IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT(COMMERCIAL DIVISION)
ACCRA - A.D 2016
MOHAMMED ABDULLAH BAYERE AND NII OKPELLOR JACOB ABLORH MENSAH - (Plaintiffs)
SALEM INVESTMENT - (Defendants)
DATE: 29TH APRIL, 2016
SUIT NO: IRL/64/2010
JUDGES: HIS LORDSHIP ERIC KYEI BAFFOUR JUSTICE OF THE HIGH COURT
Plaintiff in his writ issued on 27/10/09 prayed for the reliefs set out on the endorsement. I do not find it useful to recount them as same had been dismissed by the court. To give a clearer picture of the counter claim of the defendant a summary of the statement of claim of the plaintiff, which though has been struck, out will suffice.
The Okpelor Din Sowah family is deemed to be the owners of a large track of land at Ashalley Botwe and in the amended statement of claim that accompanied the writ the 2nd plaintiff avers that by virtue of a power of attorney he became the lawful attorney of the Okpelor Sowah Din family lands at Nmai Dzorn. And that the lands in dispute are all part of the larger tract of land belonging to the family. The land acquired by the 1st plaintiff from the Okpelor Sowah Din family through the family’s lawful attorney, the 2nd plaintiff by virtue of a leasehold granted by the 2nd plaintiff acting by virtue of the power of attorney with the consent of the principal members of the family.
The defendant company has wholly denied the claim of the plaintiffs and have instead counterclaim for the following reliefs:
1. Declaration of title to all that piece or parcel of land.
2. An order of perpetual injunction restraining the plaintiffs their assigns, servants privies and any persons howsoever claiming through the plaintiffs any interest whatsoever in the land from having anything to do with the said land.
The defendant then set out the basis of his opposition to the claim in the statement of defence and the counterclaim. Defendant claims that if there ever existed any power of attorney at all same was revoked by the donor of the power and 2nd plaintiff could not have purported to have acted on any such power. And therefore 1st plaintiff could not have had any valid grant of the land. Again defendant denied 1st plaintiff ever coming into possession of the land.
Defendant then proceeded to set out how he became the owner of the land by means of an initial purchase from one Lydia Abbey of Nungua in 1997, who traces her root of title to the Nungua Wulomo. He then went into possession and started an estate development. Defendant further notes that he had the land registered and was issued with a land certificate. Subsequently, 2nd plaintiff approached him to perform custom to the Okpelor Din Sowah family as it had a matter in court with Ebenezer Kotei and defendant was already in possession of the land. And after the Supreme Court decided the matter he went to see the head of the Okpelor Din Sowah family to attorn tenancy to him as the owners of the land. The then head of family executed a leasehold agreement over a parcel of land measuring 57.067 acres the boundaries of which he provides in paragraph 5 of his counterclaim.
Defendant contends that 2nd plaintiff was stopped from alienating lands he knew was already in the possession of the defendant as he was bound by the lawful acts of his predecessors in title. Again defendant set up the statute of limitation as a defence that he had been on the land for thirteen years, the 2nd plaintiff could not purport to exercise any right of ownership. Defendant claim to have a valid title certificate which gives him indefeasible title to the land in dispute.
Eight issues and ten additional issues were settled for determination at the application for directions stage. And these were:
1. Whether or not the 1st plaintiff is the owner of the parcel of land in dispute.
2. Whether or not the 2nd plaintiff being a member of the Okpelor Din Sowah family of Teshie has the authority from the family owners of the land to grant same to the 1st plaintiff.
3. Whether or not the said grant to 1st plaintiff is a valid grant from the Okpelor Din family the absolute owners of the land
4. Whether the Okpelor Din Sowah family are the owners of the land by virtue of the Supreme Court decision in the case Ashalley Botwe Lands, Adjetey Agbosu v Kotey.
5. Whether or not the defendant has any valid title to the disputed land at all
6. Whether defendant acquired the land from a source (Lydia Abbey) any title to the land in dispute at all
7. Whether Eugene Odametey Sowah from 2002 to the date of the purported grant which is a second grant had any power to still grant the Nmai Dzorn lands to anyone after giving power of attorney to Nii Okpelor Ablorh Jacob Mensah to exclusively alienate Nmai Dzorn land belonging to the family
8. Whether or not the plaintiff are entitled to their claim
9. Whether or not the power of attorney granted 2nd plaintiff to administer the Okpelor Din Sowah lands was effective and valid
10. Whether or not 2nd plaintiff gave due notice of the power of attorney
11. Whether or not the purported transfer by the 2nd plaintiff to the 1st plaintiff was valid or transferred any interest at all to the 1st plaintiff.
12. Whether or not the defendant is the proper person to be sued in the instant proceedings
13. Whether defendant’s title is void ab initio
14. Whether or not the defendant obtained an indefeasible land title certificate which constitutes notice to the whole world
15. Whether or not the defendant was affected by the judgment of the Supreme Court
16. Whether or not the defendant attorned tenancy to the plaintiff’s predecessor in title
17. Whether or not the defendant has been in possession of the lands for more than 12 years
18. Whether or not the plaintiff is stopped from challenging defendant’s title
Trial in this case commenced on the 6th of February, 2014 until this matter was transferred to this court by the exercise of the power of transfer of the honourable Chief Justice under section 104 of the Courts Act, Act 459 . Since then the court has caused several hearing notices to be issued and served on the counsel for plaintiffs to appear for the matter to be dealt with. For instance on the 14th of March, 2016 there is a hearing notice which was served on K-San Law firm to appear before the court on 20th of April, 2016. The lawyers for plaintiff failed to appear. As the lawyers for Plaintiff failed to appear on the 17th of March, 2016, the court, guided by the principles established in the case of ADOMAKO ANANE v NANA OWUSU AGYEMANG (UNREPORTED) J4/42/2013 delivered on 26th February, 2014 exercised its discretion not to adopt the proceedings but to commence the trial de novo. As the plaintiffs failed to appear and the court was ready to commence the trial, it proceeded under Order 36 of the High Court (Civil Procedure) Rules, C. I. 47 and dismissed the claim of the plaintiffs. The court accordingly adjourned to the 20th of April, 2016 for the defendant to prove his counter claim and further ordered the defendant/counterclaimant to cause a hearing notice to be issued for service on the plaintiffs’ counsel. There is an affidavit of service of the process on K-Santo appear before the court on the 20th of April, 2016. Again, the plaintiffs having failed to appear the court had no choice than to proceed with the trial of the counter claim of the defendant.
EVALUATION OF THE EVIDENCE AND APPLICATION OF THE LAW
The defendant’s representative in the person of its managing director, William Adjei Koduah mounted the box on the 20th of April, 2016 and related how the defendant became the owner of the 56 acre land at Ashalley Botwe. He tendered evidence of title to the land of the acquisition in 1997 from Lydia Addy as Ex ‘A’, land documents granted to the defendant by one John Laryea as Ex ‘B’ and what he calls further supplementary documents as Ex ‘C’. He subsequently attorned tenancy to the Nii Okpelor Din Sowah family before and after the judgment in the case of IN RE ASHALLEY BOTWE LANDS. He made payments to the Din Sowah family of an amount in the sum of Ghc20.000 receipts of which he tendered in evidence as Ex ‘D’ series.
Though the Plaintiffs failed to appear and their claim was dismissed that nonetheless does not relieve the defendant/counterclaimant of his duty to prove his title to the land in dispute with clear and cogent evidence before the court.
A defendant/counterclaimant action is for all intent and purposes an action on its own and is supposed to be tested to verify if the counterclaimant proved his claim before the court. See the following cases JASS CO. LTD v APPAU  SCGLR 269 at 271; OPANIN KWASI ASAMOAH v. KWADWO APPIAH [2003-04] SCGLR 226 at 246; FOSUHENE v. OWUSU  32 GMJ 163.
Defendant/counterclaimant tendered in all the necessary documents of transfer and title certificate which shows that the defendant has indefeasible title to the 56 acres of land at Nmai Dzorn. Indeed his evidence stood unchallenged.
I also take note of section 43 of the Land Title Registration Law, PNDCL 152 that makes the rights of a registered proprietor of land indefeasible and held with all privileges free from all interest and claims.
Plaintiffs were afforded ample opportunity to be in court to cross examine the defendant/counterclaimant but failed to avail themselves before the court. The principle of law is that when a party makes an assertion under oath and his opponent fails or does not cross examine him on that claim, then that issue is deemed admitted by the opponent. For the Supreme Court in the case of TAKORADI FLOUR MILLS v SAMIR [2005-2006] SCGLR 882 notes as follows:
“the law is well settled that where the evidence led by a party is not challenged by his opponent in cross examination and the opponent does not tender evidence to the contrary, the facts deposed to in that evidence are deemed to have been admitted by the opponent and must be accepted by the trial court”
See alsoR v. BIRCHAM  CLR 430; R v FENLON  71 CAR 307. IN RE JOHNSON [DECEASED] DONKOR v PREMPEH  2 GLR 182
Relying on the above principles of law there had been no challenge whatsoever to the evidence of defendant counterclaimant even though the plaintiffs were offered the opportunity. I find and hold that defendant/counterclaimant proved its counterclaim to the standard set by the law.
Again it has been held in the case of SAMUEL MENSAH v. CHRISTOPHER KWABLALIGBIDI  77 GMJ 157 at 164 by Ofoe JA that:
“The law is that in an action for declaration of title to land, the plaintiff must prove on the preponderance of probabilities his acquisition either by purchase or traditional evidence, or clear or positive acts of unchallenged and sustained possession or substantial user of the disputed land.”
The defendant/counterclaimant did just that. The court accordingly grants all the reliefs that the defendant seeks in his counterclaim.
I award cost of Ghc10.000.00 in favour of the defendant/counterclaimant.