Ghana Co-operative Marketing Association (GCMA) and handed over to the Cocoa Board. As proof of acts of ownership exercised by the 4th defendant, the witness tendered in evidence various tenancy agreements executed between the 4th defendant as "landlord" and the 1st , 2nd and 3rd defendants as tenants (see exhibits cocobod 1 to 3). Further, the witness put in evidence a document which he described as a deed of transfer of the disputed land to the GCMA, the 5th  defendant herein, as exhibit cocobod 4. In another breath, he maintained that as far as he is concerned, the property belongs to Cocoa Board, the 4th defendant herein by virtue of the law which was passed in the year 1977. Yet, when the witness was being cross-examined by counsel for the plaintiff, he denied any knowledge of NRCD 63, PNDCL 81 as well as PNDCL 89 which bother on the transfer of assets. When asked how Cocoa Board came to take over the running of the disputed property, the witness explained that GCMA took a loan from Cocoa Board to purchase cocoa and other related accessories and when GCMA failed to pay back the loan, Cocoa Board took the matter to the Government which passed the law giving those assets to Cocoa Board. He conceded that he is not familiar with the law he referred to but denied that after the de-confiscation on 05/01/2009, title to the property reverted to the 5th defendant.

 

In his final address, counsel for the plaintiff emphasized that by the clear admission of the 4th defendant's witness that he is aware of the Deed of Transfer which transferred the property to the 5th defendant, the 4th defendant cannot claim any interest in the disputed property.

 

Continuing, counsel delved into the legal effect of the deed of Transfer, exhibit cocobod 4, and after quoting the document in extenso, he invited the court to consider the fact that the Forfeiture of Assets (Specialized Licensed Buying Agents) Law, 1984 PNCDL 89 was repealed by the Statute Law Revision Act, 1996, Act 516. I notice the obvious typographical error in counsel's address which described the law as PNDCL 81 instead of PNDCL 89. PNDCL 81 of 1984 is the Cocoa Board Law as indicated in exhibit cocobod 4. Since counsel got the title of the law right, that error is of no consequence and for the purpose of evaluating his arguments in this judgment, PNDCL 89 will be the reference point. Counsel analyzed the legal effect of repealed legislation under section 34 (1) and (2) of the Interpretation Act 2009, Act 792. He then argued that by law, on the repeal of PNDCL 89, the 4th defendant ceased to have any interest in the property from the date of the repeal as the authority under which it derived its title has been taken away expressly by statute. Kowos Motors v Check point Ghana Limited (2009) SCGLR 230 was referred to.

 

Counsel for the defendants(except the 4th) in his address also pointed out the admission by the 4th defendant during cross-examination on 16/07/2014 that GCMA eventually came to own the property as its bona fide property. In effect, counsel submitted that on the evidence, the 4th defendant is not the owner of the disputed property.

 

I will have to resort to different portions of exhibit cocobod 4 in the course of this judgment. As such, I will reproduce it below for emphasis. it states:

"DEED OF TRANSFER

 

WHEREAS by section 1 of the Forfeiture of Assets (Specified Licensed Buying Agents) Law, 1984 (P.N.D.C.L. 89, any assets of the Ghana Co-operative Marketing Association which were forfeited by the Republic by virtue of section 3 of the Cocoa Industry and Cocoa Marketing Board (Amendment) Decree, 1972 (N.R.C.D. 63) and vested in the Ghana Cocoa Marketing Board now known as the Cocoa Board under the Cocoa Board law, 1984 ( P.N.D.C.L. 81) referred to in this law as the "Board" shall remain forfeited to the Republic and vested in the Board notwithstanding the repeal of the said Decree, or any Law, order or directives to the contrary.

 

AND WHEREAS by subsection 2 of section 1 of the Forfeiture of Assets (Specified Licensed Buying Agents) law, 1984 (P.N.D.C.L. 89), any decision of the Court divesting the Republic or the Board and accordingly any order for the recovery of such assets or any award, including damages or costs made by the court in consequences of its decision shall not be enforceable against the Republic, the Board or any other person.

 

AND WHEREAS by the Statute Law Revision Act, 1996 ( Act 516), the Forfeiture of Assets (Specified Licensed Buying Agents) law, 1984 (P.N.D.C.L. 89) which confiscated the assets of the Ghana Co-operative Marketing Association Limited is repealed.

 

NOW THEREFORE pursuant to the above mentioned legislation, the President on the recommendations of the Confiscated Assets Committee, the Restoration Assets Committee and the Attorney- General, and in the spirit of national reconciliation hereby deconfiscates and transfers any interest the Government of Ghana has acquired in Ghana Co-operative Marketing Association Limited.

 

For the avoidance of doubt, Government of Ghana shall where the context admits or requires include any sub division of Government or statutory body wholly owned by the Government.

 

The properties are   :...                                   

 

ASHANTI REGION                           

 

Location                                              Brief Description

                                             

Kumasi, Baldulzi House                   A two storey Sandcrete Black Building( Commercial and Residential).

 

(Fanti New Town)...."

 

It is trite that in interpreting deeds and/or statutes, the document or statute as the case may be, must be read as a whole and that is exactly what i will proceed to do in this judgment. Now, to the arguments by counsel for the plaintiff on the legal effect of repealed legislation. Dennis Adjei (2014) MODERN APPROACH TO THE LAW OF INTERPRETATION IN GHANA, Adwinsa Publications, page 181 discusses this topic under section 34 of the Interpretation Act 2009, Act 792 which is self explanatory and does not need any commentary. He stated that:

"The legal effect of 34(1) (a) is that any statute or common law position or any Act repealed by statute would not be revived after the said statute has been repealed. Anything repealed or revoked by a statute would not be revived after the repeal of the amending statute.

The legal effect of section 34(1) (b) is that anything done or suffered under a law would not be affected after the repeal of the law. All the acts validly done under the repealed Act would not be affected as the right would be deemed to have been acquired or accrued under it."

 

It is my candid opinion that it is for the above considerations that exhibit cocobod 4 did not stop at the repeal of P.N.D.C.L. 89 but proceeded to "de-confiscate and transfer any interest the Government of Ghana had acquired in Ghana Co-operative Marketing Association Limited". So that if by the 4th defendant's own showing, the disputed property which hitherto belonged to GCMA but was forfeited to it by virtue of NRCD 63 of 1972 (repealed) and later P.N.D.C.L. 89 of 1984 (repealed), then it follows that any interest, which the 4th defendant had in any of such properties ended with the passage of Act 516 of 1996. What is more, from the date the 'Deed of Transfer' put in evidence by the 4th defendant was executed in January 2009, the 4th defendant had no legal basis to deal with any asset which was forfeited to it by either NRCD 63 or P.N.D.C.L. 89. The position was different before the repeal of P.N.D.C.L. 89 and if the 4th defendant obtained any judgment in its favour prior to the repeal, that decision cannot be relied on as proof of its interest subsequent to the repeal. Now, where lies the interest of the 4th defendant in the disputed property at this time? By law, and on the evidence before me, no such interest exists and I find that none of the properties forfeited under NRCD 63 and P.N.D.C.L. 89 (now repealed) are vested in the Ghana Cocoa Board, the 4th defendant herein. In effect, the 4th defendant can no longer deal with the disputed property.

 

WHETHER OR NOT TITLE TO THE PROPERTY IN DISPUTE IS VESTED IN THE 5TH DEFENDANT?

Here, the evidential burden is on the 5th defendant, and to some extent the 1st to 3rd defendants who have recognized the 5th defendant's title to this disputed property and have allegedly attorned tenancy to it. Whilst on oath, the representative of the 5th defendant said the government of the PNDC combined all the cocoa purchasing companies in the country and brought them under the Cocoa Board. The Cocoa Board took charge of all the properties until President Kufour and his government released them to GCMA. He reiterated that Cocoa Board released the properties to GCMA but it was done in batches. To support this oral evidence, he tendered a press release, exhibit

 

The witness also relied on exhibit cocobod 4 to say that the subject matter of this suit is the property of the GCMA, the 5th defendant herein. That evidence notwithstanding, the witness admitted under cross-examination that the only property in Kumasi listed in exhibit cocobod 4 is 'Balduzzi house' which is entirely different from the subject matter of this suit. He then explained that cocobod released all the properties of GCMA to them but in batches and there was no deed of transfer in respect of those subsequent transfers.

 

Counsel for the plaintiff whose stance is that the property never reverted to the 5th defendant sough to demonstrate this during the cross-examination of the 5th defendant's representative on 23/06/2016 as seen in the discourse below:

Q. Do you know that if you acquire a leasehold interest in a property and when the term expires and there is no renewal the property reverts to the owner?

A. Yes, I know that.

Q. Do you know that the plot in dispute was originally state  land acquired under the Kumasi lands Ordinance 1943?

A. I do not know that. All i know is that the GCMA were occupying those properties.

Q. And the Ahafo Co-operative Union limited were leased the property in dispute by the government of the Republic of Ghana for a term of twenty years from 01/04/1949 to 31/03/1969?

A. I am not aware of that. The GCMA occupied the place even after 1969.

Q.  Do you have exhibit cocobod 4 with you.

A. Yes.

Q. Go to the first page, you would see from the first page that the GCMA properties were confiscated in 1972?

A. That is correct.

Q. I am putting it to you that is the reason why the properties which were the subject matter of the de-confiscation as listed in exhibit cocobod 4 does not include the disputed property?

A. That is not correct "

 

The cross-examination continued:

Q. What is the link between the press release exhibit 9 and  cocobod 4?

A. Exhibit cocobod 4 confirms exhibit 9. Western and Volta regions which were not in exhibit 9 have now been mentioned in exhibit cocobod 4.

 

When counsel for the 4th defendant took his turn to cross-examine the representative of the 5th defendant, he also sought to demonstrate that the list of properties in exhibit cocobod 4 is exhaustive of all properties that were to be transferred from Cocobod to GCMA but the witness disagreed with all those suggestions. The witness later conceded that the subject property of this suit was not mentioned in exhibit cocobod 4 even though cocobod released it to the GCMA, and that he had not heard of any other law that released properties forfeited under PNDCL 89 and NRCD 63 from Government to GCMA.

 

I have already indicated that counsel for the 4th defendant did not address the court. Counsel for the other defendants relied on admissions made by the 4th defendant's witness and together with the evidence-in-chief of the 1st, 2nd and 3rd defendants, he submitted that the 5th defendant is the undisputed owner of the subject matter in dispute. In particular, counsel drew the court's attention to the legal import of paragraph 6 of exhibit 'J' which emanated from the Lands Commission, Kumasi and tendered by the plaintiff's sole witness, PW1. The said paragraph reads:

"It is important to note further that the development thereon was developed by the Ghana Co-operative Association Limited which assets were allegedly confiscated by the State years ago. Same was de-confiscated by cabinet vide Attorney General's letter dated 12th April, 2006 and signed by V.C.R.A.C. CRABBE, Commissioner for the Attorney General."

 

Counsel for the defendants(except the 4th) submitted that the Ghana Co-operative Marketing Association mentioned in the above quotation is the 5th defendant and that evidence amounts to an admission of the 5th defendant's case by the plaintiff's own witness, PW1.

 

For the Plaintiff, counsel submitted that by the 5th defendant's own showing, the disputed property is not part of the properties which are the subject matter of the "Deed of Transfer", exhibit cocobod 4, and that the press release, exhibit 9 does not also support the case of the 5th defendant. Expatiating this position, counsel stressed that:

"exhibit 9 pre-dates exhibit cocobod 4. At the time of the issue of the press release the properties in Ashanti Region had already been dealt with and what was left was the remaining regions. However, exhibit cocobod 4 contains a list of all properties released to the 5th defendant in all Regions in the country. This clearly shows that the disputed property was never part of the properties released to the 5th defendant and this supports the claim of the plaintiff that the disputed property was not part of the properties released to the 5th defendant." Counsel then submitted that the 5th defendant has no interest in the disputed property.

 

From the evidence before me, it is not in doubt that sometime in the year 1972 and by virtue of NRCD 63 ( and later P.N.D.C.L. 89 of 1984), the disputed property was forfeited to the Ghana Cocoa Board. Reading exhibit cocobod 4 as a whole and adopting a purposive approach to its interpretation, the reasonable inference which is to be made is that the disputed property forfeited under NRCD 63 and P.N.D.C.L. 89 had reverted to its previous owner. That presumption is not out of place at all. But the difficulty which exhibit 'cocobod 4' presents is that the disputed property was not specifically mentioned. Accepting the arguments by counsel for the plaintiff and counsel for the 4th defendant would mean that the said property has not been transferred, exhibit cocobod 4, notwithstanding. In reality, is that the case? An answer can be found from a thorough look at the evidence.

 

I have subjected the evidence on record to a critical analyzes, particularly, exhibits cocobod 4 and exhibit 9, and clearly, the disputed property was never specifically mentioned in the Deed of Transfer executed by the then President of the Republic of Ghana in January, 2009. So the question which arises here is, why was it not included in the Deed of Transfer? On this point, the plaintiff's position, based on exhibit J, that it was due to the fact that the 20- year lease granted GCMA's predecessor, the Ahafo Co-operative Union had long expired and was never renewed weighs on my mind. The legal implication is obvious and the representative of the 5th defendant also admitted it.

 

I notice that counsel for the defendants (except the 4th) relied on a portion of exhibit 'J' which seemed favourable to the case of his clients in his legal analysis. There are other very important comments made by the Lands Commission which counsel turned a blind eye to, namely:

"... That site under dispute is a State Land acquired under the Kumasi Lands Ordinance 2nd schedule "b" of 1943.

The same site is a subject matter of a lease dated 13th  February, 1953 from the Government of the Republic of

Ghana to Ahafo Co-operative Union Ltd for a term of Twenty years from 1st  April 1949 to 31st  March, 1969.

The said lease has since expired.

After the expiration of the term the said lease and its improvements thereon reverted back to the state...".

 

The 5th defendant has even not been consistent with the relationship between it and the Ahafo Co-operative Union through whom it claims its interest. In the pleadings, the 5th defendant asserted that several co-operative unions amalgamated and formed the Ghana Co-operative Marketing Association which took over their assets and liabilities. This is a clear indication that there was a merger. But whilst in the witness box, the 5th defendant's representative was emphatic that the Ahafo Co-operative Union is a branch of the Ghana Co-operative Marketing Association. I do not think Ahafo Co-operative Union existed on its own after the merger and it appears to me that the 5th defendant is even confused about its own legal status. Moreover, the 5th defendant could not introduce any cogent evidence to discredit the testimony of PW1 that Ahafo Co-operative Union was a lessor of the disputed land for only twenty (20) years. Neither was he able to show that Ahafo Co-operative Union acquired the land in any other manner apart from a lease.

 

Again, neither the 5th defendant nor its counsel has been able to show that the plot in dispute does not form part of the lands acquired under the Kumasi Lands Ordinance of 1943 as contended by the plaintiff and his lawyer.

 

It is right to say that since the 5th defendant never counterclaimed for a declaration of title in the amended statement of defence filed on 25/09/2012, it is not under any obligation to lead evidence in support of the root of its interest. But, the 5th defendant must remember that the court is enjoined to evaluate all the evidence on record, weigh same on the balance of probabilities before making its findings and conclusions. So that where only one party provides evidence on a particular fact in issue, the court will be limited to just that piece or pieces of evidence to consider in respect of that issue. As Brobbey JSC observed in Re Ashalley Botwe Lands; Adjetey Agbosu & Ors v Kotey & Ors (2003- 2004) SCGLR 420:

... A litigant who is a defendant in a civil case does not need to prove anything; the plaintiff who took the defendant to court has to prove what he claims he is entitled to from the defendant. At the same time, if the court has to make a determination of a fact or of an issue, and that determination depends on evaluation of facts and evidence, the defendant must realize that the determination cannot be made on nothing. If the defendant desires the determination to be made in his favour, then he has the duty to help his own cause or case by adducing before the court such facts or evidence that will induce the determination to be made in his favour. The logical sequel to this is that if he leads no such facts or evidence, the court will be left with no choice but to evaluate the entire case on the basis of the evidence before the court, which may turn out to be only the evidence of the plaintiff. If the court chooses to believe the only evidence on record, the plaintiff may win and the defendant may lose. Such loss may be brought about by default on the part of the defendant ..."

 

In the case at hand, the 5th defendant has not helped its own cause by failing to adduce evidence either to prove how the Ghana Co-operative Marketing Union or the Ahafo Co-operative Union acquired the disputed land; the nature of the interest or title so acquired; and whether the land falls outside the lands acquired under the Kumasi Lands Ordinance 2nd schedule 'b' of 1943. In the absence of any credible evidence to the contrary, I will accept the account given by PW1 as contained in the portion of exhibit J referred to, supra, and find that the disputed land falls on State Land; that it was leased to the Ahafo Co-operative Union for a term of twenty (20) years from 1st April 1949 to 31st March 1969 and all that property reverted to the State after the expiration of the said lease in 1969.

 

From the totality of the evidence before me, the 5th defendant continued to occupy the disputed property after the expiration of the lease in 1969 until the same was forfeited to the 4th defendant in 1972. During that period, the 5th defendant had no legal title to, or interest in the subject property. That being the case, the disputed property and the developments thereon could not have been validly transferred to the 5th defendant, GCMA, by exhibit cocobod 4. And there is no evidence of another Deed of Transfer in respect of the said property. By operation of law, after the de-confiscation, it is the lessor of the Ahafo Co-operative Union, i.e. the Government of Ghana, who assumed ownership and not the 5th defendant whose interest had long expired.

 

One would say that it is unconscionable for the reversionary owner to take the structures constructed on the land after the expiration of the lease. Here again, until a law is passed to protect the interest of lessees who spend huge sums of money to develop land leased to them, very little can be done about the situation. For now, the law is that after the expiration of the lease, the reversionary interest goes back to the lessor who cannot be compelled to renew the lease in favour of the previous lessee or its successor in title. Therefore, I conclude that title to the disputed subject matter is not vested in the 5th defendant.

 

WHETHER OR NOT THE LANDS COMMISSION WAS VESTED WITH LEGAL AUTHORITY TO PASS TITLE IN PLOT NUMBER 20, LAKE ROAD, ADUM KUMASI IN FAVOUR OF THE PLAINTIFF?

The plaintiff who is relying on the lease executed in his favour by the Lands Commission must prove the Legal authority of the said State Entity to pass title to the disputed plot in his favour. PW1, an officer from the Lands Commission subpoenaed by the plaintiff tendered exhibit J which has been quoted in extenso, supra to justify why the Lands Commission granted the lease, exhibit A, to the plaintiff, primarily, there was no subsisting lease as the previous lease had long expired.

 

In his final address, counsel for the plaintiff submitted that one of the legal means for termination of a lease is by effluxion of time and in this case upon the expiry of the lease in 1969, the property reverted to the Government of the Republic of Ghana. Counsel argued that a lessee is not entitled as of right to have a lease renewed in his or her favour. As such, the Lands Commission was not duty bound to renew the lease in favour of the Ahafo Co-operative Union Limited or the 5th defendant. To support these arguments, counsel cited and relied on the case of Re Mireku & Tetteh (decd) Mireku & Others v Tetteh & Others (2011) 1 SCGLR 520 where the Supreme Court held that an option to renew was not a right available to a lessee or implied by statute and the common law. Counsel reiterated that by virtue of Article 258(1) of the 1992 Constitution of the Republic of Ghana which is repeated verbatim in section 2(1) of the Lands Commission Act, 1994 (Act 483),the Lands Commission has the mandate to manage all public and vested lands on behalf of the Government.

 

On the part of the defendants (except the 4th), counsel once again relied on the portion of exhibit J where the Lands Commission had indicated that the disputed land had been developed by the Ghana Co-operative Marketing Association Limited, i.e. the 5th defendant. On that basis, he argued that at all times material, the plaintiff and the Lands Commission knew as a fact that the 5th defendant is the owner of the property in dispute and that the doctrine of bona fide purchaser without knowledge of any impropriety, encumbrance, etc would not enure to the plaintiff. In his view, the principle of Nemo Dat Quod Non Habet is applicable to the present suit. Concluding, he submitted that the plaintiff never acquired any title from the purported lease and in fact did not make any claim against the 5th defendant as per the amended endorsement on his writ of summons. He described the entire transaction between the plaintiff and the Lands Commission as a nullity and prayed the court not to aid that illegal act.

 

Whilst determining the issue of whether or not the disputed property is vested in the 5th defendant, I carefully analyzed the evidence on record, applied the law and came to a conclusion that the property is not vested in the 5th defendant. I need not belabour that point at this stage of the judgment.

 

As rightly submitted by counsel for the plaintiff, the Lands Commission has the mandate or legal authority to manage all public lands and lands vested in the Government ( see article 258(1) of the 1992 constitution and section 2(1) of the Lands Commission Act, Act 483). It has been clearly demonstrated in this court that the disputed Land was vested in the State by virtue of the Kumasi lands Ordinance 2nd schedule 'b' of 1943. It is also settled that the lease executed over this land expired in 1969, the same was never renewed so that the reversionary interest automatically went back to the Government on whose behalf the Lands Commission manages the said land. Thereafter, the Lands Commission in exercise of its legal mandate under the Constitution of the Republic of Ghana and under the Lands Commission Act proceeded to execute a lease in favour of the plaintiff herein. It is to be noticed that the offer was made to the plaintiff after the 5th defendant had expressed its intention to relinquish its 'title', which was by then not existent any way, to the plaintiff. If the 5th defendant had acted diligently, it would have come to its notice that the lease covering that property had long expired.

 

From the foregoing, there is not the slightest doubt in my mind that the Lands Commission was vested with legal authority to pass title in the disputed land to the plaintiff and i so find. Hence, the principle of Nemo Dat Quod Non Habet will not apply to the transaction between the Lands Commission and the Plaintiff. However, I have some reservations about the manner in which the Lands Commission proceeded to execute the lease in favour of the plaintiff herein and will comment on that later.

 

WHETHER OR NOT THE PLAINTIFF IS ESTOPPED BY REASON OF CONDUCT FROM LAYING CLAIM TO THE PROPERTY IN DISPUTE?

 

It is provided under section 26 of the Evidence Act 1975 N.R.C.D. 323 as follows:

 

26.  Estoppel by own statement or conduct

 

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.

 

The 5th defendant pleaded estoppel in paragraph 28 of their amended statement of defence and then gave the particulars as follows:

a. At the material time of dealing with the Lands Commission; plaintiff knew as a fact that, the 5th defendant was the owner of the property in dispute.

b. Correspondence between plaintiff and 5th defendant attests/confirms the plaintiff's knowledge of the fact that, the 5th defendant is the owner of the property in dispute.

 

Having given these particulars, the 5th defendant must establish the facts which will enable the court to decide whether the plaintiff is estopped by its conduct. Its Administrative Manager who testified on its behalf  told the court that Ahafo Co-operative Union is a branch of the 5th defendant; he also said that the plaintiff approached officials of the 5th defendant to buy the disputed property and they also agreed to sell the same to him. The plaintiff then made a part payment of GH¢ 15,000.00 but later demanded a refund on the pretext that he was no longer interested in the property whereupon the money was refunded to him together with interest of GH¢ 5,000.00. These were supported by exhibits 6 and 7 which emanated from the plaintiff and the 5th defendant respectively.

 

The plaintiff conceded that he entered into negotiations with the 5th defendant in respect of the sale of the disputed property, but this was based on information he had received from friends to the effect that the 5th  defendant is the owner of the property, and he so acted because the 5th defendant had also represented to him that the property belongs to it. The plaintiff tendered exhibit D by which the 5th defendant wrote to the Lands Commission relinquishing its title in the disputed property to him. He further explained that not until the time he conducted a search at the Lands Commission, he did not know that the 5th defendant had no title to the disputed property.

 

Contrary to the submissions made by counsel for the defendants(except the 4th ) that the plaintiff is estopped by his conduct from denying the 5th defendant's title, counsel for the plaintiff argued that on the facts of this case, no case of estoppel by conduct can be made against the plaintiff. Counsel sought to seek refuge in the case of Social Security Bank v Agyarkwa (1991) 2 GLR 192, CA where it was held as follows:

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

I find it necessary to reproduce the full contents of exhibit D which was written by the 5th defendant and directed at the Regional Lands Commissioner, Kumasi, Ashanti Region, dated 10/06/2009. It reads:

 

RELEASE OF TITLE ON PLOT 20 LAKE ROAD, KUMASI.

We are by this letter respectfully informing you that the Ghana Co-operative Marketing Association Limited, ( GCMA Ltd.) a cocoa farmers organization, which holds title to plot No. 20, Lake Road, Kumasi, Ashanti, has at its Board of Directors meeting in May, 2009 resolved and relinquished the title on the aforementioned plot to Mr. Eric Aboagye of P.O. Box An 9261 Ahinsan-Kumasi effective June 10, 2009.

 

We would be extremely grateful if you could effect the necessary transfer of all documents in respect of the said plot into the name of Mr. Eric Aboagye.

We anticipate your co-operation in this regard.

 

sgd.

 

Daniel K. Adusei (Board Chairman/Director).

 

It can be reasonably inferred from exhibit 'D', supra, that the 5th defendant at the time of dealing with the plaintiff represented to him that it had title to the disputed property, even though no documentary evidence of title had been produced. By writing to the Lands Commissioner to effect a transfer in favour of the plaintiff, the 5th defendant acknowledged the mandate of the Lands Commission to manage the disputed land and the fact that the said entity had custody of documents affecting the disputed land. What title did the 5th defendant have in the disputed property at the time it dealt with the plaintiff? The Lands Commission came out with their findings based on their records as contained in exhibit 'J'. I have said time and again that upon the expiration of the lease given to the Ahafo Co-operative Union in 1969, and in the absence of any renewal in favour of the lessee, the land and all the developments thereon reverted to the Government. If the 5th defendant had no legal title to pass on to the plaintiff, on what basis can the plaintiff's conduct in dealing with the 5th defendant operate as estoppel against him? On the facts of this case, I find that the plaintiff dealt with the 5th defendant as a result of the misrepresentations made by the 5th defendant as regards its legal title/interest in the disputed property. Therefore, the principle of estoppel by conduct cannot be invoked by the 5th defendant who had made misrepresentations as to its legal title to the disputed property. Put differently, section 26 of the Evidence Act, NRCD 323 does not apply to the circumstances of this case and I so find.

 

THE ISSUE OF FRAUD

Let me comment on the issue of fraud raised by the defendants against the Lands Commission briefly. The law is that fraud vitiates everything and must be specifically pleaded as per Order 11 rule 12 of CI 47. So important is the issue of fraud that even when it is not pleaded in accordance with the above procedural rule, the court must take notice of it and determine it. Thus, in Appeah & Anor v Asamoah (2003/2004) SCGLR 226 at 229, holding 7, it was held:

Fraud would vitiate everything. And ordinarily, fraud should be pleaded. It had not been pleaded in the instant case. Notwithstanding the rules on pleadings, the law was that where there was clear evidence of fraud on the face of the record, the court cannot ignore it."

 

In the instant case, the defendants did give particulars as follows- "Lands Commission failed to be honest, sincere, etc with the title, ownership of the property in dispute". So, procedurally the defendants have done what they are required to do by way of pleadings. But, when it comes to proof, have they discharged the evidential burden placed on them? That will be resolved shortly.

 

Which acts amount to fraud in law? In Black's Law dictionary, 9th ed. fraud is defined as "A knowing misrepresentation of the truth or concealment of a material fact to induce another to act to his or her detriment." Also, in the case of SA Turqui & Bros v Dahabieh (1987-88) 2 GLR 486, CA, holding 4(b), the court defined acts which will amount to fraud as follows:

"A charge of fraud in law could be taken to be properly made against a party who knowingly or recklessly whether by conduct or words, used unfair, wrongful or unlawful means to obtain a material advantage to the detriment of another party"

 

It is to be noted that the Lands Commission is not a party to this suit but only a witness. Whatever findings to be made will be based on the facts and evidence before the court. In exhibit 'J' tendered by PW1, the Lands Commission stated inter alia that:

"It suffice to also say that the Commission agreed to allocate same to Mr. Eric Aboagye having considered the letter submitted by Ghana Co-op Marketing Association Limited dated June 10th 2009 purporting to transfer their interest in the plot to the said Eric Aboagye even though the lease had expired. In fact the issue of the benefit of first option should rather have gone to the Ghana Co-operative Marketing Limited instead since they were the original owners before the confiscation...".

 

Was there an option of renewal as far as the 20-year lease granted to Ahafo Co-operative Union is concerned? The portion of exhibit 'J' quoted above presupposes that there was such a clause. It would have been useful if that lease, or a certified copy thereof, had been tendered in this trial for the court's perusal. Whether or not there was an option for renewal, the 5th defendant had expressed its intention not have any interest in the property through a correspondence to the Lands Commission, exhibit D.

 

By the Lands Commission's own showing, after receipt of the 5th defendant's exhibit D in June, 2009, it made an offer of the disputed land to the plaintiff on 30/10/2009 as per exhibit E; and the plaintiff's acceptance of the terms in exhibit E culminated in exhibit A, the 50-year lease. It would have been most desirable if the Lands Commission had communicated the true status of the land to the 5th defendant before making the offer to the plaintiff. Interestingly, the response of the Lands

 

Commission to the 5th defendant's letter of 10/06/2009 was this (exhibit F):

 

RE: RELEASE OF TITLE ON PLOT NO.20 LAKE ROAD

 

Reference is made to your letter No. GCMA/HQ/AST.1/05 dated June 10, 2009.

 

I have been directed to request from you documentary evidence indicating that you are the successors-in-title to Ahafo Co-operative Union Ltd who formerly owned the above mentioned property.

 

 

 

sgd.

 

Benjamin Nti (for Regional Lands Officer).

 

The 5th defendant's response to exhibit F was not brought to the court's attention. I strongly condemn

 

the inaction of the Lands Commission in not drawing the 5th defendant's attention to the fact that the lease granted to Ahafo Co-operative Union had expired as far back as 1969 and for that reason the land had reverted to the Government. The Lands Commission ought to have also notified the 5th defendant to give vacant possession to its lessor. If these had been done before the land was offered to the plaintiff, the 5th defendant would not have had any cause to complain because the Lands Commission would be seen as acting within its authority to manage State and vested lands. However, their failure to do so does not constitute conduct which the 5th defendant has relied on to its detriment so as to amount to fraud. This is because of the principle that the lessor takes the reversionary interest after the effluxion of the lease and the lessee is under an obligation to give vacant possession of the land to the lessor. Moreover, in this case, the 5th defendant who constructed the structures on the land leased to its branch, Ahafo Co-operative Union, had indicated to the Lands Commission that it had relinquished its "title" to the plaintiff- a clear indication that it had no intention of remaining on the disputed land. I do not see any fraud established against the Lands Commission and I so find.

 

Similarly, upon termination of the negotiations and/or agreement for the sale of the disputed land between the plaintiff and the 5th defendant, the 5th defendant refunded all monies it had received from the plaintiff together with interest- their transactions ended there! So, where lies the fraud on the part of the 5th defendant against the plaintiff? I see none!

 

IS THE PLAINTIFF ENTITLED TO THE RELIEFS SOUGHT AGAINST THE DEFENDANTS?

Counsel for the plaintiff in his closing submissions indicated to the court that inadvertently, the writ of summons was not amended to include a specific claim of declaration of title to plot 20 Lake road, Adum-Kumasi. He then relied on Hanna Asi (No.2) v GIHOC Refrigeration (2007/2008) SCGLR 16 and urged the court to grant that relief in plaintiff's favour so as to do substantial justice.

 

Counsel for the defendants(except the 4th ) took him on in his final address. Among other things, he argued strongly that the Hanna Asi (No .2)case which counsel for the plaintiff seeks to take refuge in dealt with REVIEW and that the plaintiff cannot resort to the decision in a review case as an authority to support his case.

 

The record needs to be set straight at this point. As the parties and their counsel can attest to, I inherited this case and at the time proceedings were adopted on 02/06/2016, the plaintiff, the 1st , 2nd 3rd and 4th defendants had already closed their case. I then proceeded to take the evidence of the 5th defendant and heard the case to its conclusion.

 

Going through the court's records, I noticed that counsel for the plaintiff had filed an application for amendment on 17/05/12 which was duly granted on 23/07/2012 by His Lordship Eric Baah with cost of GH¢ 200.00 against the Plaintiff. The amendment was to be filed within 14 days. On 26/07/2012, the plaintiff filed an "Amended writ of Summons Pursuant to Order of the Court dated 23/07/12". The 1st, 2nd 3rd and 5th defendants also filed an amended statement of defence on 25/09/12 which they headed in this manner:

 

"1st  , 2nd , 3rd  and 5th  DEFENDANTS AMENDED STATEMENT OF DEFENCE PURSUANT

 

TO PLAINTIFF'S AMENDED WRIT OF SUMMONS AND STATEMENT OF CLAIM FILED ON 28TH JULY,2012."

 

A thorough reading of the record did not reveal any such process filed by the plaintiff on 28/07/2012. It is highly probable, than not, that the process which the said defendants referred to is the process filed by the plaintiff on 26/07/2012. Then, on 30/10/2012, the plaintiff filed a reply to the process which the defendants (except the 4th) had filed on 29/09/2012.

 

The point I am trying to arrive at is that the plaintiff further amended his writ of summons and statement of claim subsequent to the amended process filed on 28/04/2011 pursuant to the order of the court dated 23/02/11. On the endorsement of the amended writ filed on 28/04/2011, there was no relief for declaration of title. However, on the amended writ of summons filed on 26/07/2012, the first relief is for a declaration of title to plot No. 20 Lake Road, Adum Kumasi.

 

I am unaware of any proceedings by which the plaintiff's amended writ of summons and statement of claim filed on 26/07/2012 was set aside and as a court of record, I am entitled to rely on that process. Since that process included a claim for declaration of title to the disputed property, I will disregard the submissions of both counsel based on the case of Hanna Asi (No.2).

 

That said, I will grant the plaintiff's relief for declaration of title to Plot No. 20 Lake Road Adum, Kumasi on the strength of the lease executed in his favour on 18/12/2009 and I so declare.

 

From the evidence before me, the tenancy agreements which the 1st , 2nd and 3rd defendants entered with the 4th defendant have all expired; their alleged payment of rent to the 5th defendant has no legal basis in view of the fact the 5th defendant has no legal title to the property. In short, the 1st , 2nd and 3rd defendants have no right, be it legal or equitable, to remain in the structures previously rented to them by the 4th defendant. Accordingly, the plaintiff's claim for an order of ejectment and recovery of possession against the 1st , 2nd and 3rd defendants will be granted and are hereby granted.

 

Time is of the essence here. This case has been pending since 10/05/2010.The lease was executed in the plaintiff's favour in December, 2009. It is provided in clause (p) of the lease as follows:

"At the expiration or sooner determination of the term hereby created quietly to yield up the demised premises together with the building or building(s) thereon in such state of repair and condition as shall be in accordance with the covenants herein before mentioned without any claim for compensation whatsoever."

 

Thus, the plaintiff does not even have the option of renewal after the fifty (50) years of which he has already lost almost seven (7) years. At the same time, it will be unjust to throw out the affected defendants at an unreasonably short notice. In the circumstance, I will give them a reasonable period of three months within which to give vacant possession to the plaintiff.

 

Relief (c) for an order of perpetual injunction against the defendants cannot be granted because the plaintiff's interest is only for fifty years without the option of renewal. I will however grant the injunction up to the time the plaintiff's interest will run out.

 

Judgment is entered in favour of the plaintiff and the following orders are hereby made:

(a) The Plaintiff is declared owner of Plot No. 20 Lake Road, Adum, Kumasi for the period of his 50 year lease dated         18/12/2009     

(b) The 1st , 2nd  and 3rd  defendants must vacate the premises they occupy on Plot No. 20, Lake Road, Adum- Kumasi and give vacant possession to the plaintiff within a period of three months from the date of this judgment, i.e. on or before 14/01/2017.                                

(c) The Defendants, their employees, agents, servants, workmen, and all those claiming through them are restrained from interfering with the plaintiff's ownership, possession and control of the Plot No. 20 Lake Road, Adum-Kumasi for the period of his lease, i.e. 50 years from 18/12/2009.

 

The oral submissions made by all the lawyers in this case have been considered. Cost of GH¢20,000.00 is awarded against the 1st, 2nd, 3rd and 5th Defendants; and cost of GH¢5,000.00 against the 4th Defendant all in favour of the Plaintiff.

 

ANGELINA MENSAH-HOMIAH (MRS.)

 

JUSTICE OF THE HIGH COURT