ATLANTIC INTERNATIONAL CO. LTD VRS ADJETEY (FAL/270/2015) [2023] GHAHC 441 (21 December 2023)

IN THE SUPERIOR COURT OF JUDICATURE IN THE HIGH COURT OF JUSTICE, LAW COURT COMPLEX, (LAND DIVISION ONE) HELD IN ACCRA ON THURSDAY THE 21ST DAY OF DECEMBER 2023 BEFORE JUSTICE ABENA A. OPPONG ATLANTIC INTERNATIONAL CO. LTD SUIT NO. FAL/270/2015 V. JACOB MENSAH ADJETEY EMMANUEL KESSEL BOATENG IBRAHIM HUDU PLAINTIFF AND 3RD DEFENDANT ABSENT 1ST AND 2ND DEFENDANTS ARE REPRESENTED BY IBRAHIM MOHAMMED DAVID AGYEKUM HOLDING THE BRIEF OF CHARLES TETTEY FOR THE PLAINTIFF PRESENT WITH YAW OWUSU KESSE CANDY FRIMPONG BAIDOO HOLDING THE BRIEF OF AKUA SIKA SAFO FOR THE 1ST AND 2ND DEFENDANTS PRESENT J U D G M E N T 1. The Plaintiff claims to have acquired the disputed land in June 1978 by way of a lease and same registered at the Land Registry as No. 746/1985. The Plaintiff claims to have been in undisturbed possession until the Defendant without its knowledge or consent, entered the land and commenced building activities ATLANTIC INTERNATIONAL CO. LTD V. JACOB MENSAH ADJETEY & 2 ORS FAL/270/2015 including digging a foundation thereon. It is the case of the plaintiff that prior to the encroachment, the Plaintiff had in the year 2013 leased the land to one Madam Gladys Enti of Gladma Ventures who had commenced building on the land. Before the lease to Madam Gladys, a search conducted at the Land Registry dated 13th September 2012 revealed the registration in the name of the Plaintiff. In December 2012, the Plaintiff’s ownership of the land was confirmed by the Ashaley Botwe family led by one Michael Dsane who received substantial payments from the Plaintiff in consideration. However, the Defendants have defied all warnings from the Plaintiff to vacate the land and or stop further encroachment until the police came in at the instance of the Plaintiff to prevent a breach of the peace. The Defendants activities have disrupted its plans for the development of the land and caused considerable financial loss and hardship to the Plaintiff. The Plaintiff described its land as all that piece or parcel of land situate, lying and being at Ashaley Botwe containing an approximate area of 1.91 acres, bounded on the North by a proposed road measuring approximately 320 feet, on the East by a proposed road measuring respectively 190 and 180 feet approximately, on the South by Lessor's land and partly by proposed road measuring approximately 170, 120 x 30 feet respectively and on the West by a proposed road and partly by Lessor's land measuring approximately 200 feet and 185 feet respectively. The Plaintiff claims the following reliefs: a. A declaration of title to all that piece or parcel of land situate, lying and being at Ashalebotwe. b. Damages for trespass and unwarranted harassment of Plaintiff and his agents and assigns by the Defendants. c. An order for perpetual injunction restraining the Defendants, their agents, assigns and servants and workmen from entering the Plaintiff’s land or in any manner dealing with the same to the detriment of the Plaintiff. ATLANTIC INTERNATIONAL CO. LTD V. JACOB MENSAH ADJETEY & 2 ORS FAL/270/2015 2. The 3rd Defendant was not originally part of the suit. He was joined by an order of the court on the 5th of July 2017 after he was served with the motion for joinder on the 14th of June 2017 which he failed to respond to. He was served with the motion for injunction on the 26th of October 2017. The order of injunction was subsequently served on him on the 3rd of February, 2018. The amended writ was also served on him on the 5th of May 2020 but he never responded to any of the processes and hearing notices served on him. The case was therefore fought between the Plaintiff and the 1st and 2nd Defendants. 3. In defence, the 1st and 2nd Defendants alleged that their land may be different from that of the Plaintiff since a search they conducted revealed that the land was affected by a plotted transaction for Kataco Construction Ltd which acquired a leasehold interest of 99 years from the Ashaley Botwe family. Kataco Construction Ltd then assigned its interest to the 2nd Defendant and the 1st Defendant is the managing director of Kataco Construction Ltd. It is the case of the 1st and 2nd Defendants that when Kataco Construction Ltd acquired the land, it went into effective possession by erecting corner pillars. There was no development on the land until later when someone erected a fence wall and was about to develop the land. They therefore reported the matter to the police and the developer by name Gladys was invited for questioning. The Ashaley Botwe family failed in its attempt at resolving the matter so the matter was referred to the police headquarters. The request by Gladys for the Ashaley Botwe family to prepare a fresh indenture for her was refused on the grounds that the land had already been given out to Kataco Construction Ltd. The 1st and 2nd Defendants counter-claim as follows: a. 1st Defendant makes a claim for a declaration of title to all that piece or parcel of land situate, lying and being at Ashale- Botwe - Accra and bounded more or less on the North - West by Proposed Road measuring 82 by 50.0 by 100.3 by 42.2 by 30.9 feet more or less, on the North - East by ATLANTIC INTERNATIONAL CO. LTD V. JACOB MENSAH ADJETEY & 2 ORS FAL/270/2015 Proposed Road measuring 120.9 feet more or less, on the South - East by Lessor's Land measuring 255.9 feet more or less, on the South - West by Lessor's Land measuring 129.3 feet more or less and containing an approximate area of 0.91 acre or 0.37 hectare, less the land carved out to the 2nd Defendant in the schedule below. b. 2nd Defendant makes a claim for a declaration of title to all that piece of land situate, lying and being at Ashale - Botwe in the Ad M. A District and containing an approximate Area of 0.23 Acre or 0.09 Hectare more or less and bounded on the North - East by Assignor's land measuring 122.3 feet more or less, on the South - East by Assignor's land measuring 130.2 feet more or less, on the North - West by proposed road measuring 79.6 feet more or less. c. General damages for trespass. d. Perpetual Injunction restraining the Plaintiff, its agents, assigns, privies and all those who claim through it from having anything to do with the Defendants land. 4. In reply to the 1st and 2nd Defendants, the Plaintiff alleged fraud on the part of the Defendants on the ground that the land they claim falls within its bigger land. The Ashaley Botwe family having granted the land to the Plaintiff cannot subsequently grant a portion of the same land to the 1st and 2nd Defendants. The Plaintiff states that the Defendants and their grantors are estopped by both conduct and record from laying claim to the land. The Defendants were aware of its possession which was evident by the wall it had constructed but nevertheless entered the land. The Plaintiff listed the particulars of the fraud allegation as: a) Deliberately ignoring or overlooking the earlier interest of Plaintiff registered in the same Lands Commission as far back as 1985 with land Registry No. 746/85. ATLANTIC INTERNATIONAL CO. LTD V. JACOB MENSAH ADJETEY & 2 ORS FAL/270/2015 b) The Mapping and Survey Division issuing a false search result to the Defendants to facilitate the Defendants effort to obtain land title certificate. c) Deliberate want of diligence on the part of the Land Title Registry. 5. The issues set down for determination at the trial are: i. As between the Plaintiff and Defendant who has a valid title and right to the land in dispute. ii. Whether or not the Ashaley Botwe family having since 1978 divested itself of the land by granting it to the Plaintiff is entitled to grant same or a portion thereof to the Defendants. iii. Whether the Defendants having admitted in paragraph 8 of the statement of defence and paragraph 10 of the affidavit in opposition that the Plaintiff had walled the property is entitled to lay claim to a portion of it. iv. Whether the Plaintiff’s land is different from the one claimed by the Defendant when both plots are in the same physical location within the fence wall built by the Plaintiff since 1978 when it acquired the land from the Ashaley Botwe family v. Whether the Defendants are entitled to their counter-claim. vi. Whether or not the dispute on the land was reported to the police? vii. Whether or not one Gladys requested the Ashaley Botwe family to prepare a fresh indenture for her which was refused. viii. Whether or not 2nd Defendant has started the process of registering his interest at the Land Title Registry. ix. An order directed at the Survey and Mapping Division of the Lands Commission to prepare a composite plan and indicate the various positions of the individual lands in issue. ATLANTIC INTERNATIONAL CO. LTD V. JACOB MENSAH ADJETEY & 2 ORS FAL/270/2015 6. I see issues v, vi, vii and viii as non-issues which the court should not waste time on since they will not help in disposing off the real issues between the parties. Issue ix is a prayer for the court to consider and should therefore not have been set down as an issue for trial because by the time the case came to trial, the court had already made that order and it had been carried out. 7. Counsel for the Plaintiff sees only two issues arising from this case which are:  Between the Plaintiff and the Defendant who acquired the disputed land from the rightful owners of the said land and  Whether or not Plaintiff had assumed adverse interest in the disputed land by virtue of its possession and exercise of overt acts of ownership over the land since 1978 and if so whether the overt acts nullify Defendants interest by virtue of their knowledge of Plaintiff’s acts of ownership. 8. Counsel for the 1st and 2nd Defendants on the other hand sees only one issue as what will resolve this dispute and which is:  Whether or not the Defendants land is different from or the same as the land of the Plaintiff. 9. I Agree with the submission of counsel for the Plaintiff that in writing its judgment the court may reset the issues for determination. However, in resetting the issues, the court cannot admit issues that have not been pleaded. Issues for determination should arise from the pleadings and there has to be a joinder of issues. 10. Order 11 rule 8 of C. I. 47 states: ATLANTIC INTERNATIONAL CO. LTD V. JACOB MENSAH ADJETEY & 2 ORS FAL/270/2015 (1) A party shall, in any pleading subsequent to a statement of claim plead specifically any matter, for example, performance, release, any limitation provision, fraud or any fact showing illegality (a) which the party alleges makes any claim or defence of the opposite party not maintainable; or (b) which, if not specifically pleaded, might take the opposite party by surprise; or (c) which raises issues of fact not arising out of the preceding pleading. (2) Without prejudice to subrule (1), a defendant to an action for possession of immovable property shall plead specifically every ground of defence on which the defendant relies, and a plea that the defendant is in possession of the immovable property in person or by a tenant shall not be sufficient. 11. The Supreme Court in DOLPHYNE (NO. 3) V. SPEEDLINE STEVEDORING CO LTD & ANOR1 held that the Limitation Decree, 1972 (NRCD 54), was essentially a special plea which must be pleaded as required by the High Court (Civil Procedure) Rules. If not pleaded, it could not be averted to in submissions to the court and the court would not of its own motion take notice that an action was out of time. 12. The Plaintiff filed a reply to the defence and counterclaim of the 1st and 2nd Defendants and in that reply, the only defence it put up was the defence of estoppel by conduct and record. There was no defence of limitation. Yet 1 [1996-97] SCGLR 514 ATLANTIC INTERNATIONAL CO. LTD V. JACOB MENSAH ADJETEY & 2 ORS FAL/270/2015 counsel for the Plaintiff in his final address set down the issue of adverse interest. The Plaintiff being a Defendant to the counter-claim ought to have pleaded every ground of defence to be relied on. Per the case of GIHOC REGRIGERATION & HOUSEHOLD PRODUCTS LTD V. HANNA ASSI2, the plea of limitation can be used both as a sword and a shield; yet the Plaintiff did not raise that plea in its statement of claim. Not having done so, its counsel cannot rely on that defences in his final address to the court. 13. I have also considered the allegation of fraud made by the Plaintiff in its reply to the statement of defence and I am of the opinion that those allegations are levelled against the Land Title Registry and the Survey and Mapping Division of the Lands Commission. However, Lands Commission is not a party to this suit. Those allegations can therefore not be sustained in this case. 14. I agree that once the identity of the land in dispute is determined vis a vis the land leased to either party, the dispute between the parties would be resolved since they all trace their roots of title to the Ashaley Botwe family. 15. The law is clear that a party who in his pleadings raises an issue essential to the success of his case assumes the burden of proof of it (See BANK OF WEST AFRICA VRS ACKUN3). In MONDIAL VENEER (GH) LTD. V AMUAH GYEBU XV4 the Supreme held that in land litigation, even where living witnesses directly involved in the transaction, had been produced in Court as witnesses, the law would require the person asserting title and on whom bore the burden of persuasion to prove the root of title, mode of acquisition and various acts of possession exercised over the disputed land. It was only where the party had succeeded in establishing those facts on the balance of 2 [2005-2006] SCGLR 458 3 [1963]1 GLR 176 4 [2011] 1 SCGLR 466 ATLANTIC INTERNATIONAL CO. LTD V. JACOB MENSAH ADJETEY & 2 ORS FAL/270/2015 probabilities, that the party would be entitled to the claim. Both sides to this dispute make claims for declaration of title to the disputed land. They therefore have the same burden to discharge. 16. To prove his title to the disputed land, the Plaintiff called Clement Bortie Kodjo who was the only surviving member of the grantors on his document. His evidence was that since the family granted the land to the Plaintiff, the family has not granted the same land or any portion of it to any other person. He tendered into evidence as exhibit “E” a letter he wrote to the Land Registration Division of the Lands Commission for them to disregard any claim by Kataco Construction Ltd to the land since the family had granted same to the Plaintiff. He told the court that the land they gave to the Plaintiff is exactly the land that is contained in the site plan of the Plaintiff. The 1st Defendant on the other hand called Emmanuel Martey Korley who said he is the linguist to the Ashaley Botwe family of Teshie and he also supported the 1st Defendant’s version of the story that the family granted the disputed land to Kataco Construction Company Ltd. 17. A copy of the lease document between the Plaintiff and the Ashaley Botwe family was admitted into evidence as exhibit “A”. Exhibit “B” is a search report from the Lands Commission dated 13th September 2012. The search was conducted with the site plan of the Plaintiff company and the report indicates that the portion marked “A” is affected by a lease dated 20/6/1978 from Numo Cephas Ashaley Nikoi & others to Atlantic Int. Company Limited. The question is, where is the portion marked “A” located? The lease granted to Kataco Construction Company Ltd is also in evidence as exhibit “2” and it is dated 7th February, 2006. Per exhibit “3”, Kataco Construction Company Ltd assigned 0.23 of an acre of its 0.91 of an acre in exhibit “2” to the 2nd Defendant’s church. The 1st Defendant tendered into evidence as exhibit “1” a search report from the Survey and Mapping Division of the Lands Commission. The search ATLANTIC INTERNATIONAL CO. LTD V. JACOB MENSAH ADJETEY & 2 ORS FAL/270/2015 was conducted with the site plan of Kataco Construction Ltd and the results indicate that the site is affected by a plotted request for Kataco Construction Limited dated 27/8/2013 which was before the Plaintiff issued this writ. The 1st Defendant told the court that after the land was leased to Kataco Construction, it started the process of registering it without any indication of any encumbrance. 18. Upon the orders of this court a composite plan was drawn in the matter. The report of the superimposition is in evidence as “CE1” whiles the composite plan is in evidence as “CE2”. PW2 who gave evidence for the Plaintiff company told the court that they were not made aware of the preparation of the composite plan because they did not know when the surveyors visited the site after they submitted their site plan. Contrary to this evidence, both “CE1” and “CE2” show the land the Plaintiff showed on the ground when the surveyor visited the site. The court witness told the court that both the Plaintiff and the 1st Defendant were present at the site when he conducted his exercise. The Plaintiff’s own witness (PW3) also told the court that he was present at the site when the surveyor (court witness) visited the site. PW2’s attempt to discredit the report therefore fails. 19. “CE2” shows that on the ground, both the Plaintiff and the 1st Defendant claim the same piece of land. However, when it came to superimposition of their respective site plans, the site plan of the Plaintiff did not cover any portion of the disputed land. None of the construction activities of the Plaintiff fell within the land covered by its site plan. Even the shape of land claimed by the Plaintiff is different from what is contained in its site plan. It is therefore no wonder that there are two different search results from the parties. The land contained in the respective site plans are not the same. The search report (exhibit “B”) relates to the land contained in the Plaintiff’s site plan and which is marked yellow on ATLANTIC INTERNATIONAL CO. LTD V. JACOB MENSAH ADJETEY & 2 ORS FAL/270/2015 the composite plan and not the land the Plaintiff claims on the ground which is marked red. 20. The 1st Defendant does not lay claim to any portion of the disputed land. The evidence is that the 1st Defendant is a director of Kataco Construction Ltd which is the grantor of the 2nd Defendant. Although the land shown on the site plan of Kataco Construction Ltd falls within the land it claims on the ground, the land contained in its site plan is smaller than it is entitled to per its site plan. In other words, Kataco Company Ltd has amassed more land than it was granted and in fact the land it granted to the 2nd Defendant does not fall within the land it acquired from its grantor. 21. PW2 told the court that the Plaintiff built a wall on four sides of the land and left the frontage open because the company parked its heavy duty trucks on the land. William Kutortse was also put on the land as a caretaker. William Kutortse testified as PW3 and he corroborated the evidence of PW2 that the Plaintiff built a wall around the land it acquired in 1978 but contrary to the evidence of PW2 that William Kutortse was put on the land, PW3 (William Kutortse himself) told the court that it is his office that is near the disputed land so the Plaintiff tasked him to keep watch over the land. PW3 however said he farmed on the Plaintiff’s land. The 1st Defendant on the other hand claims possession for Kataco Construction Company Ltd by erecting corner pillars after acquisition of the land. He said it was recently that he realised that someone had erected a fence wall and was about to develop the land so he reported the matter to the police. 22. What is a fact from the report of the court witness is that the Ashaley Botwe family did not give the same piece of land to the parties in this case. From the composite plan, half of the foundation of Promise Word Ministries is sitting on land that does not belong to its grantor and which could not have been assigned to it because a ATLANTIC INTERNATIONAL CO. LTD V. JACOB MENSAH ADJETEY & 2 ORS FAL/270/2015 grantor cannot give what he does not have. Kataco Construction could not also have granted the portion edged pink on the composite plan to the 2nd Defendant because that portion does not fall within the site plan of Kataco Construction. Two of Plaintiff’s buildings are also sitting on land contained in the site plan of Kataco Construction and not that of the Plaintiff. I therefore make the following orders: a. The court appointed surveyor is to take parties back to the land and clearly demarcate on the ground the land edged violet on the composite plan for Kataco Construction Company Ltd. Per the Defendants exhibit “2”, that is the land leased to Kataco Construction. Leasehold title is then granted to the 1st Defendant and his Kataco Construction Company Ltd over that portion of land. b. The 1st Defendant is to recover possession of any portion of that land from the Plaintiff. c. The claim by the 2nd Defendant over the portion edged pink on the composite plan is dismissed since it does not fall within its grantor’s land. The 2nd Defendant can only be entitled to the portion edged green and which portion falls outside the portion edged pink. d. Leasehold interest is declared in favour of the Plaintiff over the portion edged yellow on the composite plan. The surveyor is to clearly demarcate that portion of land on the ground for the Plaintiff. e. The portion of land outside the land contained in the site plan of Kataco Construction Company Ltd does not belong to any of the parties in this case and should not be scrambled over but considering the strong evidence of possession led by the Plaintiff over that portion of land, on the authority of IN RE ADJANCOTE ACQUISITION; KLU V. AGYEMANG II5 and SUMMEY V. YOHUNO AND OTHERS6, I decree possessory title to the Plaintiff over 5 [1982-83] GLR 852 6 [1962] 1 GLR 160 ATLANTIC INTERNATIONAL CO. LTD V. JACOB MENSAH ADJETEY & 2 ORS FAL/270/2015 that portion of land. The surveyor is to demarcate the portion from P&D1, P&D2 to the boundary of the land edged violet for the Plaintiff. Any portion of the 2nd Defendant’s foundation found on that portion is to be ceded to the Plaintiff. f. I restrain both sides from interfering with the land that would be demarcated by the surveyor on the ground for the other side. g. I make no orders for damages for either side. 23. I would have made no orders as to cost but when both counsel in the matter were asked to address the court on cost, counsel for the 1st and 2nd Defendants offered cost of five thousand cedis to the Plaintiff. The court accepts same and awards cost of five thousand Ghana cedis to the Plaintiff against the 1st and 2nd Defendants. (SGD) ABENA A. OPPONG (JUSTICE OF THE HIGH COURT) ATLANTIC INTERNATIONAL CO. LTD V. JACOB MENSAH ADJETEY & 2 ORS FAL/270/2015 13