IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT (LAND DIVISION)
TEMA - A.D 2019
ADJETEY SOLOMON VENTURES - (Plaintiff)
EMMANUEL AFFRAM, EMMANUEL DOE, ANDREW OFORI, FLOENCE TSIKATA, MARY
ABOAGYE, GLORIA DUNYA NARTEY AND LOMOTEY ODAI
DATE: 17TH JANUARY, 2019
SUIT NO: E1 /08/2009
JUDGES: ALEXANDER OSEI TUTU J. SITTING AS A JUSTICE OF THE HIGH COURT
SOLOMON COLLINS ESHUN FOR THE PLAINTIFF
NATHANIEL MYERS FOR THE DEFENDANTS
On 22nd August 2008, the Plaintiff issued a writ against some trespassers on its land. The Defendants were served by substitution. Thereafter, the Defendants filed their entry of appearance and indicated their real names in place of trespassers. The writ was thus amended to reflect the names of the Defendants. Eventually, the Plaintiff on 7th May 2015 amended the writ with the following endorsement:
1. A Declaration of title to ALL that piece or parcel of land situate and lying at Oyibi, Accra and covering an approximate area of 23.70 acres.
2. Recovery of possession of the portion the Defendants are allegedly occupying.
3. Damages for trespass.
4. Perpetual Injunction against the Defendants
The first to the sixth Defendants filed a common Statement of Defence denying the Plaintiff’s claim.
They included the counterclaim below to their defence:
1. Declaration of title to six separate pieces or parcels of land each containing an approximate area of 0.16 acre.
2. Damages for trespass.
3. Recovery of possession.
4. Perpetual Injunction restraining the Plaintiff, its agents, assigns and workmen from ever dealing with the Plaintiff’s land.
The Co-Defendant on his part filed a separate Statement of Defence and counterclaimed for:
i. Declaration of title to the land contained in judgment plan marked ‘MLA2’ and described as Nii Adjin We land.
ii. Recovery of possession of any portion of the said land trespassed unto by the Plaintiff or its agents or assigns.
iii. Perpetual Injunction restraining the Plaintiff, its agents and assigns from further dealing with co-Defendant’s land.
After the close of pleadings, the following issues were adopted by the Court.
i. Whether or not the parcels of land granted to the Defendants by the Nii Adjin We Family forms part of the land acquired from the Odaiteitse Family of Nungua?
ii. Whether or not the Nii Adjin We Family has an immediate interest it could alienate to the Defendants?
iii. Whether or not the Plaintiff is entitled to its reliefs?
iv. Any other issues arising out of the pleadings?
The Defendants were originally seven, but on 9th March 2010, the Co-Defendant was joined to the suit. The Court ordered a composite plan to be drawn after the super-imposition of the parties’ site plans. This was done and the surveyor appeared in Court to tender his report. The lawyers for the parties got the opportunity to cross examine the surveyor after tendering his report. From the composite plan drawn, it was evident that the seventh Defendant’s land does not fall within the disputed area, so the Plaintiff discontinued the action against him on 10th February 2015.
The Plaintiff testified through its Managing Director. He called no witness in support of its case. On the other hand, the first Defendant testified for himself and on behalf of the second to the sixth Defendants. They called two other witnesses in support of their case. The Co-Defendant who is now the seventh Defendant also gave evidence in Court without calling any witness. The parties testified on the basis of witness statements the Court directed them to file.
The case of the Plaintiffs
The Managing Director of the Plaintiff Company, Lawyer Adjetey Solomon testified for the Plaintiff. Apart from being a lawyer, he is also a Management Consultant. His evidence was that the Plaintiff was in need of a land for the purpose of developing it into houses for sale. It acquired land of an approximate area of 23.70 acres at Oyibi, Accra from the Nii Odaiteistewe Family of Nungua headed by Numo Tawiah Tsuru Kwei. A lease executed in favour of the Plaintiff was tendered in evidence as Exhibit ‘A’.
The Plaintiff moved into occupation of the land and at the time of instituting the writ herein, it had about twelve (12) houses on the land with water and electricity adequately connected. The Defendants trespassed onto the Plaintiff’s land and erected structures thereon. The Plaintiff claimed that some of the Defendants’ structure were sited on areas earmarked for roads and schools, thus defeating the purpose for which it acquired the land. The Defendants’ unlawful construction haS caused great inconvenience and financial hardship to the Plaintiff, as it had stalled its developments on the land. The Plaintiff denied the Defendants’ assertion that they acquired their land from the Nii Adjin-We family. According to the Plaintiff, the Co-Defendant (7th Defendant) does not belong to the Odaiteitse We Family and so he does not have any land at the area to grant to the other Defendants. The six Defendants are therefore trespassers. The Plaintiff denied the judgment plan relied upon by the seventh Defendant.
The case of the first to the sixth Defendants
The six Defendants claimed that they acquired their lands in 1998 from Nii Lomotey Ansah of the Nii Adjin We Family. The Defendants are workers of Golden Tulip Hotel, Accra. The first Defendant is a member of the Welfare Committee of the Hotel. After the acquisition of their land, the Plaintiff in the year 2001 unlawfully ploughed a vast stretch of land including land belonging to the Nii Lomotey Ansah We Family and thereby displaced most of the pillars. A meeting with the elders of Oyibi eventually resolved the matter, leading to the relocation of the six Defendants’ lands and the preparation of their new documents.
That notwithstanding, the workers of the Plaintiff continued to trespass on their land, so the Defendants lodged a Police complaint against the Plaintiff. The Plaintiff was made to give an undertaking. The Defendants tendered a Judgment of the Circuit Court containing three site plans which depicted the land of Adjin We Family, the undertaking and their leases among others as exhibits in support of their case.
Samuel Armah Mensah (DW1), a principal elder of the Nii Odaiteitse family appeared to testify for the Defendants. He explained that he was the secretary for the family from 1999 until he felt sick in 2001. He told the Court that his family has three lineages. He also stated that the Nii Lomotey Ansah of Adjin We family has their land embedded within the land of the three lineages. According to him, the Plaintiff was granted land measuring 13 acres by two of the lineages. A site plan and an indenture were prepared for it.
The Plaintiff however sought to have the land of other people within the layout. It was advised to negotiate with them and that accounts for the undertaking. The Plaintiff’s representative later became the lawyer for the Nii Odaiteitse We family. The family however bacame disappointed after signing the new site plan the Plaintiff prepared, but discovered that it failed to negotiate with the neighbouring owners before taking their lands. The witness confirmed that the land in issue belonged to the Nii Adjin We Family of Oyibi and was lawfully granted to the Defendants. He explained the circumstances leading to how Nii Adjin We Family obtained their lands within the lands of the three lineages of the Odateitse We Family. The Court found that PW1 played instrumental role in the grant of the land to the Plaintiff as his name appeared on most of the exhibits tendered by the Plaintiff. In the lease executed for the Plaintiff, he signed as a witness. A Czech proverb says, “A good neighbour increases the value of your property”.
Nii Emmanuel Bortey Borketey appeared in Court to testify as DW2. He claimed to be the acting Chief of Oyibi and was a witness to the transaction of land between Nii Lomotey Ansah of Adjin We Family of Oyibi AND THE Defendants. According to him, when the Plaintiff unlawfully ploughed the entire land of the Defendants, it was reported to him. After resolving the matter, the Defendants were relocated to another portion and new indentures were prepared for them in 2001. PW2 signed the said indentures. He confirmed that the Plaintiff’s grantor’s land is embedded in the land of the three lineages of Nii Odaiteitse We Family. PW2 seemed to have struggled with most of the questions posed to him under cross examination.
The case of the 7th Defendant
The seventh Defendant told the Court that the other Defendants are grantees of the Adjin we family of which he belongs to. According to him, his family shares common boundary with the land of Odaiteitse We Family. He relied on a Circuit Court’s Judgment where terms of settlement was entered and their land was clearly delineated. He denied that the Plaintiff is the owner of the land in dispute. His evidence was not coherent at all.
In resolving the issues, we need to avert our minds to the fact that after directions had been taken in the matter, there were subsequent amendments of the Pleadings which affected the earlier issues set down as counsel for the Plaintiff rightly pointed out in his written address.
In order to narrow down the issues, I will endeavour to set down the facts that that appeared not to be in contention.
a. That the Plaintiff acquired its land from the Odateitse we Family.
b. That Odaiteitse we Family comprises of three lineages, excluding the Adjin we Family.
d. That the Plaintiff claimed it acquired its land in 2001, while the six Defendants also claimed to have acquired theirs in 1998.
What are in contention now are:
a. Whether the land the Plaintiff acquired includes the land sold to the six Defendants by the seventh Defendant?
b. Whether the Nii Adjin Family has any land embedded in the land of the Odaiteitsewe Family lands?
c. Whether the Nii Adjin we Family land was clearly delineated?
d. Whether the seventh Defendant’s Adjin we family had any land within the Odaiteitse lands that was granted to the other Defendants?
e. Whether the Plaintiff is entitled to its claim?
f. Whether the first to the seventh Defendants are entitled to their counterclaim?
g. Whether the seventh Defendant is also entitled to his counterclaim?
All the parties herein are making claims to various lands. It is common knowledge that a person seeking land title declaration has the primary duty to establish his root of title and the identity of his land. In the case of Ogbarmey-Tetteh v. Ogbarmey–Tetteh (1993-94) 1 GLR 353, the Supreme Court decided: “…In an action for a declaration of title, a plaintiff who failed to establish the root of his title must fail because such default was fatal to his case”. See also the cases of Henry Doe Samlafo v. GREDA and Anor. (2010) 26 GMJ 94 CA & Jass Co. Ltd and Another v. Appau and Anor. (2009) SCGLR 265. Therefore, all the parties before this Court are expected to lead evidence on their root of title and the identity of their lands. I regret to say that for a whole decade, the parties have been chasing their tail in this Court, but it is much ado about nothing; none of them succeeded in proving his claim.
Whether the land which the Plaintiff acquired includes the land sold to the six Defendants by the seventh Defendant?
On the root of title, the Plaintiff in the Amended Statement of Claim did not state who its grantor is and how it came by the land. All it stated at paragraphs 1 & 2 of the Amended Statement of Claim was that it is the owner of a 23.70 acre-plot of land at Oyibi which it acquired for the purpose of developing modern houses. For consistency sake, it is advisable to plead the root of title before leading evidence on it during the trial. In the case of Mrs. Vicentia Mensah & Another v. Numo Adjei Kwanko II,  DLSC 2601, Anin Yeboah JSC held: “In land suits in which title is in issue, the party claiming title must always plead and prove his root of title to enable him succeed”. (My emphasis).
At paragraph 7 of the Amended Reply and Defence to Counterclaim, the Plaintiff averred that it paid its grantor and all persons who claimed to own land. The said paragraph suggested that apart from the Odaiteitsewe Family, the Plaintiff acquired its land from other people. How many acres of land were directly granted by the Odaiteitse We family to the Plaintiff as stated at paragraph 7 of the Amended Reply and Defence to Counterclaim? The mode of acquisition of the Odaiteitse we Family land was not explained. The root of the Plaintiff’s grantor’s title was left in oblivion after the evidence of the Plaintiff’s representative. Nonetheless, we may excuse the Plaintiff on that, because the Defendants and their witnesses especially DW1 seemed not to disagree with the Plaintiff that the Odaiteitse We Family has land at the area which was sold to the Plaintiff.
How many acres of land were sold by the others? Were those individuals representing their lineages or they sold the land in their individual capacities? If they represented their respective lineages, what is there to prove? Although some payments were allegedly made by the Plaintiff to some other lineages/families for the purchase of the land as depicted by the exhibits, the Plaintiff did not proffer any clarification. For instance, in Exhibits ‘D12’, ‘D13’, ‘D14, ‘D15’ & ‘D19’, the Plaintiff made payments to Anteley Family. Similarly, Exhibits ‘D2’, ‘D21 & ‘D22’ show moneys paid by the Plaintiff to Tettey Din lineage. These families/lineage are not part of the Odaiteitse we family, so where is the conveyance executed for the Plaintiff covering their lands? Nothing was said or produced about that.
The Plaintiff made the appreciation of its case quite difficult. Most material facts were absent in the pleadings, but were canvassed during the trial. The notion that we do not plead evidence does not mean material facts should also not be pleaded.
On the identity of the land, the least said about it the better. The Plaintiff commenced this action claiming a 23.70 acre-land. The first Defendant at paragraphs 28-31 of his witness statement is of the view that the Plaintiff does not know the boundaries of its land, hence the inclusion of one Gideon Agbemabiase as the original seventh defendant. According to him, it was after the drawing up of the composite plan before the Plaintiff realized that Gideon’s land is nowhere near the land being litigated in this Court and the Plaintiff discontinued against him. There appears to be some truth with his observation.
The Plaintiff struggled in giving the dimension of its land. During the trial, it gave an acreage different from what it had endorsed on the amended writ. I recognize the fact that the Managing Director of the Plaintiff even drafted the lease, and might have couched the instrument including the description of the land the way he wanted it. But it may not always be beneficial to take too much advantage of one’s privileged position. The Chinese warn, “It is not economical to go to bed early to save the candles if the result is twins”.
At pages 5 & 6 of the Proceedings when the Plaintiff was being cross-examined by the Counsel for the Defendants, he told the Court that its land was originally about thirty three point something (33+) acres, but the Chief of Oyibi requested for three point something (3 +) acres which was granted him so the Plaintiff’s land “eventually” reduced to twenty nine point something (29 +) acres. When the counsel for the Plaintiff noticed the damage caused to their case in respect of the identity of the land, he was compelled to re-examine his client. On that occasion, the Plaintiff’s representative said their land is 23.70 acres. According to the former United States President, Ronald Reagan, “If you are explaining, you are losing”. There remained a missing link in the evidence as to how the Plaintiff’s eventual 29 point something acre-land further reduced to 23.70 acres. The Chadians say, “A person with too much ambition cannot sleep in peace”.
Where the identity of the land claimed is vague, it becomes difficult for the Court to grant the Plaintiff’s claim. In the case of Brown v. Darko and Another (1961) GLR 539, Ollenu J. (As he then was) held at holding (3) as follows: “The description of the land in question is vague; the land cannot be identified with any particularity. The court cannot therefore make an order to convey such land”.
Similarly, in the case of Boakyem and Others v. Ansah (1963) 2 GLR 223, it was held at holding 2 as follows: “One of the essential requisites to be proved in an allegation of a grant of land is the precise area of the land alleged to have been granted”. See also the case of Yawson v. Mensah (2012) 39 MLRG 121 at page 123.
The Plaintiff’s lease allegedly takes effect from 4th January 2001 and the land in the schedule is the 23.70 acres. There was no explanation as to when the lease was first thirty three plus (33 +) acres before it was reduced.
The identity of the Plaintiff’s land becomes more doubtful when one juxtaposes the boundaries as described on the endorsement on the writ of summons and the schedule attached to the lease. On the endorsement, the Plaintiff described its land on the South “as bounded by Nii Emmanuel Borketey’s land and Nii Dzange We Family land measuring 1,145 feet more or less …”. In the schedule attached to the lease, it described the said boundary not as measuring 1,145 feet but 976 feet. The disparity of over 150 feet is not insignificant, in my view. In the case of Akoto II & Others v. Kavege & Others (1984-86) 2 GLR 365, the Court of Appeal held at holding 2 that the failure by the Plaintiff to prove even one side of a boundary may be fatal to his case.
Nii Emmanuel Borketey Bortey is described in the schedule as a boundary owner, but when we look at the site plan of the land measuring 23.70 acres, all boundary owners are mentioned, except Nii Emmanuel Borketey Bortey. The Plaintiff’s lease has two different site plans: one is of an acreage of 22.27 and the other is 23.70 acres. Which of these two should the Court rely on? There was no explanation as to how the Plaintiff came by these two conflicting site plans covering the same land.
Between the two site plans, it is the one measuring the 22.27 acres that bears the stamp of the Lands Commission. The 23.70 acres site plan does not bear such stamp. Does that mean the Plaintiff’s land which it claims to be processing at the Lands Commission is 22.27 acres and not the 23.70 or 29 plus acres? In the case of Tetteh & Anor. v. Hayford  44 GMJ 11, the Supreme Court held: “Failure to prove the identity of the land would be fatal to a claim for declaration of title”
The evidence of DW1 did issue a death blow to the case of the Plaintiff. PW1 is a principal elder of the Odaiteitse We family. He signed the Plaintiff’s lease as a witness. He told the Court at paragraph 11 of his witness statement that two lineages of the Odaiteitsewe family granted land of only 13 acres to the Plaintiff and the Plaintiff could not refute or deny the assertion in cross examination. The law is clear on that. In the case of In Re Presidential Election Petition: Akufo-Addo & 2 Ors. (No. 4) v. Mahama 2 Ors. (No. 4)  SCGLR (Special Edition) 73, Anin Yeboah JSC held at page 425 as follows: “I accept the proposition of law that when evidence led against a party is unchallenged under cross-examination, the court is bound to accept that evidence.”. See also the cases of Takoradi Flour Mills v. Samir Faris [2005-2006] SCGLR 882 at page 890, Amontia IV v. Akortia Oworsika [2001-2002] SCGLR 637 & Aryeetey v. Brown (2006) 5 MLRG 160 at page 164 C.A.
Moreover, the Plaintiff’s lease is dated 4th January 2001. However, both site plans bear dates in August 2005. It is common knowledge that before leases are executed, the site plans are first prepared so that they can be captured in the lease. How could the lease have been executed in 2001 without any site plan as at the time? The Plaintiff failed to explain the circumstances surrounding the four year delay in the preparation of the site plan. The evidence of DW1 is vital. He bridged the gap. He told the Court that after the preparation of the lease by the Plaintiff’s Managing Director in 2001, there was a misunderstanding between members of the Odaiteitse we Family for some time leading to the Circuit Court’s action and its settlement before the lease was signed. His evidence on that fact could also not be controverted by the Plaintiff under cross examination.
In fact, the Plaintiff did confirm that the transaction was put on hold till after the court suit. When the Plaintiff was being cross examined by counsel for the Defendant, he answered at page 13 of the Proceedings as follows:
“Q: You signed the Circuit Court settlement as counsel for the Defendant, is that not correct?
A. My Lord, I recognized my signature but there is a site plan smuggled into it. One Moses Ayeh Afotey was a member of one of the lineages not Adjin We was dissatisfied with the monies shared so he took three members of Odaiteitse we family to the Circuit Court. I was not present in that court. When they prepared their terms of settlement, the Defendant asked me to sign for them which I did”.
Now what is the commencement date of the lease? Is it the 4th January 2001 which is stated in the lease or it is from 2005 after the Court settlement and the eventual signature? If we are to go by the 2001 date, it would mean that because there were unresolved issues surrounding the grant within the Odaiteitse we Family which frustrated the signing of the lease, no contract had been concluded by then. On the contrary, if we go by the 2005 date, it would be difficult for us to know when exactly the lease commenced, since no specific date was stated in 2005.
I believe the commencement date should have been altered in 2005 when the Odaiteitsewe family eventually agreed to grant the land to the Plaintiff. Certainty, the commencement and expiration dates are very vital so far as leases are concerned. Gyan J. (As he then was) sitting at the High Court, Accra decided in the case of Gyebu XV v. Mondial Veneer Ltd.  5 G.M.J. 218 at page 234 thus: “There can be no lease if the date for its commencement and the date for its expiration cannot be precisely ascertained…. This means the dates on which it begins and ends must never be in doubt. See Ghana Land Law Conveyancing, by B.J. da Rocha & CHL Lodoh”. (The emphasis is mine). See the cases of A.R. Duodu- Sakyiama v. TDC  DLSC 826 & Okai v. Ocansey [1992-93] 3 GBR 1028, C.A., per Adjabeng J.A.
Further, I realized that the site plans of the Plaintiff appeared not to have been approved by the Director of Surveys as required by law thereby rendering it invalid. Akamba JSC in the case of Abed Nortey v. African Institute of Journalism and Communication  77 G.M.J. 1 at page 10 held “Exhibit ‘A’ which is a site plan … is not dated and also not signed by the Director of Survey or his representative. Indeed, this omission by the plaintiff is contrary to section 3 (1) of L.I. 1444, the Survey (Supervision and Approval of Plans) Regulations, 1989 which makes it mandatory for plans of any parcel of land attached to any instrument for the registration of such instruments to be approved by the Director of Survey or any official surveyor authorized in that behalf. As a result of this stark infringement of the statutory requirement, exhibit ‘A’ is rendered of no probative value as rightly determined by the Court of Appeal. Notwithstanding that the exhibit ‘A’ was accepted in evidence without objection, it could not constitute evidence for the purpose for which it was tendered since it infringed the instrument. This is so because the courts have a duty to ensure compliance with statutes including subsidiary legislations like L.I. 1444”.
The Court finds that although the Plaintiff acquired some lands from the Odaiteitsewe family, it could not prove that it was the 23.70 acres it had sued for. The vagueness in the identity of the land by the Plaintiff disables me from making a finding in its favour.
Whether the Nii Adjin Family has any land embedded in the land of the Odaiteitsewe Family lands?
The Plaintiff’s undertaking on 5th September 2005 is the basis of the Defendants’ assertion that the Nii Adjin Family lands are within the Odaiteitse We Family lands. The Defendants further relied on the terms of settlement filed at the Circuit Court which was signed by the Plaintiff’s representative in his capacity as the solicitor for the Odaiteitse we Family. The Plaintiff tried to dissociate itself from the two documents. Why would he want to distance himself from his own grantors? After all, the Congolese say, “Lovers do not hide their nakedness”.
At page 5 of the Proceedings, the representative for the Plaintiff denied ever acting for the Odateitse We family as their solicitor. But when quizzed further, he conceded that he signed the terms of settlement at the Circuit Court at the request of the Odaiteitse we family, though he was not present in the Court. This is beyond my comprehension. How can a lawyer sign a legal document and decide not to take responsibility for it? It is a worry that we try to find excuses for our actions. William Shakespeare expressed his disgust about such attitude when he said, “And oftentimes excusing of fault doth make the fault the worst by the excuse”.
Even lay persons who sign documents are bound by them. See the case of Nief Simon Akill (Substututed by Vida Akill) v. James Christopher O. Lamptey (Substituted by Emmanuel O. W. Chruichank) & Another, Civil App. No. J4/05/2016, dated 20th November 2017, S.C. (Unreported) per Gbadegbe JSC
There were site plans attached to the consent judgment for the three lineages of Nii Odaiteitse We family. They were duly certified by the registrar of the Circuit Court. The land of Nii Adjin we Family is mentioned as a boundary owner in the site plan of Nii Afotey Kwabla family, which is one of the three lineages of Odaiteitse We Family. The Plaintiff’s representative sought to say that the site plan was smuggled into the terms of settlement. The Court does not find his assertion tenable. If that was not the proper site plan, he should have told the Court where the proper one was. His demeanour and approach to the questions posed to him compel me to believe that he was deliberately denying the site plan to suit his own cause.
Nature has its own way of exposing us when we tend to take the road of lies. It is not always our answers that betray us, but sometimes our questions. Voltaire once quoted: “Judge a man by his questions rather than his answers”. The Counsel for the Plaintiff appeared to have been caught in the web. He asked the first Defendant under cross examination at page 28 of the Proceedings as follows:
“Q: I am further putting it to you that the Nii Adjin Family that you see on the site plan belonging to the Nii Afotey Kwabla family only shows that they share boundary with Nii Afotey Kwabla family?
A. Yes my Lord. The site plan shows Nii Afotey Kwabla family. There are a lot of site plans within and that is Nii Addey and others and Afotey Sokpor and we have Nii Adjin We sharing boundary with them”.
When the Plaintiff was crossed examined on the exhibit, he claimed he could not see any land of Nii Adjin we family on the document. Now, we see his counsel admitting that there is such a land for the Nii Adjin we family on the document.
In respect of the Undertaking, the Plaintiff and its counsel created the impression that it had to do with another land. The Plaintiff could however not show the land it relates to. When one carefully examines the manner the Plaintiff answered the questions, he would come to one conclusion - that the land in the undertaking relates to the land at the area in dispute.
The Undertaking which was signed by the Plaintiff with its official stamp reads:
“UNDERTAKING BY ADJETEY SOLOMON VENTURES LIMITED
We Adjetey Solomon Ventures Limited give this undertaking that should all negotiations for the release of Nii Adjin-We land given to them by Nii Odaiteitse We Family to us for development fail, we are under obligation and hereby prepared to give their land back to them by transferring it from the original site plan signed by us by the Nii Odaiteitse we Family into their name with the consent and approval of the said Nii Odaiteitsewe Family Elders, since their land is embodied or covered by the said site plan….”
From the above, there is no dispute about the fact that the Plaintiff recognized that Nii Adjin We land was given to them by the Odaiteitsewe Family as PW1 confirmed. There is also no dispute about the fact that the Plaintiff acknowledged that Nii Adjin We lands are embodied or covered by the site plan. According to a German proverb, “Truth creeps not into corners”. By sections 25 & 26 of the Evidence Act, 1975 (NRCD 323) the Plaintiff is now estopped from denying its own admission in the documents.
Whether the Nii Adjin land was clearly delineated?
Although it was evident that the Nii Adjin we family has land within the Odaiteitse we family lands, the said land was not clearly identified. As has been noted earlier in this Judgment, the certainty in the identification of the land cannot be taken for granted. The co-defendant did not lead evidence on the size of the Nii Adjin we family land he is claiming. On the composite plan, Nii Adjin we’s land was allegedly shown. There was an indication that they showed their site plan to the surveyor. This means that the said family had a site plan in existence. The law in circumstances like that would require its production in Court to satisfy the requirement of proof, but they did not. See the cases of Majolagbe v. Larbi (1959) GLR 190 at page 192, In Re Wa Na; Issah Bukari & Anor. v. Mahama Bayong & Ors. [2013-2014] 2 SCGLR 1590 at holding 2; Marian Obeng Mintah v. Francis Ampenyin  95 G.M.J. 1 at page 14, per Akamba JSC & John Tagoe v. Accra Brewery Ltd.  93 G.M.J. 103 at page 123.
Unfortunately, during the trial no such site plan of Adjin we family was produced by the second Defendant. The English born American author, Christopher Hitchens is reputed to have said, “What can be asserted without evidence can also be dismissed without evidence”. The Defendants appeared to have relied on the site plan of Nii Afotey Kwablah family. This is unacceptable. Since they want a declaration for their own land, they need to have their own site plan. Confucius once said, “The hardest thing to find is a black cat in a dark room, especially if there is no cat”.
We may recall that the first Defendant was questioned under cross examination about the size of the Nii Adjin family land. Because no site plan existed, he struggled with the answer and eventually mentioned the 6.51 acres on the site plan of Nii Afotey Kwabla family. The Croatians say, “A guest will not know what fasting means”. I find that whereas Nii Adjin We family has a land within the Odaiteitse we family land, its limits is a mystery to the Court as it was not proved during the trial.
Whether the seventh Defendant had any land within the Odaiteitse lands that he granted to the other Defendants?
All the seven Defendants counterclaimed and are expected to lead credible evidence to establish their Counterclaims. It is trite that a Defendant who counterclaims assumes the same burden as Plaintiff. See the cases of Opanin Nantwi Ababio & Another v. Pastor Nana Adusei  DLSC 259, In Re Will of Bremansu; Akonu – Baffoe & Others, Buaku v. Vandyke (Substituted by) Bremansu (2012) 2 SC GLR 1313 at holding 1 & Veronica Opoku (suing per her lawful attorney, Ms. Dorothy Poku v. Mary Lartey  DLSC 247.
The Supreme Court speaking per Adinyira JSC recently in the case of Yehans International Ltd. v. Martey Tsuru Family & 1 Or.  DLSC 2488 held, “It is settled that a person claiming title has to prove (i) his root of title, (ii) mode of acquisition and (iii) various acts of possession exercised over the land … This can be proved by either traditional evidence or by overt acts of ownership in respect of the land in dispute.
A Defendant who relies on derivative title must prove the title of his grantor. Awuku v. Tetteh  1 SCGLR 366”.
The Defendants, just like the Plaintiff, also had their good share of doubts created in their cases. According to our ancestors, “The fall of a dry leave is a warning to the green one”. The first six Defendants’ derived and premised their title on the seventh Defendant title. Therefore, the seventh Defendant was required to first establish his title. I cannot proceed without commenting that the seventh Defendant was an apology of a party/witness who had counterclaimed. After filing a witness statement, he appeared in Court to denounce what he himself had signed and filed. His counsel urged the Court in his written submission not to make fetish of the absence of a jurat with his evidence. I think the issue is not about the jurat. It is all about the credibility of the person. Even where an illiterate signs or thumbprints a witness statement, he ensures that the content is read to him first before he thumbprints.
A witness statement is not an ordinary legal document, it contains solemn depositions that end up being tendered under oath. Therefore, if the statement therein is false, the witness lends himself to be punished for perjury. How could the seventh Defendant come to Court to deny his own witness statement made and tendered under oath, and expect the Court to take it lightly? Having unambiguously stated in the witness statement that the late Nii Lomotey Ansah was his father, he came to Court to deny that and said, he was his grandfather.
The credibility of the seventh Defendant was further put to test when he told the Court that he was illiterate and could not read and write. After being confronted in cross examination, he ended up conceding that he is literate. In an attempt to do damage control, his lawyer re-examined him and this time, he reverted to his earlier position that he is illiterate. What exposed him was the fact that in the lease executed for the Defendants, he was the one whose name appeared as having read over, explained and interpreted the contents thereof to Numo Laryea Tawiah Jonathan in Ga before he thumb printed. When he was confronted with it, he told the Court that somebody else read and explained to him first before he re-interpreted to Numo Laryea Tawiah Jonathan. Much as I agree with counsel for the Defendants that we need not make fetish of jurat, we need not also allow such tricksters to disingenuously dribble the Court. The law is clear that a party whose evidence whether sworn or not sworn is contradictory is not worthy of credit unless the reason for the contradiction is explained. See the case of Sanusi Alhaji v. Republic (2015) 85 GMJ 11 at page 50, per Ayebi JA.
The Courts have held that illiteracy cannot be used as a cloak to rescind from one’s earlier declaration. In the case of Swiss African Trading Co Ltd v Aryee  1 GLR 185, Van Lare JSC held: “The claimant was estopped from succeeding in his claim. Illiteracy qua illiteracy is no defence in these circumstances and further the claimant well knew and understood that the conveyance which he signed as witness was in favour of his brother only”. See the case of Mary Tsotso Laryea & 4 Others v. Amarkai Laryea  DLSC 194.
On the evidence adduced by the seventh Defendant, he could not tell the Court how his Nii Adjin family came by their land. Just like the Plaintiff, he ought to have proven his root of title and the identity of the land. In the words of Carl Jung, “No tree, it is said, can grow to heaven unless its roots reach down to hell”.
In his Statement of Defence, he seemed to have traced his root of title to the Consent Judgment at the
Circuit Court. He pleaded at paragraph 3 as follows:
“(3) In further answer to the above paragraph the co-defendant will say that its family land shares a common boundary with Odaiteitse we family land and that on 9/5/2002 there was a suit in the Circuit Court entitled: “Nii Moses Laryea vrs. 1. Nii Kojo Nmai, 2. Nii Woleitste Charway Mensah & 3. Nii Tawaih Tsuru Quaye, in which terms of settlement was filed and the lands of the parties were demarcated and accepted as judgment plan and this co-defendant’s land was clearly delineated and the plaintiff gave the undertaking that if co-defendant’s family are not prepared to sell he will release their land to them”.
I have no difficulty believing that the Nii Adjin Family was factored into the preparation of the site plan. But for the seventh Defendant to get a favourable ruling on this issue, I think he ought to have done more. We have already found that the Nii Adjin we Family land was not clearly identified, though located within the Odaiteitse we family lands.
On whether the seventh Defendant had any land to grant to the six Defendants, I am afraid I cannot answer in the affirmative. DW1 explained at page 40 of the Proceedings when he was under cross examination how the Nii Adjin We Family came by the land embedded in the Odaiteitse we Family lands. For ease of reference, I reproduce the discourse between the Plaintiff’s Counsel and DW1 for their full effect.
“Q: So this consent judgment did not involve any member of the Adjin We Family?
A. That is so, my Lord, but I have an explanation. Three lineages of Odaiteitse family own land at Oyibi. Our ancestors told us that because of a marriage between one of the elders and a lady from the Adjin We specifically Nii Lomotey Ansah’s lineage the land was given to them. So when the consent judgment was being written site plan was prepared indicating this Adjin We family’s portion of the site plan with no dispute from any angle at all”.
The evidence of the witness suggested that based on the inter-marriage between the members of the Odaiteitsewe family and Adjin We family, the latter was factored into the sharing of the land at the settlement as depicted by one of the site plan. DW1 being an elder of the Odaiteitsewe family gave us some insight into the matter. Ugandan proverb goes, “An elder’s handbag is never completely empty”.
The seventh Defendant at page 53 of the Proceedings again lied to the Court when he was under cross examination. Even though it was clear on the wall that Adjin we family was not a party to the settlement at the court, he still wanted the Court to believe otherwise.
“Q; So the consent judgment you referred to in your witness statement, it was a judgment between which parties? In other words, who are the parties involved in that case?
A: My Lord, it was between Odaiteitse we family and Adjin family”.
The first Defendant on behalf of the other five Defendants also traced the root of their grantor’s title to the Consent Judgment. He was emphatic that they acquired the land after satisfying themselves with the Judgment. At paragraphs 8 & 9 of the Further Witness Statement filed, he stated thus:
“8. That the Defendants before they obtained their grants made inquiries and were informed that there was a settlement in the Circuit Court over these lands which culminated in a Judgment and that
9. thereafter a composite plan was drawn for the families which included that of the Defendant’s grantor’s land”.
I can say on authority that the above statement is palpably false. The six Defendants never acquired their land after the Circuit Court case as they are alleging. The Circuit Court Case bears the Suit Number: CCL 182/2001, indicating that the matter involving Moses Laryea Afotey vrs. Nii Kojo Nmai & 2 Ors. was filed in the 2001 Legal Year. The terms of settlement was signed on 27th March 2002 and was filed in Court on 9th May 2002 before His Honour K.O. Kumi adopted it as consent judgment of the Court on 13th May 2002.
Now if the six Defendants acquired their lands after satisfying themselves with the consent judgment in 2002, how could that have been possible if they acquired their land in 1998? In the absence of the Court settlement, how did they know that the Odaiteitse we family had agreed to allow the Nii Adjin we family have a share in their land?
The Undertaking is another document relied upon by the Defendants. It is dated 5th September 2005 and it was about seven (7) good years after the Defendant had acquired their land. In the absence of any evidence on record that as at 1998, the seventh Defendant had the land in issue, the Court cannot put its stamp on the grant made to the six Defendants in 1998 by the seventh Defendant’s Adjin we’s family.
Additionally, the capacity in which the seventh Defendant counterclaimed for the land was clouded in obscurity. He did not indicate whether he was counterclaiming for the Nii Adjin we family or it was a personal action. It is not for nothing that the law requires action prosecuted in a representative capacity to be clearly stated. See the cases of Nkua v. Konadu & Boateng (2009) SCGLR 134 at page 138; [2008-2009] 2 GLR 562, SC; Madina Shopping Mall Association v. Rosehill Gh. Ltd.  39 M.L.R.G. 81, S.C. & Fosua v. Dufie [2008-2009] 2 GLR 1 at 31 per Ansah JSC.
The headship of the seventh Defendant’s family at the time the land was allegedly granted to the six Defendants was unclear. Before the Defendants gave their evidence, the impression that was created was that it was Nii Lomotey Ansah who granted the land to the Defendants. However, it manifested during the trial that as at 1998 when the land was being granted, Nii Lomotey Ansah had passed and the Defendants claimed it was Numo Tawiah Laryea Jonathan who rather was the head of family and signed the lease. When I checked the recitals in the lease I found that the same Nii Lomotey Ansah Tawiah in that same year allegedly executed the headlease.
The Defendants failed to tell the Court when Nii Lomotey Ansah died, thus raising doubts in their case. The name Atta Nkpa Laryea also surfaced as the head of the seventh Defendant’s family at the time the land was granted and as I said, the connection with the others was very poor. Therefore, the concerns raised by counsel for the Plaintiff over the capacity of the one who alienated the land appears legitimate and the Defendants should have clearly established it. It is trite that under customary law, it is the head of family who can lawfully alienate family lands with the consent of the principal elders of the family. See the case of Fianku v. Aggrey [2007-2008] SCGLR 1135.
Further, if Nii Lomotey Ansah had passed as at 1998, he could not have granted the land to the Defendants as they allege. The first Defendant had no answer when he was questioned about it. The Plaintiff further questioned the first Defendant that if indeed the Nii Adjin is one of the lineages of the Odaiteitse We Family, they could not have taken a sublease from them.
It was evident that the six Defendants did not know the actual interest of their grantor. The Nii Lomotey Ansah Family was deemed to be the same as Nii Jonathan Tawiah Laryea Family. However, Exhibit EA1 for instance indicates that on 26th March 1998, the latter granted a lease to the former. Tried as counsel for the Plaintiff asked questions for clarification, the Defendants could not provide and was found wanting. When pointed out to the first Defendant during cross examination why his grantor was described in their lease as a lessor, his answer was “Yes, my Lord. I think this could be a typographical error”. What else could he have said? Indeed, the Ewe were right when they said in one of their proverbs, “A poor man’s son does not brag”.
As it stands now, the six Defendants’ grantor granted the land at one stage in their capacity as lessors of the land and also as sublessors. How could that be possible? The genuineness of the grant is put in doubt when the DW2 whose name appeared as a witness told the Court that he never saw anybody signing the documents. They were prepared and later sent to him to sign, which he did. (See page 48 of the Proceedings). The simple question is, so what did he witness? An attesting witness, according to Black’s Law Dictionary, ninth edition, is “One who vouches for the authenticity of another’s signature by signing an instrument that the other has signed”. The Concise Oxford English Dictionary, tenth edition, revised also defines a witness in relation to attestation as: “A person who is present at the signing of a document and signs it themselves to confirm this”.
Section 40 (1) of NRCD 175 provides: “Every conveyance shall be executed in the presence of and attested by at least one witness”. The combined effect of the above shows that an attesting witness must be present when a document is being signed to be able to vouch for the authenticity of the party’s signature. Therefore, if DW2 who is the witness was not present when the purported leases of the Defendants were executed, then he cannot be recognized as such.
The Supreme Court in the case of Kwadwo S. Bamfo v. Kwesi Sintim  41 GMJ 1 at pages 14-15, SC held that even after the instrument had been signed, it ought to be proved in the presence of the parties. See the case of Tackie v. Lamptey [2001-02] 2 GLR 186, CA.
The oaths of proof in this case utterly undo the Defendants’ case, as it casts immense doubts on the validity of the leases executed for the six Defendants. The seventh Defendant stated that on 16th October 1998, he was present when he saw Nii Lomotey Ansah Family signing them. If Nii Lomotey Ansah had died by then as the evidence disclosed, how could he have signed the instrument? Why would the seventh Defendant lie under oath that the man signed when hewas already dead? Recently, the Supreme Court, when faced with a similar dubious document, where the facts including that of the oaths of proof did not add up in the case of Madam Comfort Ofori v. Kwame Appenteng  DLSC 2092, it did not hesitate to reject it. Benin JSC speaking for the Court held: “A court of justice cannot countenance such misconduct on the part of whoever was involved in putting the 2005 registration number on exhibit 1. Exhibit 1 does not give rise to any legal consequence and is rejected accordingly.”
Further, the circumstances under which the six Defendants prepared their second site plans in 2010 render them dubious. They did so during the pendency of the suit in Court and after the Court had ordered for them to submit their site plans for a composite plan to be drawn. The site plans they prepared in 2010 are self-serving to say the least. They are not dated and neither have they been approved by the Director of Surveys, so just like that of the Plaintiff, they are invalid.
Since it is title declaration which the Plaintiff is disputing that the Adjin We Family has no land at the area to give to the six Defendants, it was necessary that the Defendants established clearly the title and the identity of the land of Nii Adjin We Family. The Defendants over-concentrated on the Circuit Court’s Judgmnet and the Undertaking which exposed the Plaintiff, but did not bother to go the extra mile to prove their own Counterclaim. Perhaps, they should have taken this advice of Stefon Diggs, an American sportsman, “I don’t just study my opponent. I study myself. It’s something you have to do to get better”.
The current coach for the Atlanta Falcons team in U.S., Dan Quinn put it better when he said, “We don’t spend so much time on the opponent that we really forget it is really about us”. The evidence of the Defendants is thus fraught with lingering doubts thereby weakening their case in no small measure.
Whether or not the Plaintiff is entitled to its reliefs?
The uncertainty in the identification of the Plaintiff’s land coupled with the manner in which the Plaintiff conducted its affairs with the Odaiteitse we family combine to weaken its case and I do not think it deserves the declaration it is seeking. I must be quick to add that the denial of the Plaintiff’s reliefs does not thereby hand victory to the Defendants on a silver platter in respect of their counterclaim. This was the clear holding of the cases of Aryeh & Akapko v. Ayaa Iddrisu (2010) SCGLR 891 at holding 4 & Fuseini v. Moro [2010-2012] 2 GLR 434, C.A. at holding 2.
In the case of Hydrafoam Estates Ltd. v. Owusu (per lawful attorney) Okine [2013-2014] 2 SCGLR 1117, the apex Court per Anin Yeboah JSC held at holding 4 as follows: “Counsel for the defendant erred in arguing that since the plaintiffs had no title to the disputed land, the defendant’s counterclaim ought to have been upheld by the Court of Appeal. At common law, a defendant was not bound to counterclaim against a plaintiff. Where a defendant had put in a counterclaim, it must be proved to the satisfaction of the court, because a counterclaim was an independent action”.
Consequently, the claims of the Plaintiff and the Counterclaims of all the Defendant are dismissed.
There shall be no order as to costs.